Qld Gymnastics Assoc Inc v Wight
[2000] QCA 466
•17 November 2000
SUPREME COURT OF QUEENSLAND
CITATION: Qld Gymnastics Assoc Inc v Wight [2000] QCA 466 PARTIES: TERRY JOHN WIGHT
(plaintiff/respondent)
v
QUEENSLAND GYMNASTICS ASSOCIATION INC
(defendant/appellant)FILE NOS: Appeal No 80 of 2000
DC No 137 of 1998DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Maryborough
DELIVERED ON: 17 November 2000 DELIVERED AT: Brisbane HEARING DATE: 6 September 2000 JUDGES: Pincus and Thomas JJA, Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER: Appeal allowed with costs, to be assessed
Judgment below set aside and in lieu order that the action be dismissed with costsCATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – respondent injured whilst performing gymnastics routine – trampoline demonstration for study session – experienced athlete, representative level – whether duty breached by failure to use throw-in mats for safety – whether skill dangerous and outside range of expertise – whether risk foreseeable
Clark v Ryan (1960) 103 CLR 486, referred to
Commissioner for Government Transportation v Amacik (1961) 106 CLR 292, referred to
Da Costa v Australian Iron & Steel (1978) 20 ALR 257, referred to
Neill v NSW Fresh Food & Ice (1963) 108 CLR 362, referred to
Wyong City Council v Shirt (1979-80) 146 CLR 40, referred toCOUNSEL: K S Howe for the appellant
P J Goodwin for the respondentSOLICITORS: Gadens Lawyers for the appellant
Morton & Morton (Maryborough) for the respondent
PINCUS JA: I have read the reasons of Thomas JA and those of Muir J. The evidence was sufficient to justify a finding that use of a throw-in mat would probably have prevented the injury suffered by the respondent; but there was, in my respectful opinion, no evidence on which it could reasonably be found that failure to use a throw-in mat was negligent. The proper conclusion was that the injury the respondent suffered was an unfortunate accident and the learned primary judge should not have taken the step from finding that a means of preventing the injury was available to the finding that the appellant's failure to provide such means was negligent.
I am in substantial agreement with the reasons given by Thomas JA and Muir J and agree, also, that the appeal must be allowed, with costs to be assessed; the consequence is that the judgment entered below must be set aside and replaced by a judgment dismissing the respondent's action, with costs.
THOMAS JA: The facts are stated in Muir J's reasons which I have had the advantage of reading.
The learned trial judge, Botting DCJ, found that the appellant breached its duty of care to the respondent in only one respect namely, "in failing to ensure that the mats were installed the defendant failed to discharge the duty that it owed to the plaintiff to take care for his safety".
I agree with Muir J's reasons for holding that such a conclusion was not reasonably open on the evidence. In addition, I would observe that the evidence is singularly lacking as to the sort of protection that would be given by a "throw-in mat" and how and when a mat would have been inserted if it were to be used for such a manoeuvre. The plaintiff did not address the question in evidence-in-chief, but in one answer under cross-examination said "I think the matting would have been necessary". The only other evidence on this point helpful to the respondent is the statement by Ms Smythe, again under cross-examination, that "If I was going to ask them to do something that they considered unfamiliar, I would probably pick up something like a mat and use it as assistance for their landing". Quite apart from the question whether the first part of this proposition is satisfied, it is evidence only of what one person would do on such a premise. As well, there was evidence to the contrary suggesting that throw-in mats would never be used for such a simple skill as that which the respondent was performing.
In my view the relevant issue was never properly explored. Evidence was not led as to situations in which mats are used and with what effect. There was no evidence equivalent to what might be described as industry practice. There was no evidence as to where the mats were kept or how the manoeuvre of their insertion would be performed. It is not a matter that is readily answerable by a judge's everyday experience. If it is an issue which can properly be judged without the benefit of expert opinion, a judge or jury should at least be provided with evidence which enables a relatively clear comprehension of the physical factors involved. The evidence does not come close to doing this.
There are further grounds upon which in my view the appeal must be allowed. In my view the learned trial judge erred in thinking that the respondent was asked to perform a skill or a manoeuvre that was different in kind from his previous experience. The suggestion that the twist be performed late is surely no more than a suggestion that it be performed somewhere towards the end of the continuum between early and late. It could not reasonably be taken as a direction to do something later than the performer thought he could safely accomplish. It seems to me that the findings of the learned trial judge have converted the relevant suggestion into one that foisted upon the respondent a brand new type of exercise with which he was unfamiliar.
