Geoffrey James Walker v Canberra Institute of Technology
[2013] ACTSC 193
GEOFFREY JAMES WALKER v CANBERRA INSTITUTE OF TECHNOLOGY
[2013] ACTSC 193 (12 September 2013)
NEGLIGENCE – personal injury – plaintiff injured knee while performing jumping squats –liability of instructor – whether duty of care – whether breach of duty of care
DAMAGES – personal injury – injury to knee
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 7
Court Procedures Act 2004 (ACT), Pt 4, s 21
Canberra Institute of Technology Act 1987 (ACT), ss 3, 4
Financial Management Act 1996 (ACT), Pt 9, s 73
Civil Law (Wrongs) Amendment Regulations 2004 (ACT)
Sydney Corporation v West (1965) 114 CLR 481
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Dennis Johnston v Australian War Memorial and Ors [2005] ACTSC 122
No. SC 322 of 2009
Judge: Higgins CJ
Supreme Court of the ACT
Date: 12 September 2013
IN THE SUPREME COURT OF THE )
) No. SC 322 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:GEOFFREY JAMES WALKER
Plaintiff
AND:CANBERRA INSTITUTE OF TECHNOLOGY ABN 43 273 796 990
Defendant
ORDER
Judge: Higgins CJ
Date: 12 September 2013
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the amount of $255,261.00.
This is a claim for damages arising out of an injury sustained by the plaintiff to his left knee on 5 June 2006.
There is some dispute about the precise circumstances of the occurrence of the injury, however, it is not disputed that the plaintiff was at the time a student enrolled with the Canberra Institute of Technology (‘CIT’) undertaking a course in fitness training with a view to becoming qualified as a personal trainer in fitness.
The particular activity leading to the plaintiff’s injury was an exercise program designed by a fellow student. It was part of the course assessment for that student and some others. The prescribed exercise included what were referred to as jumping squats. That, as the plaintiff described it, was doing a deep knee bend and then jumping up and off the floor before descending down into the deep knee bend position and leaping up again. That exercise was to be repeated for 30 seconds. In the course of that exercise the plaintiff suffered pain in the left knee and it began to swell. However, the plaintiff persisted with the remaining exercises. On returning home he iced the knee, had a hot bath and kept the knee elevated. It continued to be painful, however.
A few days later the plaintiff informed the CIT’s technical manager of his injury and filled out an incident report form. He also referred Mr Everett, the supervisor, to an entry in the text book used in connection with the course, “Rosemary Marchess and Andrew Hill”, “The Essential Guide to Fitness: for the fitness instructor ( Pearson Education Australia, 2005)”. It referred, inter alia, to the duty of care owed by an instructor to clients, and the need, in that context, to be following industry accepted guidelines or using accepted practice. Attention was also drawn to the need to take account of the size of the class, the age and degree of skill of students as well as the activity and, if relevant, the equipment used.
It was common ground that any student proposing an exercise session was required to show it to a qualified instructor who was present to supervise the exercise. The qualified instructor present in this case was Mr Julian Everett, an employee of the defendant.
At p 254, that text refers to potentially harmful practices:
“Potentially harmful practices
Watch out for potentially harmful practices from your participants during the class. Sometimes the participants have picked up unsafe or dangerous habits.
Ballistic type movements involve bouncy and jerky movements that are potentially harmful. Sometimes participants may misunderstand and think that a movement has to be performed quickly and harshly. It’s your job to cue appropriately to avoid this occurring, and if it does, you must try to correct the error immediately.
Deep knee bends involve bending the knees under your body weight to a position where the knee joint is less than 90 degrees. In other words, if you were to squat using a deep knee bend your thighs would be beyond the position of being parallel to the floor – this is not recommended. A fitness facility scenario involves a range of exercise abilities and performing deep knee bends increases the risk of injury. You will see elite athletes, such as Olympic weightlifters, performing this type of exercise. These are extreme circumstances where the individuals are trained for this type of exercise and accept the risks involved.”
