Scaroulis v Victorian YMCA Community Programming Pty Limited
[2024] VCC 406
•9 April 2024 11 April 2024 (revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-00686
| GEORGIA SCAROULIS | Plaintiff |
| v | |
| VICTORIAN YMCA COMMUNITY PROGRAMMING PTY LIMITED (ACN 092 818 445) | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16, 17, 21 and 22 August 2023 | |
DATE OF JUDGMENT: | 9 April 2024 11 April 2024 (revised) | |
CASE MAY BE CITED AS: | Scaroulis v Victorian YMCA Community Programming Pty Limited | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 406 | |
REVISED REASONS FOR JUDGMENT
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Subject:PERSONAL INJURY – NEGLIGENCE – AUSTRALIAN CONSUMER LAW
Catchwords: Occupier’s liability – gym member injured when she fell off a piece of gym equipment – whether equipment faulty – whether supervision of the gym floor would have avoided the fall – reliability – inferential reasoning – counterfactual hypothesis
Legislation Cited: Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“the Australian Consumer Law”), ss2, 3, 23, 54, 55, 60, 61; Wrongs Act 1958 (Vic), ss26, 48, 51, 52, 62, 63; Civil Liability Act 2002 (NSW), s5B(1)(c)
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; Vairy v Wyong Shire Council [2005] HCA 62; Podrebersek v Australian Iron and Steel Pty Ltd
(1985) ALJR 492; Fox v Percy [2003] HCA 22; Bradshaw v McEwans (1951) 217 ALR 1; Hackshaw v Shaw (1984) 155 CLR 614; Venues NSW v Kane [2023] NSWCA 192; East Metropolitan Health Service v Ellis [2020] WASCA 147; Cotton on Group v Golowka [2022] VSCA 279; Munday v St Vincent’s Hospital Pty Ltd [2021] VSCA 170; Roads and Traffic Authority v Royal (2008) 245 ALR 653; Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243Judgment: Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr L Perilli | Arnold Thomas & Becker |
| For the Defendant | Mr M J Hooper | HWL Ebsworth |
HER HONOUR:
Introduction
1In March 2017, the plaintiff, Ms Georgia Scaroulis was 47 years old. She was a very fit woman. Since her twenties Ms Scaroulis had regularly attended gymnasiums for body building and physical training. She was extremely experienced in the use of steppers for exercise and had even done a marathon using such a device.[1] As at March 2017, Ms Scaroulis had been using gym equipment for decades[2].
[1]Transcript (“T”) 20, Line/s (“L”) 29-30
[2]T9, L13-14
2The defendant runs a not for profit gym in regional Victoria.
3On 30 March 2017, while at the defendant’s gym, Ms Scaroulis was injured in a most unfortunate incident. Equipped with a 5-kilogram dumbbell in each hand, she stepped on a Reebok Step (‘the stepper’) and fell. She suffered a comminuted fracture of her nose.[3]
[3]Plaintiff’s Court Book (“PCB”) 48 – Phillip Island Radiology CT Brain, Facial Bones and Whole Spine dated 30 March 2017
4Ms Scaroulis suffered considerable pain and distress in the immediate aftermath of the fall. Thereafter, she has endured a number of facial surgeries to reconstruct her nose and is still awaiting confirmation of the need for a fourth surgery.
5The circumstances of the accident and her post-accident recovery have been traumatic for Ms Scaroulis. That trauma may have affected her recollection of events and her ability to retell them in a reliable and consistent manner.
6There was no dispute that Ms Scaroulis fell and suffered an injury to her nose at the gym while using the stepper.
7The dispute related to whether the stepper was faulty, whether Ms Scaroulis had set it up correctly, and whether she had established the factual cause of her fall.
Ms Scaroulis’ case
8According to Ms Scaroulis, the accident was caused by a stepper which had loose or enlarged holes, collapsing when Ms Scaroulis stepped on it, causing her to fall forward.[4] The pleadings as pursued at trial[5] were set out on four alternative bases:
(a) occupier’s liability, failure to take reasonable care to ensure Ms Scaroulis was not injured by the state of the premises (in the event the Court finds the defendant provided an unsafe or faulty stepper);
(b) in negligence, in failing to ensure that the stepper was safe for her use, failure to maintain, warn, remove, replace, or upgrade a faulty stepper;
(c) in negligence, in failing to induct, train and supervise the gym floor to ensure she did not misuse the stepper (in the event the Court finds she had set it up incorrectly); and
(d) breach of Australian Consumer Law (sections 60 and 61) in the provision of the stepper, which was accompanied by a guarantee that the stepper would be reasonably fit for the purpose for which it was supplied.
[4]Second Further Amended Statement of Claim dated 9 August 2023 at paragraph [6]
[5]Second Further Amended Statement of Claim dated 9 August 2023; Joint Memorandum Regarding Australian Consumer Law dated 23 August 2023 at paragraphs [2]-[4]
9Ms Scaroulis abandoned her claim for economic loss and for injuries other than the injury to the nose and associated consequences.[6]
[6]Second Further Amended Statement of Claim dated 9 August 2023 (particulars of injury); T5
10As the trial developed, Ms Scaroulis refined her allegations to two alternative positions. Her primary position was that she set up the stepper correctly, but it was faulty in that it had loose or enlarged holes. Her secondary position was that if the Court finds she had set up the stepper incorrectly, the defendant failed to provide supervision of the gym floor which would have corrected the set-up.