Further, the context in which the plaintiff came to receive this instruction or request is relevant. During the session in question Mr Hery had been demonstrating basic trampolining skills. The respondent regarded himself as above the need for such instruction. He says that he volunteered at the start of the presentation "to do whatever". To the suggestion that it was a way of showing off to the other coaches he responded, "Well, I wasn't going to learn anything from the session, so I may as well have done something worthwhile". In short, the respondent sought the opportunity to demonstrate his skill, and Mr Hery was well justified in regarding him as an expert. When Mr Hery asked him to perform a piked front somersault with a late half twist, or as the respondent describes it "with a really late half twist", the respondent said no more than that he "wasn't confident" doing that skill. The case that he presented in court was that the late twist made the manoeuvre a different skill, but that, I think, is contrary to all the other evidence. His evidence was that he had not done "this manoeuvre" before. If it truly was a different manoeuvre, he should have told Mr Hery that he had never done it before. But he did not do this. His evidence is, "I didn't say that I hadn't done this manoeuvre before, but I said I wasn't comfortable with doing this manoeuvre." Mr Hery can hardly be blamed for failing to cancel the exercise on the basis of this misleading statement which implies that the respondent had some experience of the manoeuvre but was merely not comfortable with it.
In my view neither the essential preliminary finding that a new type of manoeuvre was involved nor the conclusion that the appellant was under a duty to call for the use of mats when the respondent performed it are sustainable on the evidence.
The appeal should be allowed with costs.
MUIR J: The respondent, Terry John Wight, was aged 19 when, on 14 January 1998 at the gymnasium of the Chandler Sporting Complex in Brisbane, he was injured while performing a gymnastic routine. He claimed for damages for personal injuries against the appellant, the Queensland Gymnastics Association Inc in an action in the District Court. After a trial of the action, it was ordered on 30 November 1999, that the appellant pay the respondent the sum of $85,692.50, together with costs to be assessed. The appellant appeals from that judgment.
The grounds of appeal are as follows:
“2.His Honour erred in finding that when performing a barani the plaintiff’s experience was that for this procedure the twist was always performed early in the somersault and not performed late;
3.His Honour erred in finding that the plaintiff had had no previous exposure to this type of procedure involving a late twist;
4.His Honour erred in finding that in Queensland the exercise is usually taught and performed with the twist occurring early rather than late;
5.His Honour erred in finding that the plaintiff conveyed to George Hery that he was lacking in confidence in performing the requested exercise that that it must have been clear to George Hery that the plaintiff was reluctant to attempt that exercise;
6.His Honour erred in finding that there was evidence to support the finding that the use of ‘throw-in’ mats would have avoided the injured (sic) to the plaintiff.”
There is no ground 1.
Background facts
The following recitation of non-contentious facts will serve as a background for discussion of the matters raised in the grounds of appeal. The respondent had been an active gymnast and trampoline athlete since he was about five years of age. He first represented Queensland, and also Australia, in 1989. He represented Queensland on seven other occasions and Australia on two further occasions. His experience was principally in trampolining and he became a qualified trampoline coach at the minimum permissible age of 16.
A trampoline coach, in order to maintain accreditation, must undertake a specified number of hours study with appropriately qualified persons. On 14 January 1997, with a view to maintaining his accreditation, the respondent was attending a “congress” held by the respondent at the Chandler Complex, Brisbane. The respondent engaged expert coaches to give coaching or tutoring at the “congress”, which cost persons such as the respondent some hundreds of dollars to attend. One of the coaches, Mr Hery, was a resident of the United States who had been studying and teaching gymnastics for about 40 years. He had won the World Professional Trampoline Championships in 1964. His coaching experience was mainly in the United States, but, over the years, he had been a guest lecturer in trampolining in many other parts of the world.
The respondent volunteered to do some demonstrations at a trampoline session conducted by Mr Hery in the centre’s gymnasium. In exercising a pike front salto with a twist on the trampoline, the respondent, instead of landing on his feet on the trampoline as intended, landed head first and sustained a spinal injury. The pike front salto with a half twist commenced after the majority of the somersault has been completed is known in trampolining as a “barani”. The piking position was explained by the respondent as “reaching up into legs/chest as close to your legs as possible rotating forwards”.
A “throw-in mat” made of foam some 10 cm deep so as to absorb some of the shock of the trampolinist’s impact is a safety device used in the sport. The circumstances in which it is used were not explained in evidence in much detail. It seems that a trampoline coach or appropriately skilled person observes the trampolinist’s manoeuvre and throws the mat onto the trampolinist’s expected landing place if it is thought that the trampolinist might land in a risky way.