At p 255 the practice is illustrated:
The plaintiff raised the issue of his injury when he reported the injury to Mr Everett and referred him to the text book at 254 and 255 (set out above). He did an exam on 15 June 2006. His knee was still painful. He spoke to Mr Everett about it, referring him to the text. Mr Everett responded that he did not believe that the exercise undertaken had been potentially harmful.
It was the plaintiff’s case that, through Mr Everett, the defendant failed to exercise reasonable care for the safety of the plaintiff in permitting the exercise described by the plaintiff to be undertaken by him. As an alternative proposition, it was asserted that the supervision was inadequate in that, even if the exercise itself was not unsafe as prescribed, it was permitted to be performed by the plaintiff in an unsafe manner.
Reliance was also placed by the defendant upon a disclaimer signed by the plaintiff on 7 March 2006. It stated:
“I understand that the Department’s staff are not qualified to provide me with medical advice (beyond basic first aid) with regard to medical fitness and that this information is used as a guide only. The Department shall not be liable for any personal injury or damage to property arising out of or from its activities, notwithstanding that such personal injury or property damage may have been caused by negligence of CIT or its staff.”
That students should be warned that the course involved vigorous exercise is reasonable. That students voluntarily accepted the ordinary consequences of engaging in such activity is also reasonable. However, the defendant submits, albeit not vociferously, that all potential liability for negligence is thereby excluded. On the face of it the exclusion is stated to be for the benefit of the “Department”. That is an apparent reference to the Territory. The Territory is created as a body politic by s 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cth):
The Australian Capital Territory is established as a body politic under the Crown by the name of the Australian Capital Territory.
For the Territory, Part 4 of the Court Procedures Act 2004 (ACT), s 21 provides, in general terms that the Crown in right of the Australian Capital Territory may sue or be sued in the same way as a prosecuting between subjects.
The Canberra Institute of Technology was established by the Canberra Institute of Technology Act 1987 (ACT) (see s 4) (CIT Act).
Part 9 of the Financial Management Act 1996 (ACT) (FMA) which is, by virtue of s 3 of the CIT Act, pursuant to s 73 (1) of the FMA:
(a) is a corporation; and
(b) may sue or be sued in its corporate name; and
(c) may have a seal.
Further under (2)
A relevant territory authority represents the Territory when exercising its functions, unless the establishing Act for the authority or another territory law otherwise provides.
And (3)
A relevant territory authority has the same status, privileges and immunities as the Territory so far as it represents the Territory.
Thus the CIT is covered by the shield of the Crown in right of the Territory so far as that may extend.
On the other hand, it is subject to the same liabilities as the Territory would be.
In that light, the contractual provision I have referred to should be construed as an endeavour to ensure that any claim by, for example, a student, for damages for negligence, should be directed to the CIT, not the Territory. Otherwise, both might have to be joined as defendants unduly complicating the proceedings. Indeed the Canberra Institute of Technology Act 1987 (ACT) predates the incorporation of the Territory, though that eventuality will be covered by transitional provisions. It simply goes to the conclusion that the exclusion clause was directed to administrative efficiency rather than depriving students of any rights to common law damages otherwise appropriate. Indeed, to interpret it otherwise would be breath takingly oppressive. To attribute an intent to the CIT to disadvantage vulnerable students is not a conclusion to which I would readily come. The term “Department” may, I appreciate, refer to a faculty or division of CIT. The form is headed “The Department of Sport, Fitness & Recreation, CIT”. If, contrary to my preferred view, it was intended to deprive all students of any common law right to sue for damages for negligence however egregious, a question must arise as to the fairness of such a term. It was not explained. It was not made the subject of legal advice. The context is of drawing attention to the physical risks of personal injury inherent in the course work to be undertaken.