Defendant’s case
11In its defence,[7] the defendant denied the allegation that the stepper collapsed and denied negligence. It also pleaded contributory negligence in failing to set up the stepper properly, failing to seek assistance and continuing to use the stepper when she knew or ought to have known it was not appropriately set up.[8]
[7]Defence dated 7 May 2021
[8]Defence dated 7 May 2021 at paragraph [16]
12In opening address, the defendant argued that the Court would not be satisfied that there was any defect in the stepper, or if there was a defect that it was what caused Ms Scaroulis to fall.[9]
[9]T275, L18-21
13The defendant posited two alternative possibilities. First, Ms Scaroulis had set the stepper up incorrectly. Second, that Ms Scaroulis tripped or overbalanced.[10]
[10]T276, L16-21
14The defendant also contended that Ms Scaroulis had not satisfied the Court as to:
(a) the allegation that the stepper was faulty being more likely;
(b) the degree of supervision which the defendant ought to have provided while she was engaged in independent exercise at the gym; and
(c) that any supervision would have made a difference.[11]
[11]T277, T283-284
The trial and evidence
15The trial commenced on 15 August 2023 and ran for five sitting days.
16Ms Scaroulis gave evidence and was cross-examined.
17Ms Scaroulis called a number of witnesses:
(a) Mathieu Boisvert (gym member, present in the gym at the time of the fall);
(b) Megan Savona (gym member, who gave evidence of her experience with the steppers); and
(c) Darren Ritchie (plaintiff’s partner, who attended the gym after the fall).
18The stepper involved in the fall was not tendered in evidence. The defendant tendered an example stepper. The parties agreed that it was the same make and model as the one involved in the fall.
19No expert evidence about the stepper was called.
20Ms Scaroulis tendered a redacted report from Mr Rod Diamond,[12] an exercise physiologist, which report focussed on industry practise and recommendations with respect to gyms and their set-up. There was general comment on the impact of wear and tear on steppers and the safety of steppers generally. However, the report was of limited assistance in terms of the safety and probable risk of injury associated with the use or misuse of the stepper.
[12]Exhibit P7 – Expert report of Mr Rod Diamond as redacted by agreement, together with the relevant annexures, tendered on 17 August 2023; also found at PCB 87-99 (as amended) and PCB 100-321
21Mr Diamond was not required for cross-examination.
22The defendant called two witnesses:
(a) Shana Wright; (gym member, present at gym at the time of the fall); and
(b) Lisa McLure (trainer, present at the gym at the time of the fall).
23All witnesses gave their evidence about events in the gym by reference to an agreed diagram.[13] Each witness marked a copy of the diagram with their respective representations of the location of events or people in the gym.
[13] Exhibit P1 – Agreed plan of gym layout, tendered on 17 August 2023
24Ms Scaroulis was the only witness who gave direct evidence about how and why the fall occurred. Ms Scaroulis’ reliability and credibility therefore took on greater than usual significance.
25No photographs of the gym were tendered. There was no evidence about the size of the gym, its capacity or the number of machines. There was evidence that steps classes with approximately 15 participants were held on Thursdays and that steppers were used by each participant. No evidence was led about the period of time the stepper or ones like it had been in use at the gym.
26Contemporaneous notes were tendered, these included two incident reports completed by Ms McLure,[14] business records of Ambulance Victoria[15] and various progress notes made by doctors Ms Scaroulis had consulted for her injury.
[14][15]Exhibit D2 – Ambulance Victoria record dated 30 March 2017, tendered on 16 August 2023 by the defendant without objection
The YMCA Phillip Island Leisure Centre (“the Gym”)
27A diagram of the gym was tendered in evidence.[16]
[16]Exhibit P1
28Ms Scaroulis marked the diagram to indicate two areas. The first where she had first set up the stepper (P1x) and the second where the incident happened (P2x) as shown below.
29At the time of the incident, there was a curtain partly drawn along the wall running alongside the reception desk. A smear of blood was seen by some witnesses on that wall near to where Ms Scaroulis fell.
Reebok Step (“The Stepper”)30A Reebok Step is a hardened plastic platform in the shape of a step. The parties agreed the measurements as being, the top of the platform 89.5 centimetres in length by 38.5 centimetres in width. The length from the outside edge of each foot was 102 centimetres.
31The base of the platform had three adjustable levels designed to create an increase in the height of the stepper by placing the feet at different positions on the sides of the base of the platform as shown below.
32
The stepper has two removable feet designed to be fitted to the base of the platform using a peg-in-hole locking mechanism with two pegs on the top of each of the feet as shown below.
33Level 1 was 15 centimetres. The middle height at level 2 was 20 centimetres, and the maximum height at level 3 was 25 centimetres.[17]
[17]All measurements were made by the parties and provided to the Court jointly (T492-494)
34During exercise, the user steps on and off the stepper. Varying levels of intensity can be achieved depending on the speed at which the user steps on and off and depending also on the height selected. The user can also elect to hold or carry weights in their hands to increase the intensity of the exercise.
Issues in dispute
35The issues in dispute identified by the parties were as follows:
(a) whether the defendant provided a faulty stepper, namely a platform with loose holes which contributed to its instability and to the incident and was thereby negligent or in breach of its obligations under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“the Australian Consumer Law”) (“the ACL”);
(b) if the stepper had loose holes, whether that was a cause of Ms Scaroulis’ fall and consequent nasal fracture;
(c) whether Ms Scaroulis had set up the stepper incorrectly, that is with the feet pointing out rather than pointing in under the platform;
(d) whether the defendant owed a duty to provide supervision of Ms Scaroulis’ use of equipment in the gym and, if so, whether such supervision would have enabled detection and correction[18] of the incorrect positioning prior to the incident; and
(e) if the defendant had an obligation to provide supervision, was a breach of that obligation a cause of the incident.
[18]T472, L11-17
36If there was negligence, the plaintiff conceded contributory negligence,[19] namely that once Ms Scaroulis noticed a fault with the device, she ought not have continued with its use.
[19]T478, L5-8
37Counsel for the defendant submitted that Ms Scaroulis was wholly responsible for the incident and her contribution was 100 per cent. Senior counsel for Ms Scaroulis submitted that the primary cause of the accident was the provision of a faulty stepper and therefore any contributory negligence ought to be 20 to 25 per cent.[20]
[20]T478, L5-14
Summary of findings
38Ms Scaroulis set up the stepper incorrectly, with the feet pointing out but with the pegs clicked into the holes.