Grounds of appeal 2, 3 and 4
I now turn to the grounds of appeal. It is convenient to consider grounds 2, 3 and 4 together. The findings the subject of grounds 2, 3 and 4 are contained in the following passage from the primary judge’s reasons –
“It seems to me whatever the truth may be that the reality of the situation is, and I certainly make this finding, that the plaintiff’s experience was that for this procedure the twist was always performed early in the somersault, as it were, and was not performed late. I find that he had no previous exposure to this type of procedure involving a late twist bearing in mind his experience and, as I say, some parts of Miss Smythe’s evidence.
It seems to me the likelihood is, if it should be necessary for me to find it, that at least in Queensland the exercise is usually taught and performed with the twist occurring early rather than late, but it seems to me the most important finding is the one I have first announced, namely, that I am more than satisfied in this case the plaintiff had not had exposure to the particular technique that he was required to perform on this occasion.”
The respondent’s evidence, which was accepted by the judge, supported these findings.
One other witness gave expert evidence in relation to the sport of trampolining in the respondent’s case. That was Kerry Smythe who, by the time of trial, had been State Director of Coaching in Queensland for six years. She had also been the national coach for seven of the last nine years and a trampolining coach for 21 years. In her role as State Director of Coaching, she was involved in teaching, convening and lecturing in courses for coaching accreditation.
Miss Smythe’s evidence on the issues now under consideration included the following –
· She described a “late twist” as a twist after “the somersault is executed and the majority of the somersault is done before the twist is put on”. She accepted that this was a description of a “barani”.
· A barani with such a twist, is performed regularly and is considered a basic skill. A barani with a late half twist was “well and truly within the capacity and abilities of the plaintiff”.
· Children as young as six and seven are taught to perform the barani and it is considered a “a rudimentary basic skill”.
· Even an experienced gymnast who had not previously executed a barani with a late twist might, when executing such a routine, “over rotate their somersault and then find it difficult to actually put the half twist on for a vertical landing”.
· “If the direction was to twist as late as possible then that would be considered an unfamiliar action for trampolining, to twist as late as possible at the end of the somersault.”
Miss Smythe was asked of the routine in cross-examination –
“In fact, isn’t it learned – isn’t it taught within the first few months of training at some schools? - - No, definitely not.
Level 4? - - Level 4. We commence it at level 1 in trampoline sports.”
No explanation of the significance of levels was provided.
Counsel for the respondent did not question Miss Smythe about whether there was any practice within the sport regarding the timing of the execution of a twist when trampolinists were being taught the barani.
Melanie Tonks, a former competitive trampolinist who had coached in Brisbane for 21 years, was called in the appellant’s case. She had coached many Australian representative trampolinists, including two Olympians. She gave the following evidence –
· A barani is “an extremely basic skill for an advanced trampolinist. … It’s considered … a basic trampoline skill.”
· She has taught baranis to children to as young as four and five.
· When asked if she considered that the respondent was being subjected to a dangerous manoeuvre by being asked to do a “pike front salto with a late half twist”, she responded that she did not consider it a dangerous move and said, “That’s actually how I teach the skill”. She was then asked “What about if we added the words ‘extremely late half twist’…”. She responded, “… that’s how you teach the skill. You, say, do a front sault and, just before you land on your feet, turn around. That’s pretty late”.
· She said she was sure that she had seen the respondent doing the barani with a late twist, that she had seen the respondent compete and that “a barani is in the set routine that (competitors) must do”. There was no challenge to that evidence in cross-examination. Nor was she challenged in cross-examination on her evidence that the barani was normally taught with a late half twist.
· She conceded that the twist could be done “in a lot of different stages”.
When cross-examined about difficulties which might be experienced by persons asked to do a late half twist when they had been accustomed to performing it early, she said of the late twist “This is a round off action is what gymnasts – how gymnasts learn it”.
In re-examination, she re-affirmed that even if she had assumed that the respondent had not done a front salto with a late half twist, she would not have expected that he would have had difficulty with the routine.
George Hery, who was called by the appellant, described the barani as “a fairly simple skill”. In his opinion, there was not much difference in difficulty between performing the barani with a twist in the middle and with a late half twist. He said that in the United States, the skill is taught before athletes are at a competitive level and that children as young as five are taught the skill. He rejected the contention that the degree of difficulty with the routine increased by reference to the lateness of the twist. He said that the twist is always taught late, rather than at the beginning.
The foregoing may be contrasted with the following evidence of the respondent in cross-examination about the routine he was asked to execute –
“Are you suggesting this manoeuvre was novel? - - No.