It is right to interpret such a clause contra proferentem, particularly where the bargaining power is greatly uneven, as is here the case. An example of that approach in Sydney Corporation v West (1965) 114 CLR 481. The clause referred to damage to a vehicle accepted for parking but was held not to extend to giving the vehicle to an unauthorised person. In Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 the clause was held not to extend to the trading of shares without authority. In Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 the exclusion clause was held not to extend to cover vicarious liability. In Dennis Johnston v Australian War Memorial and Ors [2005] ACTSC 122 an indemnity clause between defendants was held inapplicable. It was clearly inappropriate.
None of those cases is directly applicable. Nevertheless, there is no suggestion that the clause was drawn to the plaintiff’s attention or that he was offered any advice in connection with it. In my view, in context, it would be taken as no more than a warning that strenuous activity was involved in the course. It would not be taken to enable the defendant with impunity to require students to engage in activities it knew, though its servants and agents, to be dangerous as I have noted above.
The next ground relied upon was a voluntary assumption of risk. Here, it is important to note that the CIT instructors were possessed of knowledge as to what activities were safe and what were unsafe.
In particular, the question as to whether “jumping squats” were safe or unsafe and whether a student was executing such an exercise safely or not was peculiarly within the knowledge of the instructors and not the students.
Thus, the instructors had a duty to the students to ensure that any exercise to be prescribed by another student for, inter alia, the plaintiff, was not attended by undue risk or executed in an unsafe manner.
The repetition of deep knee bends is, I am satisfied, an unsafe practice. If it was either prescribed or permitted and resulted in physical injury then the CIT would be liable in damages for the consequences.
I turn now to the evidence given by the plaintiff.
He deposed that he qualified, after leaving school in 1964, as a fitter and turner. From age 22 he went to Canada, returning to Australia in 1975.
He came to Canberra in 1985, still working as a fitter and turner. He sustained an injury to his left shoulder in 1990. In 1991 he suffered an episode of renal colic. Between 1993 and 1994 he worked as a contractor erecting outdoor rooms, carports and decks. He then moved to Melbourne, commencing work again as a fitter and turner. In 1996 he suffered a hernia in the course of his employment. He then moved to a firm called Nature Organics. There, he developed an unhappy relationship with the manager who went so far as to cause police to raid the plaintiff’s home, causing distress. There was no proper cause for this. It led to workers compensation proceedings being taken by the plaintiff for depression. There were, at the same time, problems within his home life.
He was treated by a psychiatrist, Dr Sheehan, and a psychologist, Mr Smithwick.
After that turmoil and the breakup of his family life, the plaintiff met his current wife, Ms Carol Walker, and decided to move to Canberra to start a new life. In October 2005, at the age of 56, he decided to train as a fitness instructor, enrolling in a Certificate III course with the defendant. He was, he felt, fitter in 2005 than he had been at age 30. He was, clearly, very fit for his age. Indeed, he could even do “the splits”.
He was accepted for the course and provided a fee of $565.90 on 1 February 2006. He was cleared by his general practitioner to undertake the course but cautioned against over-exertion.
The particular exercise being undertaken was a program designed by students running the course with other students as “the class” to demonstrate the capacity of the students being assessed to design and conduct fitness classes.
The program so designed had to be submitted to the instructor, in this case Mr Julian Everett, then, if it was cleared, it was to be carried out under his supervision.
The demonstration of the particular exercise was described by the plaintiff as “going right down on your knees and then jumping as high as you could with your arms above your head”.
That was to be repeated for 30 seconds.
The plaintiff said that when he commenced the exercise he was urged to go higher and bend down further. It was, as he described it, a deep knee bend.
After about 5 or 6 repetitions, the plaintiff felt a pain in his left knee. He felt a “crunching, flicking type of feeling”.
He told Mr Everett he had hurt his knee. He completed the prescribed exercises.
Around 7 June 2006, he completed an accident report form. He described the event as “Doing jumping squats during an exercise program designed by students”.
The supervisor, Mr Everett commented under a heading “Other preventative action – pre-exercise screening (verbal) before undertaking activity”. It is not clear what deficiency in the program Mr Everett was thereby identifying.