39Ms Scaroulis has not made out to the requisite standard that any supervision would have prevented the fall for two reasons. First, because there was insufficient evidence linking the incorrect set-up to the fall. Second, because the location Ms Scaroulis deliberately chose for her exercise, behind a curtain for privacy, meant that others in the gym could not see her.
40Ms Scaroulis has not satisfied her onus to establish the scope of any duty on the defendant to provide supervision of her use of the stepper.
41Ms Scaroulis has failed to satisfy her onus to establish how and why she fell. She has also failed to establish that a cause of her fall was attributable to a faulty or defective stepper.
42Ms Scaroulis has not satisfied her onus to establish that it is more probable than not that she fell because of any defect in the step or the way she had set it up, as distinct from some other cause, such as tripping or over balancing.
43I dismiss Ms Scaroulis’ claim but have made some contingent findings as to contributory negligence and damages.
Factual background
44Ms Scaroulis is now 54 years old. She is a beautician and lives with her long-term partner on Phillip Island.
45Since the age of 16, Ms Scaroulis has regularly frequented gyms for the purpose of maintaining her physical fitness.
46In her early twenties, Ms Scaroulis participated in body building competitions and photographs of her taken at one such competition in Townsville were tendered in evidence.[21]
[21]T19-20
47Since the 1990s, Ms Scaroulis has used devices like the stepper as part of her fitness regimen.[22]
[22]T20, L6-31
48In 2012, Ms Scaroulis joined a “24/7” gym at San Remo, where she regularly used steppers. She was a member for about two or three years[23] but stopped going to that gym because she found the equipment to be old.[24]
[23] T21
[24]T23, L3-5
The gym membership
49On 22 February 2017 (approximately two years since last holding a gym membership), Ms Scaroulis entered into a “Membership/Enrolment Agreement” with the defendant to use its gym for a period of 12 months.[25]
[25]Exhibit D14 – Membership/enrolment agreement between the plaintiff and Bass Coast Aquatic & Leisure Centre – Phillip Island Leisure Centre, dated 22 February 2017 and accompanying terms and conditions initialled by the plaintiff, tendered on 21 August 2023
50Her first month would be free and then she would pay $35 monthly.[26] This entitled Ms Scaroulis to use the facilities of the gym for independent exercise.
[26]T353, L6
51The manager of the gym, Jenny Broomhall, was a client of Ms Scaroulis’ beauty business.
52The defendant did not provide Ms Scaroulis with any instruction on how to use the gym facilities.[27]
[27]T24, L7-8
53Ms Scaroulis attended the gym five times prior to the incident but had not used a “stepper” during those visits.[28]
[28] T24
The incident
54On 30 March 2017, in the late afternoon, Ms Scaroulis attended the gym.
55Following a brief warm up, Ms Scaroulis retrieved a platform and feet and began to assemble the stepper towards the middle of the Aerobic Area of the Gym[29] which she labelled P1 on the diagram of the gym.
[29] Exhibit P3 – Diagram of Gym marked up by Ms Scaroulis, tendered on 15 August 2023
56Ms Scaroulis told the Court she knew how to set up the stepper and did not need an induction, training, demonstration, or instruction in its use.[30]
[30]T29, L13-18; T66, L6-12; T67, L2; T68, L10-14
57Ms Scaroulis then moved the assembled device to the area she labelled P2, being the area where the incident occurred (nearer the wall which runs alongside the reception desk).[31]
[31]Exhibit P3
58Ms Scaroulis described setting up the stepper in the two locations as follows:
“I – when I first set it up, um, and I stood up on the step, it slipped straightaway. It actually fell apart, and then I set it up again and it fell apart again. And then I turned to the actual platform, at the top – the platform - around to have a look at the holes, and the holes had been over, over-used. And in hindsight, I thought I can still set this up, so I continued to set it up and I secured it, and then felt confident with the step, 'cause I stepped up and stepped down, stepped up and stepped down and it was fine.”[32]
[32]T30
59
Ms Scaroulis was then asked what she did once she moved the step.
Ms Scaroulis said:
“I stepped up and, on the step, just to confirm that it was fine, and stepped down and it was fine. Not a problem. And that's when I went to go and grab my weights. So, five-kilogram weights. And then as soon as I stepped up on the step the first time, it lifted me – I can't remember how, but it lifted, and I fell to the floor. It was very, very, very quick.”[33]
[33] T31
60Ms Scaroulis said she yelled out and landed face down on the floor.
“It was very, very loud and from that moment, I couldn’t see who came because I was face planted, so I was right on, my face was on the ground….”[34]
[34]T34, L13-20
61Ms Scaroulis said her nose fractured on the ground and not on the wall.[35]
[35]T72 L19
Reliability of Ms Scaroulis
62Ms Scaroulis was the only witness to give direct evidence about how and why she fell. The reliability of her evidence was therefore particularly significant.
63In assessing reliability, I have taken into account what the High Court has said about the need to limit reliance on appearance or manner of giving evidence. The Court’s conclusions ought, as far as possible, be reasoned from contemporary materials, objectively established facts, and the apparent logic of events.[36]
[36]Fox v Percy [2003] HCA 22 at paragraph [31]
64The defendant submitted that:
(a) Ms Scaroulis was not a reliable witness; she gave exaggerated and inconsistent evidence and was keenly aware of her own interest in the case;
(b) Ms Scaroulis gave answers aimed at avoiding the possibility of being blamed or held responsible for the accident. In particular, counsel for the defendant submitted that Ms Scaroulis did not answer questions directly, argued back and was careless as to whether she was telling the truth;[37] and
(c) Ms Scaroulis only made admissions when confronted with the evidence.
[37]T368-373
65The defendant did not submit that Ms Scaroulis was deliberately lying, but rather that, having an emotional investment in her case, she was careless as to whether the answers she gave were truthful.
66Senior counsel for Ms Scaroulis submitted that Ms Scaroulis was a truthful and reliable witness, even if she had sworn Answers to Interrogatories which were inconsistent with her evidence in Court.