“No. Well, would you regard it as an intermediate type skill?- - I regard this as a skill that isn’t done. No-one performs that skill this way.
No-one performs that skill this way?- - Well, I have never seen anyone.”
The evidence of the witness Tonks was directed, essentially, to her own practices, but the passage from her evidence quoted in par [24] above may be thought to make reference to a general practice or norm in the sport.
This review of the evidence makes it impossible, in my view, to sustain the finding that the barani is usually taught and performed in Queensland “with the twist occurring early rather than late”.
The evidence also casts considerable doubt on the respondent’s evidence to the effect that the routine he was asked to perform by Mr Hery was completely foreign to him and outside the range of his expertise. I am not prepared to conclude though, that the findings in that regard were not open on the evidence. The evidence as to the teaching of the barani, at least where the Australian witnesses were concerned, tended to concentrate on the practices of the witnesses rather than the practice, if any, in the sport.
Miss Smythe’s evidence gave some implicit support for the respondent’s evidence to the effect that he had not performed the routine under consideration and that a person in his position may have difficulty in executing the routine successfully. Furthermore, there was a degree of confusion in some of the evidence arising out of the use of the expression “barani” and from a failure, in eliciting some of the opinion evidence, to focus on the precise routine which the respondent said he was requested to perform. In these circumstances, the trial judge, having seen the witnesses and the unfolding evidence, enjoyed a district advantage over the members of the Court on the appeal.
Ground 5
Ground 5 can succeed only if the state of the evidence was such that the judge should not have accepted the respondent as a credible witness. The evidence under consideration amounts to a contest between the recollection of the respondent on the one hand and that of Mr Hery on the other. Not surprisingly, the respondent professed a clear recollection of the circumstances surrounding his mishap. Mr Hery did not claim a clear recollection of the relevant conversation. The respondent’s credibility on the point was not damaged in cross-examination and the judge was entitled to accept his evidence.
Ground 6
I consider that this point lacks substance. It is true that the evidence concerning the effect of throw-in mats, if used, is sketchy. There is, however, the evidence set out in par [16] above as to the nature of the mats. There is also evidence that such mats were used in the sport with a view to preventing the injury which might otherwise result from a fall. It was far from clear to me on the evidence that such mats could always be positioned appropriately to protect a person against a fall, but any difficulty in this regard was not canvassed in evidence. The case appeared to have been conducted on the assumption that, if used, mats would be effective to cushion a fall. Certainly, there was no suggestion to the contrary in cross-examination or evidence-in-chief.
Matters not included in the grounds of appeal but argued on the hearing
In the appellant’s outline of submissions, another argument outside the grounds of appeal was advanced. It was that the primary judge erred in law in finding that the potential consequences and risk dictated the placing of throw-in mats on the trampoline at the time of the demonstration. It was argued that this finding was inconsistent with the evidence in that –
(a) it failed to have regard to the respondent’s experience;
(b) it failed to have regard to the fact that “the plaintiff had expressed the view to Mr Hery that he was a highly skilled trampolinist”;
(c) the subject manoeuvre was straightforward and it would have been offensive and humiliating to the respondent to use throw-in mats;
(d) it was not standard or accepted practice for an experienced and senior gymnastics coach to use throw-in mats in such circumstances.
No objection was made to these arguments being advanced by the appellant’s counsel and they were within the scope of the case pleaded and advanced at trial.
The appellant accepted the existence of a duty of care. The question for determination is therefore whether the trial judge was correct in concluding that the appellant breached its duty of care as a result of Mr Hery’s failure to use a throw-in mat or throw-in mats.
The appellant was a very experienced trampolinist. Mr Hery had no reason to suppose to the contrary. The respondent admitted telling Hery that he was “a highly experienced competitor (who) had competed at an international level”, and that he had volunteered to give demonstrations to a group of experienced gymnasts and trampolinists. By offering to demonstrate before such an audience he was further proclaiming, albeit implicitly, a high degree of confidence in his trampolining skills.
The respondent’s counsel relied heavily on the respondent’s evidence of what passed between the respondent and Mr Hery prior to the accident –
“I volunteered to do some demonstration for him then and he gratefully accepted and he asked me to perform a pike front somersault with a really late half twist which isn’t how I train it. The way I train it first off is piking and then opening out and twisting and so when you can see the mat the whole way down which is the safe way to do it, and the way that everyone I know does it, and he asked me to do it the other way, as I said before, and I asked him – I said I wasn’t confident doing that skill and whether we could demonstrate the same twisting action in a different skill and he said “No” and he would like me to do this skill this way and I did.”