Later, on 15 June 2006, the plaintiff obtained and completed a form giving notice of a claim under the Civil Law (Wrongs) Amendment Regulations 2004 (ACT). Albeit that the plaintiff was a full-time student, he did have employment at the ANU. His description of the injury in that document was consistent. He recorded:
Whilst participating in a student designed program. Was doing a jumping squat for 30 secs. Felt a sharp pain in medial compartment. Finished the other parts of exercise, stopped at the end and did not participate in other two sessions. Went home iced knee, attended doctor 15/6/06 sent for X-rays.
He had also spoken to Mr Shane Kay, Manager of the fitness area of CIT some 3 or 4 weeks later and as a result made a report, dated 2 August 2006, the terms of it are as follows:
This report was prepared at the request of Shane Kay regarding an injury to my knee whilst attending a class at the Canberra Institute of Technology (CIT).
On or about 5 June 2006 whilst I was participating in a student designed exercise class, I was doing a circuit session of 30 seconds of jumping squats, and towards the end of the 30 seconds my left knee began to give me a lot of pain. (Jumping squats require you to jump as high as you can from a deep knee bend squatting position). I persevered and finished the session. Upon cooling down my knee began to swell and when i returned home I iced the knee, had a hot bath and kept my knee elevated all night. The next day I purchased a knee support which helped marginally.
A few days after I had injured my knee (around 7 June) I informed the technical manager Glen Fluit of my injury. I also informed him about the reference in the CIT recommended text (i.e The Essential Guide to Fitness) which I had been reading while studying for the coming exam. The text states on page 254 and 255 figure 7.1a that the deep knee bend is a potentially harmful practice and should be avoided as it is an elite athlete only exercise. Mr Fluit advised me to fill out an incident report form. I completed the form which was signed by Julian and myself and returned it to Mr Fluit on the same day (around 7 June 2006).
On 15 June 2006 when I re-sat an exam I still had pain in my knee and I mentioned my injury again to Julian. I advised him that my knee was still giving me quite a bit of trouble and alerted him to the text referred to above. Julian said he did not think the exercise was harmful.
Following the exam on 15 June 2006 I visited my doctor who suggested I have x-rays, which I did on 16 June. The visit to the doctor and the x-ray cost me $145. I ran Julian to see if I could be compensated for this cost as I am a full time student and have no regular income. At that time Julian advised me that it was not possible as I had signed a form waiving my rights when I joined the Diploma Course by saying I would participate in vigorous exercise (I had completed all exercised right up until the deep knee bending exercise).
It was only after the incident on 5 June 2006 that the plaintiff became aware of the warnings contained in the text book referred to above. Another teacher, Mr Tim Van Dolan allegedly remarked to the plaintiff to the effect that “jumping squats should not be used”, though the plaintiff conceded that Mr Everett had told him, as he reported, that he, Mr Everett, did not regard the exercise as harmful.
As a result of the injury the plaintiff had to forego a part-time cleaning job at ANU he had been undertaking for 4 hours per week. He could not carry out the stair climbing and carrying of a vacuum cleaner involved in that work.
He disclosed in evidence that he had, in 1999, an operation on his left knee to remove the bursa but had no symptoms in it after that.
Following the incident on 5 June 2006, there was an arthroscopic operation. He did obtain employment at Flames Fitness but it appeared that, with the knee disability, he could not move quickly enough to meet the employer’s expectations.
He came to realise as a result that he would not be able to work successfully as a personal trainer.
The ongoing disability preventing that work was pain in the affected knee “the knee falling out” and crunching and clicking.
He will now have to have a left knee replacement. He had one on the right knee following a fall caused by the left knee locking up. He also had problems with his hips arising from the knee disability.