67My impression was that Ms Scaroulis did not have a reliable memory of how the incident happened and was, at times, reconstructing events in the witness box. On occasion, her evidence was evasive. At other times, it was careless. I find her to be unreliable as to the circumstances of the fall and how she set up the stepper. I provide my reasons below.
Exaggerated and inconsistent evidence
68Ms Scaroulis said that when she initially set up the stepper, she set it up at Level 3 exactly like depicted in the Manual.[38]
[38]T29, L1-19; PCB 134-135; Exhibit D7 – Step Reebok Manufacturer’s Manual, tendered on 16 August 2023
69In the Manual, Level 3 is the highest level and shows the feet of the step pointing inwards under the step. The parties agreed that Level 3 is depicted in each of the two photographs which follow, only one of which accords with the Manual (photograph 1).
Photograph 1 Photograph 2
70In cross-examination, Ms Scaroulis was taken to the defendant’s interrogatory 10, in which she was asked to select which of the above two photographs represented how she set up the step.
71To be consistent with her oral evidence, Ms Scaroulis’ answer ought to have been photograph 1 (level 3 elevation, feet pointing in).
72Contrary to her oral evidence, on 14 January 2022, in her Answers to Interrogatories, Ms Scaroulis deposed that it was neither of these and “see attached for how it was set up”.[39] The attachment had been omitted from the plaintiff’s answers.
[39]Exhibit D1, tendered on 16 August 2023; T83-84
73On 21 March 2022, following a request for the attachment,[40] the following photograph was provided by Ms Scaroulis ’s solicitors. It shows level 1 elevation.
Photograph 3[40]Exhibit D1; PCB 115
74Ms Scaroulis’ oral evidence (set up at level 3) was inconsistent with her sworn Answer to Interrogatory 10 (set up at level 1).
75For a number of reasons, I found the evidence attempting to explain the inconsistency to be confusing, convoluted, and evasive:
(a) initially, Ms Scaroulis said that photograph 3 showed the feet pointing in and that was what she wanted to show.[41] It transpired that photograph 1 showed the feet pointing in and was the correct representation of Ms Scaroulis’ oral evidence about the set up of the stepper;
(b) when the inconsistency was put to her, Ms Scaroulis claimed she had misunderstood the question and she was stating that the feet were pointing inwards and that is how she had set up the stepper;[42]
(c) if Ms Scaroulis had a reliable memory of the way she had set up the stepper, there would be no reason for her to select a third option which, according to her, did not in fact represent the set-up at the time of the incident at all; and
(d) Ms Scaroulis also said that the events were seven years ago, her memory was not so good now and it might have been level 2 or 3:
“....regardless if it is level 2 or level 3, it’s the same thing it’s just that it was slipping and that’s not something that is my fault.”[43]
[41]T85, L7-10
[42]T87, L1-4
[43]T87, L13-22
76That explanation was inconsistent with the photograph Ms Scaroulis had selected in her answers as allegedly representing the set-up at the time of her fall, with a set up at level 1.
77If Ms Scaroulis had assembled the stepper at level 1, as sworn to in her answers,[44] then it is difficult to see how the platform could have “lifted her off” or “slipped” when she stepped on it. There would have been insufficient space between the floor and the platform, and her weight would have been pressing down on it.
[44]PCB 115
78Ms Scaroulis then specifically disavowed her evidence on oath in the answers to interrogatories:
“it was definitely not on level 1”.[45]
[45]T90, L1-2
79Having seen the photograph at level 3 in the interrogatories, Ms Scaroulis determined that this was not in fact how she had set it up.
80If I accept her explanation that at the time she swore her answers, Ms Scaroulis had forgotten how she had the set-up stepper, I can have no confidence that her oral evidence about the set-up is reliable. It may be that both are affected by poor memory.
81The two versions of events are incompatible with one another. They are also incompatible with the evidence of Ms Wright and Ms McLure, both of whom observed that the feet of the stepper were pointing out. Their evidence is discussed later in this Judgment.
82I do not accept the explanations given by Ms Scaroulis. They were confusing and contradictory. When confronted with the contradiction, Ms Scaroulis did not agree there was a contradiction[46] and said:
“… my memory of setting it up was level - either level 2 or level 3. I know I had it on a high level”.[47]
[46]T89, L10-14
[47]T88, L17-19
83I accept the defendant’s submission that Ms Scaroulis’ answer to interrogatory 10 and her oral evidence contradict one another and that this poses a significant question as to her reliability as a witness.
84The contradiction makes it difficult to rely on Ms Scaroulis’ sworn evidence about how the stepper was set up. Her assurances that she had set up the stepper in accordance with the Manual[48] are therefore also unreliable.
[48]T388-389
85
This contradiction alone would have posed a significant enough hurdle for
Ms Scaroulis’ evidence. However, there were other issues which affect the Court’s assessment of her reliability.
Answers aimed at avoiding responsibility for the incident
86In cross-examination, Ms Scaroulis agreed that just before the fall, she was facing the wall.[49] However, she maintained that her nose did not hit the wall and that it fractured or shattered on the ground.[50]
[49]T63, L26-30
[50]T72, L15-26
87The evidence which then followed was confusing and contained a number of contradictions:
“In all honesty I can’t remember exactly what happened, because it was so fast, but I know I hit the wall and then I went down straight to the floor”.[51]
…
“I could have hit the wall and then planted on the floor”.[52]
…
“I definitely know that I went straight down on the floor. And my face basically hit the floor and I heard this massive shatter on the floor. That, that will never go away from my memory.”[53]
[51]T71, L23-29
[52]T72, L27-30
[53]T74, L1-6
88In response to a question from the Bench about how far from the wall Ms Scaroulis had set up the stepper, she said she could not recall.