In particular, it was pointed out that the respondent had broached his lack of confidence with Mr Hery. It was submitted that the respondent was in a position where to decline to perform the routine, having offered himself as a demonstrator, would have been embarrassing. There was thus pressure on him to accede to Mr Hery’s request, even if to do so was against his better judgment.
Looking at the matter from Mr Hery’s perspective, he was not asking an experienced performer to do anything beyond the mundane. The manoeuvre the respondent was requested to execute was one undertaken by comparatively inexperienced athletes in the United States. There was nothing which could have served to alert Mr Hery to the possibility that the experience in the sport in Queensland may have been different. It was not suggested to him in cross-examination that practices in relation to the teaching and performance of such routines may differ from country to country and that he ought to have understood that. Indeed, Mr Hery’s experience in the United States accorded with the local experience of the two highly qualified coaches who gave evidence.
Mr Hery believed, as was the fact, that he was dealing with a very experienced athlete. The concern expressed by the respondent to Mr Hery was a lack of confidence in “doing that skill”. He did not inform Mr Hery that he had not done it before and that it was completely unfamiliar to him. Mr Hery was entitled to expect that if the respondent perceived a risk of injury to himself, he would have said so or suggested that some appropriate precaution be taken. In the circumstances, Mr Hery was entitled to expect that the respondent’s concern was directed more to the possibility of a less than flawless performance than to a perceived lack of ability to perform such a relatively basic routine.
In Wyong Shire Council v Shirt,[1] Mason J, after stating that in deciding whether there has been a breach of a duty of care the tribunal of fact must first consider foreseeability of a risk of injury to the plaintiff or to a class of persons including the plaintiff, continued –
“If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can competently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.”
[1](1979-80) 146 CLR 40 at 47-48.
The evidence is that mats were “available” at the centre. It is not suggested that they were immediately to hand or that Mr Hery knew or ought to have known of their “availability”. I am prepared to accept that mats could have been obtained without Mr Hery’s presentation being disrupted to a significant degree.
The evidence though does not support the conclusion that a reasonable person placed in Mr Hery’s position, and having regard to any practice or procedure in the sport, would have had recourse to throw-in mats or any other safety procedure. Miss Smythe was not asked in evidence in chief whether any such procedure or practice existed She referred to the use of throw-in mats as “training aids”. In cross-examination, after Miss Smythe accepted that she would assume that an athlete who claimed to be an international competitor in trampoline sport could execute a barani, it was suggested to her that it would be insulting and humiliating to suggest to such a person that he put on a harness or make use of matting. She responded to the effect that if she asked such a person to do a barani, and if she perceived they were unfamiliar with it and “thought that … really they needed some type of security, then I would only go – I would just go to the matting and use that as a safety landing.” The answer, based as it is, on a perceived need for “some type of security” and assuming an inability to perform a barani is not of much assistance to the respondent. Like much of the evidence in this area, it went to what an individual coach may or may not do rather than the existence of any practice or norm in the sport. It also failed to address the facts as asserted by the respondent and as found by the trial judge.
Of course, the question of negligence is not to be determined merely by reference to whether the conduct complained of conformed to some professional or sporting practice.[2] In this case though, evidence of a relevant practice in relation to throw-in mats was potentially important, particularly having regard to a lack of evidence as to the risk of injury to experienced athletes performing unfamiliar routines and perceptions of such risks.
[2]Clark v Ryan (1960) 103 CLR 486 per Dixon CJ at 481; Commissioner for Government Transportation v Amacik (1961) 106 CLR 292; Neill v NSW Fresh Food & Ice (1963) 108 CLR 362; Da Costa v Australian Iron & Steel (1978) 20 ALR 257.
There is nothing to show that a reasonable person in Mr Hery’s position should have perceived that in executing the manoeuvre, the respondent would be subjected to any greater risk of injury than that undertaken and accepted by a gymnast executing a routine performance. No witness suggested that Mr Hery ought to have perceived that the consequences of a mis‑timing by the respondent might be more than a fall on the trampoline, resulting, at worst, in a minor sprain or ligament injury.
The evidence does not suggest that experienced gymnasts make use of throw-in mats when varying established routines. I accept that the respondent may have felt considerable reticence about calling for a throw-in mat. But, a reasonable person in Mr Hery’s position may have felt reluctant to suggest to an experienced athlete about to perform a standard routine that a throw-in mat be used.
For the above reasons, I am unable to accept that the respondent established a breach by the appellant of its duty of care. I would allow the appeal with costs.
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