After the injury he continued to work at life modelling. He worked for a real estate agent doing house repairs, garden and general maintenance. He was virtually in full-time employment but suffered from pain and disability with the left knee locking and with weight bearing. He did work for Megasealed Bathrooms, sealing bathroom and shower screens. He found kneeling made continuing with that impossible. He did some cleaning work at the Ainslie Yard Centre. Again, use of the left knee was problematic. He did and does take analgesics for pain but, of course, cannot control the instability. He acknowledged some unrelated neck degeneration.
He also suffered a fall in October 2008 which injured his right knee. That is referred to above and is related to the left knee as noted above.
He also acknowledged lower back pain and panic attacks. Those are not related to the left knee injury.
Complicating this case, there was also a damage case against Bunnings. This related to an injury on 9 July 2007. It complained, inter alia, of:
“(b) pain and limitation of movement in the left knee;
(c) prolongation of recovery from prior surgery to left knee;
(d) Weakness in left knee causing injury to right knee;
(e)Necessity to undergo total knee replacement surgery right knee if necessary to undergo future total knee replacement surgery left knee.”
The matter was settled by agreement in December 2012 for $75,000 plus costs.
The Statement of Particulars in that dispute claimed that the plaintiff would have returned to work earlier had he not sustained the fall at Bunnings. He claimed a “buffer” of $50,000 for exacerbation of existing disabilities and the head and neck injury. He claimed $80,000 for future economic loss.
In the current matter he had incurred expenditure of $1561.00 for past expenses and, in total, claimed $31,600 for future expenses including $30,000 for the knee replacement to the left knee. I consider this to be a reasonable estimate.
It did appear that there was no expense involved for the right knee replacement. It follows that the $75,000 agreed upon was, mostly, for the exacerbation of the pre-existing injury. Nevertheless, it does include, to some extent, compensation for the original injury.
Certainly, it appears that the plaintiff’s impression, understandably, was that the fall at Bunnings had aggravated the right knee condition. I have no doubt that it felt worse as he said. It also appears, however, that Dr Stubbs was satisfied that no additional damage had been done to the right knee. Certainly, the cranial impact was a fresh injury.
The plaintiff had some history of injury claims, to both wrists and the left ankle. Each of those injuries seem to have been successfully treated by 2005. Whilst they had no ongoing effect, they do illustrate the vicissitudes that can affect employment, particularly of a physical nature. It also illustrated some more generalised deterioration in the plaintiff’s neck particularly, which was, clearly enough, going to limit his longevity as a fitness instructor in any event.
The plaintiff agreed that, perhaps in 2002, there had been some minor symptoms in his left knee, though he now, in April 2013, could not recall that. He had, however, so stated in an affidavit dated 12 December 2002 and I therefore accept the proposition that the plaintiff did in fact have such prior symptoms.
In my view, in context, accepting some symptoms were then experienced, it is clear that they were not debilitating and, given the underlying pathology, unsurprising.
He had in July 1997 felt knee pain arising from bursitis. The bursa was later removed. I do not think the plaintiff was deliberately downplaying the experience, but it is clear that, since that operation, he had not had any significant disability in the left knee until the event at CIT the subject of these proceedings.
A point was made that whilst the plaintiff was being paid compensation, certificates were issued without examination or enquiry. I am not persuaded that was so nor would there seem to have been any reason for the plaintiff to fabricate that. I realise that, mostly, minimal enquiry would have been made or required. I would expect that the plaintiff might well have forgotten any such conversations, regarding the continuing medical certificates as a mere formality. The certificates did support the view that, as late as 2003, the plaintiff had some left knee symptoms and, perhaps, neck symptoms. They were, obviously enough, insufficient to prevent the plaintiff from being fit enough for the course he undertook. Nevertheless, for whatever reason, the injury to the left knee was not disclosed in particulars provided on 25 May 2009.
The plaintiff’s answers to questions concerning past injuries were predominantly unhelpful. He seems to have had little recollection of his own history.
He did assert that, before being asked to do the jumping squats, that exercise had not been the subject of any warning.
I accept it as likely, having regard to Mr Everett’s evidence, that the risks of the exercise were not explained.