89Counsel for the defendant then asked Ms Scaroulis whether she could say with certainty if she hit the wall or not. She responded:
“I could have hit the wall, but my nose did not hit the wall, my nose hit the floor, so whether there was blood splatter on the wall…. I can’t remember.”[54]
(emphasis added)
[54]T74, L5-11
90
Counsel for the defendant asked Ms Scaroulis whether her answers were directed to creating an impression that she had not set up the stepper too close to the wall and therefore was not partly to blame for what happened.
Ms Scaroulis disagreed with that proposition:
“I can assure you now that I did not hit the floor, did not hit the wall with my nose. I can assure you that now. I hit the floor with my nose.”[55]
[55]T75-76
91Counsel for the defendant asked Ms Scaroulis whether immediately after the fall, she had “consistently” said that she hit her nose on the brick wall. Ms Scaroulis denied having said that.[56]
[56]T71, L15-21
92The Ambulance Victoria record[57] contained the following history:
patient was at the gym tonight working out. Patient stepped up onto a step with weights in her hands. The step moved out from under her and she fell forward face first into the wall her face and nose broke her fall. Patient denies LOC
[57]Exhibit D2
93Ms Scaroulis denied having given that information to the paramedics.[58]
[58]T75
94The Wonthaggi Hospital Emergency Department Triage record dated 30 March 2017,[59] contained the following history:
at gym doing step ups with weights, step slipped out, she face planted into concrete wall, nil LOC….
[59]Exhibit D3 - Emergency Department Triage record dated 30 March 2017, tendered by the defendant on 16 August 2023 without objection
95Ms Scaroulis denied having told the triage team that she “face planted” into a concrete wall.[60]
[60]T75
96On 10 April 2017, Dr Howard McCormick recorded a history that Ms Scaroulis:
when (sic) to grab weights and step gave way and hit face into the wall and onto the floor with full force of her body onto her face… she had like a whiplash when hit the wall and then fell onto the floor hyperextension[61]
[61]Exhibit D4 - Surgery consultation record of Dr Howard McCormick relating to a visit on 10 April 2017 by the plaintiff, tendered by the defendant on 16 August 2023 without objection
97Ms Scaroulis initially did not agree she had provided that history to Dr McCormick, later she said she could not remember that:
“….all I remember is that I face planted on the actual ground.”[62]
[62]T76, L13-22
98Ms Wright and Ms McLure both observed blood on the wall. Ms Wright described it as being at her waist height (approximately 1 metre above the ground).[63] Ms McLure described it as a “stripe of blood” or a “smear of blood”[64] about half a metre down the white wall.[65]
[63]T299, L14-28
[64]T322, L9
[65]T321, L11-16
99The contemporaneous documents refer to Ms Scaroulis’ face hitting the wall. The triage note records the term “face planted”. This idiosyncratic expression was also adopted by Ms Scaroulis in her oral evidence.
100Counsel for the defendant asked Ms Scaroulis whether she agreed that the three contemporaneous records (referring to her face hitting the wall) were more likely to be correct, and it was improbable they would all note an incorrect history. Ms Scaroulis said:
“I just know I didn’t hit the wall, so I just can’t recall, I just can’t recall that. So why would I say something that I don’t agree with right now. I just don’t know that…. all I know is I hit the floor and my nose shattered on the floor and it didn’t shatter anywhere else.”[66]
[66]T77, L22-27; T79, L8-9
101Considering the contemporaneous evidence, together with the evidence of Ms McLure and Ms Wright, it is probable that Ms Scaroulis did hit the wall with her nose before hitting the floor.
102Ms Scaroulis’ answers to questions regarding this issue were evasive. Her evidence that she had broken her nose on the ground created an impression that the stepper had not been too close to the wall prior to her fall.
Careless answers
103In cross-examination, Ms Scaroulis was asked whether, in April 2022, she had contacted a Ms Cleland about helping her with evidence for the case and whether she had provided a statutory declaration to Ms Cleland for that purpose.
104Ms Scaroulis was asked:
“You say do you, that you never gave her a statutory declaration of any kind.”
105Ms Scaroulis answered:
“I never gave her a piece of paper and said ‘fill this out’.”[67]
[67]T103-104
106The following day, counsel for the defendant referred to that portion of the transcript. Before any question was asked, Ms Scaroulis offered an explanation for her oral evidence:
“I have extreme tinnitus in my ear and some of the actual questions and answers were mixed up … and sometimes it takes over how I communicate so I can’t recollect that … I can hear the question, it's actually understanding the question and the comprehension, and there are times where I actually cannot comprehend very well. So therefore that's because of tinnitus that is quite severe, and I have issues with that sometimes.”[68]
[68]T135, L14-26
107Counsel for the defendant then produced an email from Ms Scaroulis to Ms Cleland dated 7 April 2022.[69] The email attached two statutory declarations, one blank, the other unsigned but containing content.
[69]Exhibit D5 (tendered without objection)
108Confronted with the evidence, Ms Scaroulis conceded she had sent the email but initially denied drafting the content.[70] When the content was put to her a second time, Ms Scaroulis conceded she had in fact drafted it.[71]
[70]T138, L6-7
[71]T139, L14-22
109Ms Scaroulis said she had forgotten sending the email. Counsel for the defendant then put to her that she had been careless about whether she was giving true answers. Ms Scaroulis said:
“No, I’m not careless, I just know exactly what happened, I’m not careless at all.”[72]
[72]T142, L14-24
110Ms Scaroulis gave direct and responsive answers to questions asked of her about the statutory declaration. If Ms Scaroulis was affected by tinnitus, this was not apparent from her oral evidence.
111I accept the defendant’s submission that Ms Scaroulis was at times careless with her answers.
Conclusion on the reliability issue
112I find Ms Scaroulis’ evidence about the set-up of the stepper and the circumstances of the fall to be unreliable.
113It may be that her evidence was affected by the passage of time or the shock from the incident or the subsequent traumatic surgeries or a combination of these. There may also be other explanations. The availability of explanations, however, does not elevate the evidence from unreliable to reliable.