Mr Crowe SC suggested that one of the other student instructors showed the class that the jumping squat did not involve bending the upper legs beyond 90 degrees to the floor and suggested that the plaintiff simply landed awkwardly on his left leg rather than engaging in the deep knee bends that he referred to..
The plaintiff did gain some employment at Flames Fitness as a gym instructor after his graduation. That experience did reflect the accuracy of Mr Shaun Rowland Vincent’s evidence (infra).
It was suggested also that the plaintiff had only belatedly attributed the fall from the shed, jarring his right knee, to the locking of his left knee.
I am satisfied that having regard both to the disabilities then being experienced by the plaintiff by January 2009, that locking of the left knee was something that might well have occurred causing the fall. It was first reported in November 2009 to Dr Marshall.
However, though Mr Crowe might point to that late report, it is not improbable that the causal effect of the left knee might not immediately be volunteered. It was noted some 10 months later. Whilst it would be open to doubt the plaintiff’s evidence, I felt that, though his recollections were imperfect on some matters, he was attempting to be truthful. He did concede matters quite readily which would mitigate his claim. He was overly pedantic in dealing with matters of record that he no longer clearly recalled but I do not think that was to his discredit.
I accept that the fall injuring the right knee was contributed to by the condition of the left knee.
After his Certificate III course he tried out at Flames Fitness but was disheartened by his lack of ability as a result of his knee disability.
He took up maintenance/gardening duties at Aranda School. He coped with that but had problems with physically arduous work. His wife, Carol Walker, referred to the fall at Bunnings, about 8 months later and the fall from the ladder in October 2008.
Her evidence as to those matters was entirely consistent with that of the plaintiff.
The defendant’s medical evidence, for example, Dr Smith, does not alter the situation. There is general agreement that the “jumping squat” “caused a tear to the meniscus. That effectively caused not only the disability in the left knee but, effectively, led to the injury to the right knee. That knee has been replaced. The left knee will need to be replaced.
All medical experts also agree that the exercise described by the plaintiff is and was, to quote Dr Stubbs report on 16/11/06, “inviting disaster”.
Dr Andrew Walder
Dr Andrew Walder, a general surgeon, was called to supplement his reports of 24 January 2009, 15 October 2011 and 16 February 2013. In brief, he noted and accepted the plaintiff’s claim of ongoing pain and disability in the left knee. He noted the fall at Bunnings and the fall at home which had jarred the plaintiff’s right knee. He opined that ongoing physiotherapy would be required. He accepted that the fall at home was caused or contributed to by the disability in the left knee. He strongly disputed the suggestion that the left knee injury had no long term effect on the deterioration of that knee. He pointed out that the plaintiff was fit enough in 2006 to undertake a fitness instructor’s course and had a considerable degree of deterioration over the following 6 years, beyond the natural deterioration one might expect. He accepted, in cross-examination, that there had been significant osteo-arthritic changes in the plaintiff’s left knee before 2006. He also accepted that the Bunnings fall was likely to have aggravated the underlying condition. He agreed, however, that the tear to the meniscus in February 2007 could be a result of “landing awkwardly” from a jumping squat. That risk was, in my view, in any event, inherent in the exercise and was, no doubt, a reason for regarding such an activity as dangerous. However, there is reason to doubt whether such a landing occurred.
Shaun Rowland Vincent
Mr Vincent, who had qualified as a fitness instructor through the Australian Institute of Fitness in 2004, was called. The course had taken him 15 months to complete.
For conducting fitness classes, he deposed, he would receive $30 to $50 per hour. For one-to-one personal training the rate would be $100 per hour. Another avenue after work was conducting “boot” camps.
Mr Vincent was, it appears, conducting his own business and the principals of the business charged out at $100 per hour. However, new instructors would be paid as little as $30 per hour for anything from 1-8 hours weekly.
Ms Purnell SC conceded that he could not assert an earning rate for a person in the plaintiff’s position, beyond $35 per hour. However, Mr Vincent also indicated that his instructors were required to have completed Certificate IV in fitness.