114It follows that there is no reliable first-hand account of how or why the incident occurred and it is necessary to consider the remainder of the evidence.
The incident – evidence of other witnesses
Mr Boisvert
115Mr Boisvert was a member of the gym.
116Mr Boisvert was doing “pull-ups” close to the area of the gym separated by the curtain[73] where Ms Scaroulis was doing her exercise.
[73]T184, L21-26
117Mr Boisvert said he did not see the actual fall, but he saw what Ms Scaroulis was doing prior to the fall.
“I noticed that she was setting up the step thing. A couple of times I had noticed that she stood on it, I didn't really know what she was doing. I did notice that she stepped on it a couple of times and then went to get the weights to do her exercises on it.
… I saw her put it together, you know, I saw the base, like, step on it but no, not - I don't know if she moved it forward or back.”[74]
[74]T184-185
118Mr Boisvert was unable to comment on the set-up of the stepper and whether it was done correctly.[75] He did not observe Ms Scaroulis assembling it in the middle of the aerobic area or moving it fully assembled to the area where the incident occurred.
[75]T185, L31; T186, L1
119The significance of Mr Boisvert’s evidence is that he had observed a portion of the set-up but was unable support Ms Scaroulis’ evidence of the falling apart or collapse of the stepper.
120Mr Boisvert’s evidence supports Ms Scaroulis’ account of having stepped up and down on the step before going to get the weights.
121No submissions were made that Mr Boisvert’s evidence should not be accepted. I accept his evidence.
Ms Savona
122Ms Savona had been a member of the gym for 11 years.[76] She was also a client of Ms Scaroulis’ beauty therapy business. Ms Savona was not present at the gym at the time of the incident.
[76] T261
123Ms Savona said that upon hearing about the fall, she told Ms Scaroulis she could relate because she had also had issues with the steppers.
“I can relate because there has been times when I used to attend pump classes where it would happen, it would often not be stable at the start and when I thought it was clicked in, and sometimes I would have to flip the stepper over to see if it was clicked in properly. But I wasn’t sure what the cause of that was. I thought maybe it was my wrongdoing or it was wear and tear. But yeah, that’s why I’m here today because I told her that I had had complications with the steps.”[77]
(emphasis added)
[77] T263, L26 to T264, L6; T266, L1-8
124Ms Savona described the steppers as “looking old” because they had cobwebs on them and, at least once, she had occasion to put a stepper back and use a different one:
“….because it wouldn’t click in properly it was unstable, and I didn’t want to stand on it and injure myself.”[78]
[78] T26, L1-9
125There was no evidence led about when, in the 11-year period she had been attending at the gym that Ms Savona experienced these issues. It was not clear whether Ms Savona’s evidence related to steppers of a kind involved in the fall, or whether it related to some other similar device.
126In cross-examination, Ms Savona was asked whether she had ever seen all the steppers removed and replaced with new ones.[79] Ms Savona indicated she had not. Aside from this, no other questions were asked in cross-examination.
[79]T265-266
127No submissions were made that Ms Savona’s evidence should not be accepted. I accept her evidence.
Ms Wright
128Ms Wright had been a member of the gym from approximately 2015. She was present at the gym at the time of the incident.
129Ms Wright said she had used the same brand of stepper at the gym. She had never encountered difficulty with or observed a defect with them.[80]
[80]T292
130Ms Wright said that in the five years that she was attending the gym, she had never observed the holes in the bottom of the platform to be worn out, or to have become enlarged in some way.[81] She had attended “countless” steps classes.[82]
[81] Ibid
[82] T303, L18-19
131Ms Wright did not see Ms Scaroulis setting up the stepper. She saw the stepper near the wall with the feet pointing outwards and saw Ms Scaroulis:
“….step up onto the step a couple of times and back down and she was holding the dumbbells, one in each hand.”[83]
[83] T298
132Ms Wright said that after the incident, she had informed Ms McLure about her observations including:
“….that the feet were pointing outwards, and she was stepping up with two dumbbells in her hand and the box must have slipped out and she’s gone forward and hit her face on the wall.”[84]
[84] T300, L16-22
133Senior counsel for Ms Scaroulis asked Ms Wright why she had not told Ms Scaroulis that the stepper had been incorrectly set up. Ms Wright said that she was not qualified and did not feel comfortable doing that in a gym.[85]
[85]T303
134Senior counsel later urged on the Court a finding that this “tarnished” the evidence of Ms Wright. The basis of the submission was that this evidence was inconsistent with the evidence of Ms McLure that Ms Wright had said that before the fall, she was going to tell Ms Scaroulis to put the feet the other way, but she did not get the opportunity to do that before the incident.[86]
[86]T327, L1-4
135I do not accept this submission. The inconsistency was never put to Ms Wright in cross-examination. The two pieces of evidence are not on the face of it inconsistent nor mutually exclusive. It may be that both propositions are correct. That is Ms Wright was going to tell Ms Scaroulis but was not comfortable about it and did not get enough time.
136In circumstances where the alleged inconsistency was never put to the witness, I am unable to accept the submission made by Senior Counsel.
137Overall, I found Ms Wright to be an impressive witness. She made appropriate concessions and gave her evidence in a measured and considered way.
138When asked about the circumstances of the fall, Ms Wright was careful to tell the Court that she was now unable to say whether she had any memory of the fall itself and could only tell the Court what she remembered, namely seeing the stepper before the fall. Even when asked about the curtain, she was prepared to accept that others could have viewed it as partially closed, even though her memory of it was that it was open.
139I accept Ms Wright’s evidence.
Ms McLure
140Ms McLure was present at the gym on the day of the incident.
141Ms McLure said she had been employed as a personal trainer at the gym between 2015 and 2019. Her duties included running various group fitness classes.
142Ms McLure said that between 2015 and 2017 “pump classes” were held four to five times a week. The pump classes involved each of the participants using a stepper like the one involved in the fall. On Thursdays, 10-15 members attend the class.
143At the time of the incident, Ms McLure was working with a member establishing a fitness program and did not see Ms Scaroulis setting up the stepper.
144Ms McLure heard a “big bang” and went over to the area. Ms Scaroulis was laying over the step “with the step underneath her, sort of under her middle section”.
145Ms McLure saw the platform had been dislodged from its feet which were pointing outwards. It appeared to her that Ms Scaroulis had fallen forward.[87]
[87] T334, L5-15
146Ms McLure, together with others, gently lifted Ms Scaroulis, removed the step, then covered her with a blanket and checked her face.[88]
[88] T321
147While waiting for the ambulance, Ms McLure completed a “YMCA Major First Aid Report Form.[89] The report provided a description of the injury as follows:
Fell FWD off a step platform face first into a brick wall[90]
[89] T324-325; Exhibit D10 – YMCA Major First Aid Report Form signed by Lisa McLure dated 30 March 2017, tendered on 21 August 2023; PCB 327-330
[90] PCB 328
148Ms McLure said she asked Ms Scaroulis questions to assist her to complete the report.[91]
[91]T326
149In the section of the report headed “detailed description of injury”, Ms McLure wrote:
Fell FWD off a step whilst doing a workout face first into a brick wall bled profusely from her nose sore neck, getting sorer[92]
[92] PCB 329
150Ms McLure said she asked Ms Scaroulis how she had ended up “here”. Ms Scaroulis told her she had set up the step “wrong”.[93]
[93] T326, L18-22
151In cross-examination, Ms McLure said that at the time of the incident, Ms Scaroulis told her “I think I have set it up wrong, I’m sure I’ve set the step up wrong”.[94] Ms McLure said that when she wrote “it hadn’t been clipped in properly” that was her understanding of Ms Scaroulis’ explanation that she had set it up wrong.[95]
[94]T358, L15-31
[95]T359-60
152When asked about it, Ms Scaroulis denied having said that to Ms McLure:[96]
”Lisa did not talk about how the accident happened. She did not talk to me about the step…. I definitely did not say to Lisa anything regarding the step, because I was not in that place and Lisa did not ask that question. And I do not recall that.”[97]
[96]T179, L12-17
[97]T96
153About one week after the accident, Ms McLure typed a second incident report which provided more detail than the first.[98] It included the following:
[While administering first aid, I asked what happened] Gia said:
the step hadn’t been clipped in properly and she had slipped and fallen. She had also been holding on to dumbbells both of which were in front of her on the floor…. A member mentioned that just prior to the accident she had noticed…. The step set up incorrectly… after Gia left in the ambulance, the member showed me how Gia had set the step up.
[98] T336; Exhibit D9 – Incident report of Lisa McLure relating to the incident on 30 March 2017 at 5:45pm, tendered on 21 August 2023, PCB 326
154Ms McLure identified the member as Ms Wright.[99]
[99] T326, L29-31
155Ms McLure said that Ms Wright had shown her that the step had been set up “with the top sitting on, and the feet facing outwards and everything sort of lined up”.[100]
[100]T338, L15-17
156Ms Scaroulis could not recall having said anything to Ms McLure about the accident, however I accept that she did so. It is logical that an incident report would be completed because Ms Scaroulis was bleeding from her face and an ambulance had been called. It is also logical that when the report was being completed, the writer would ask “what happened” and that Ms Scaroulis would provide an account of what had occurred.
157Ms McLure’s credibility was not challenged in cross examination. No submission was made that her evidence should not be accepted. I accept her evidence.
Rod Diamond – exercise physiologist
158Ms Scaroulis tendered Mr Diamond’s redacted report.
159Mr Diamond holds a Bachelor’s Degree in Exercise and Sports Science from the University of Sydney in 2006, and qualifications in Level 2 Strength and Conditioning, Weightlifting, Track and Field (Sprint Training), Rugby Australia Smart Rugby Accreditation, and a Diploma in Sports Massage Therapy.
160Under the heading “Background and Assumptions”, Mr Diamond included the following:
The Plaintiff set up the step Reebok platform connecting the base to the platform (an image of a step exercise platform is annexed to this report at Appendix 4)[101]
Appendix 4 of Mr Diamond’s report[102][101]PCB 91
[102]PCB 115
161Mr Diamond noted a history that Ms Scaroulis
noticed the platform separated from the base ... then put the base and platform together then noticed the platform separated from the base a second time ... then picked up the platform, turned it over and realised the holes were enlarged, overused and abnormal and the base wasn’t clipping in properly to the platform.
162Mr Diamond provided an opinion that wear and tear of “the subject stepper” can render them unsafe and/or cause issues with the gripping surface. In particular, Mr Diamond said:
steppers are designed to have a platform and base attached to each other. With wear and tear, the gripping surface of the plastic mechanism connecting the platform to the base could loosen and render the subject stepper unsafe.[103]
[103]Exhibit P7 – Paragraphs 7.25 and 7.26 of Mr Diamond’s redacted report dated 12 August 2022, tendered on 17 August 2023; PCB 97
163Mr Diamond concluded that the stepper ought not have been available for use and ought to have been removed from the gym floor.[104]
[104]Exhibit P7 – Paragraph 1.3 of Mr Diamond’s redacted report dated 12 August 2022; PCB 90
164Mr Diamond‘s report did not describe or particularise what is meant by “the subject stepper”. It did not include a description or a photograph of the base of the platform of the stepper featured in Appendix 4.
165The Appendix 4 example stepper is similar to the exhibit stepper. However, it does not look exactly like it. There is no evidence that the peg-in-hole mechanism on that stepper is like the mechanism on the stepper which is the subject of this proceeding.
166The Appendix 4 example stepper in Mr Diamond’s report looks exactly like the photographed stepper Ms Scaroulis provided in her answer to interrogatory 10.[105] She was not asked, however, whether she had ever used a stepper of that kind and gave no evidence about the way in which the feet of that photographed stepper might have been attached to its platform. Ms Scaroulis’ purpose in providing the photograph was said to be to demonstrate the orientation of the feet of the stepper involved in the incident.