He did comment that jump squats should not be performed with the upper leg over 90 degrees from the floor i.e. no deeper than that, particularly for those not trained in such activities “to prevent injuries”.
Mr Vincent also conceded many of the people who trained as fitness instructors made little money and moved on to something else reasonably quickly. Those who might be qualified only to Certificate III would probably earn only $18-25 per hour and would probably only get about 25 hours work per week.
Ms Carol Walker
The plaintiff’s spouse, Ms Carol Walker also gave evidence. They first cohabited from May 2005. Until the event at CIT in June 2006 she had not observed the plaintiff to have had any problem with his left knee. He was very fit and health conscious. He had expressed an ambition to be a personal trainer for older persons. The course, Certificates III and IV, would take 2 years. She became aware of an injury in June 2006 whereby his left knee was injured. It was swollen and he was applying ice. He told her it had occurred as a result of doing jumping squats. He had to get a knee guard as he had a limp and apparently suffered pain. She described various medications she observed him to be taking.
Dr Pasquale (Louise Christine)
She did not differ from Dr Smithwick that the plaintiff had anxiety and depression consequence upon an adjustment disorder. However, she did not have any examination reports or scans.
However, whilst she pointed to the difficulty of arriving at an opinion as to the mechanism of the damage to the plaintiff’s left knee, she did agree that an activity, such as the jumping squat the plaintiff described, “could cause damage in the knee.”
That damage she agreed could give rise to the symptoms and disabilities of which the plaintiff complained. In particular, the locking or giving way of the knee whilst climbing a ladder – similar to the activity which the plaintiff asserted led to his fall, jarring the right knee.
She did insist that arthritis can “quite often” cause a tear within the knee.
It may be concluded from Dr Pasqualie’s evidence that, though the plaintiff’s left knee was predisposed to injury, the jumping deep squats were likely to cause an injury of the kind which apparently occurred.
Indeed in re-examination, she opined that even a “normal” squat could “probably” result in injury. Landing awkwardly would add to the risk. However, given his state of degeneration, she felt his career as a fitness trainer, even absent of the injury, was likely to be short.
Mr Julian Everett
The defendant called Mr Julian Everett, the instructor in charge of the class the plaintiff was participating in when he suffered injury.
He described his recollection of the activity as:
.performing what I would call a partial squat. And he would go down to a partial squatting movement and he would jump into the air and then land again. I believe he conducted three or four repetitions of that movement and upon landing he grabbed his leg.
Which leg? . . .The right leg. I believe. I don’t recall.
It must be acknowledged that Mr Everett was endeavouring to recall details of an event occurring nearly 6 years previously. He also stated, however, that there was “nothing unusual” in the way that the plaintiff landed. That is inconsistent with a proposition that it was the plaintiff’s awkward landing that caused the injury, not the exercise itself, though as I noted that would not excuse the defendant even if it was so.
Mr Everett recalled a conversation with the plaintiff about a week later. The plaintiff told him that his knee was very sore and that he believed the exercise which had involved a deep squat was responsible, that is, the jumping squats. Mr Everett responded, he said, that it was a partial squat.
Mr Everett claimed to have made a written statement about the incident approximately 1 week later. However, the form of the document which he produced as answering that description suggested that it could not have been written close to the incident itself but must have been compiled a considerable time later. He could not recall whether he filled out the accident report form (ex 3 doc 6) before or after the plaintiff had filled out the section relating to him. He did agree, however, that he had altered the student ‘instructors’ exercise program from “bound jumps” to “squat jumps”. He conceded that he did that because he regarded “bound jumps” as potentially harmful.
There was also some confusion in Mr Everett’s evidence as to whether the plaintiff had “landed awkwardly” in the final squat jump he performed before clutching his leg. He conceded some inconsistencies in the evidence he gave in chief concerning the incident when taken to the prior statement he had prepared. In fact, he conceded that his only accurate recollection was of the plaintiff being injured, that is, clutching his right leg about the knee in obvious discomfort in the course of or following a jumping squat.
Even that, of course, was inaccurate to the extent that it was the plaintiff’s left knee and not the right that was injured.
It was apparent to me that Mr Everett could not accurately recall whether some of the students were or not doing deep squats as opposed to partial squats. He did not recall, though he did not deny, that the plaintiff was told to go higher and lower in the squat jumps. It was significant that Mr Everett did not agree with the statement in the course material, which he had apparently provided to students, that:
All exercises involving bouncing on the balls of the feet, deep knee bends or repeated or jerky use of one set of muscles can be damaging.
Mr Everett’s position seems to me to have been somewhat ambivalent. He denied that the class was asked to perform deep knee bends with the jumping squats, though he took the view that there was no real risk in so doing. He rejected the text book warnings to that effect, though he apparently knew of them. I think it is improbable that if the plaintiff had performed deep knee bends or was asked to jump higher or squat lower that Mr Everett would have noticed. Accordingly, it is more likely that the plaintiff’s recollection is accurate and I accept it as accurate.
That the warning was well-founded appears also from the medical experts, including the defendant’s experts.
It follows, in my view, that the plaintiff has established that the exercise was conducted in a manner that exposed him to unnecessary and unreasonable risk of an injury of the kind that occurred.
Damages
It is not a case where the plaintiff was unlikely to have suffered disabilities the kind which has led to his need for knee replacements. I consider it unlikely also that he would have found remunerative employment in the fitness industry beyond the medium term, and then only after he had completed Certificate IV.
Relevant to his prospects was the evidence of Mr Warby, a fitness instructor, who had both trained and, later worked, with the plaintiff. He said that work was available for only 9 or 10 hours per week at $9 per hour for a person in the position of the plaintiff.
It seems to me that it was unrealistic to assume the personal fitness training, even absent the knee injury, was going to enhance the plaintiff’s pre-existing earning capacity.
There is also the pre-existing degenerative process, to which the plaintiff was already subject, to be taken into account. The injury clearly did advance that process by approximately 2 years, maybe a little longer. As at the date of the accident I am satisfied that the plaintiff had a capacity, albeit not being exercised fully, to earn about $35,000 net per annum. The reduction in that capacity is not capable of precise calculation. I would estimate it at 10% to 20%. I would allow as a buffer for past economic loss, $20,000. A similar process applies to the future, albeit at a greater rate. I would allow $40,000. Interest is to be added thereto at the conventional rates.
The past medical expenses are not great. I allow them at $1561.00 (plus interest).
For the future medical treatment, I allow a buffer of $1000 for medication and $30,000 for the left knee surgery.
It remains to consider the question of general damages. I consider that $125,000 plus interest is appropriate. For the purpose of interest, I attribute 1/3 to the future.
That warrants a verdict as follows:
General Damages $125,000.00
Interest on 2/3 @ 4% p/a for 7 yrs 3 months rounded to $25,000.00
Out of pocket expenses $1,561.00
Interest according to the Court Procedures Rules rounded to $800.00
Future – unchanging surgery $31,000.00
Loss of earning capacity
Past loss $20,000.00
Interest at prescribed rate rounded to $6,500.00
Future loss $40,000.00
Loss of superannuation benefits
Past @ 9% of past loss $1,800.00
Future @ 9% of future loss $3,600.00
___________
$255,261.00
That seems an appropriate figure and I enter judgment accordingly. I will hear the parties as to costs.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 12 September 2013
Counsel for the Plaintiff: Mr J Purnell SC
Solicitor for the Plaintiff: Blumers Personal Injury Lawyers
Counsel for the Defendant: Mr R Crowe SC
Solicitor for the Defendant: ACT Government Solicitor
Date of hearing: 8, 9, 10, 11, 12 April 2013 and 24 June 2013
Date of judgment: 12 September 2013
0
4
0