[105]See pages 13-14 of this Judgment
167The report made no reference to holes or to a clicking mechanism associated with his Appendix 4 example stepper. There was also no such reference associated with Mr Diamond’s opinion that the stepper ought to have been removed from the gym floor.
168It is unclear what Mr Diamond meant by “gripping surface of the plastic mechanism” and how that might relate to the issue whether the holes of the stepper were enlarged or overused.
169Mr Diamond was not called to give evidence. His opinion as to “wear and tear of the gripping surface” was not explained in a way which would enable anything more than a very general application to the evidence in this case.
170In the absence of evidence, it would be speculative to conclude that the attachment mechanism in the Appendix 4 stepper was the same as the attachment mechanism in the stepper which is the subject of these proceedings.
171A further complication of Mr Diamond’s report is the inclusion of a “demonstration stepper” with accompanying photographs. That demonstration stepper was completely different to the stepper before the Court. It had two components – a platform and base, being two square pieces of hardened plastic which connect to the platform via a channel mould in its base.
172The demonstration stepper is nothing like the stepper in question in this proceeding and the mechanism for attaching the platform to the base is completely different. It is not relevant and does not assist in resolution of the issues raised.
173Mr Diamond’s inclusion of the demonstration stepper in his report calls into question the applicability of his opinion on wear and tear to the facts in this case. This is because there is no depiction of the subject stepper in his report. There is only the “demonstration stepper” and the stepper in Appendix 3. The report does not provide that either of these had a peg-in-hole locking mechanism, like the stepper in this proceeding.
What was the position of the stepper immediately prior to the fall and was it faulty?
174The incident report completed immediately after the fall provided no reference to a faulty step (loose holes). Neither did the second report completed a week later.[106]
[106]PCB 326-328
175At the time of the incident, Ms Scaroulis told Ms McLure she had “set it up wrong”.[107]
[107]T326
176A WorkSafe Notification report completed by Rebecca Wilson, Area Manager of the defendant dated 31 March 2017[108] was tendered. The report provided that Ms Scaroulis:
lost her footing and fell forward impacting the wall face first.
[108]Exhibit P12 – Incident Notification Form to Worksafe completed by Rebecca Wilson on 31 March 2017, tendered on 21 August 2023; PCB 331
177Ms Wilson did not give evidence. There was no evidence that Ms Wilson was present at the time of the incident. The source of the information in the report is not nominated. I place no weight on the history contained in the report.
178Ms Wright and Ms McLure observed the stepper immediately before and after the fall and the feet were pointing outwards. This was contrary to Ms Scaroulis’ evidence that she had set up the stepper with the feet pointing inwards.
Two ways of setting up the stepper with the feet pointing outwards
179There was evidence by way of demonstration, that the stepper with the feet pointing outwards could be assembled in two ways.
180First, the platform is placed unsecured over the feet pointing outwards, enabling it to become dislodged with the slightest of pressure on the long edge of its platform. A photograph of the platform in this position was tendered in evidence and is Exhibit P9.[109] In this configuration, the sides of the feet and the sides of the platform form a clean line.
[109]See paragraph 68 of this Judgment
181Second, the platform is secured to the feet by “clicking” into the holes. A photograph of the platform in this position was tendered in evidence and is Exhibit P11. In this configuration, there is no clean edge, rather there is a slight overhang between the platform and the feet.
182Ms Wright was asked whether she could say which of the two options she observed prior to the incident. Ms Wright was only able to say the feet were facing out.[110]
[110]T309, L24-31
183Ms McLure said that when Ms Wright showed her how the step was assembled, “everything lined up” meant the platform was loose on the feet.[111]
[111]T338-339
184I prefer Ms Wright’s evidence that she could not now say whether the platform was in one position or the other, only that the feet were pointing outwards, because it makes the most sense.
185The difference between the two methods appears to me to be quite subtle. It is unlikely Ms Wright and Ms McLure would have paid too much attention to any overhang at the time, given Ms Scaroulis’ fall and injuries.
Findings in relation to the set-up of the stepper immediately prior to the fall
186Senior counsel for Ms Scaroulis submitted that Ms Scaroulis was an experienced gym goer, and she would be unlikely to have set up the device incorrectly. Senior counsel relied on the evidence of Ms Wright and Ms McLure, both of whom said that they knew how to set up the step, and once they knew how to set it up, they would never set it up wrongly.[112]
[112]T423, L27-31
187Senior counsel likened the position to sitting in a chair. Everyone knows how to sit in a chair, and they would not sit in it incorrectly.
188There are three flaws with this argument:
(a) first, it may be correct to say an experienced person is unlikely to set up the stepper wrongly, but this is not absolute. It does not exclude the possibility that Ms Scaroulis had made a mistake or had been distracted on this occasion;
(b) second, on the evidence, there appear to have been different versions of the stepper over time. For instance the “demonstration stepper” in Mr Diamond’s report did not have a peg-in-hole locking mechanism, it had square plastic feet which fit into a channel mould on the base of the platform. Ms Scaroulis said that “back in the day” the Reebok Step was a platform which would be built up and then placed on top.[113] Ms Scaroulis said that over the years she had set up “hundreds of steppers” and “plenty” like the stepper in the incident. I understood this to be a reference to her experience with several types of steppers which might be built up and assembled differently; and
(c) third, Ms Scaroulis provided two different versions of how she had set the stepper up, one in her answer interrogatory 10 and the other in her evidence-in-chief. Senior counsel for Ms Scaroulis conceded that she gave those differing accounts.[114] If Ms Scaroulis was so experienced that she would never set it up incorrectly, then there is no cogent explanation for her inability to provide a consistent account of how she set it up.
[113]T29
[114]T427
189Ms McLure said that she was aware Ms Scaroulis was an experienced gym user and knew her way around a gym. Ms Wright said that she did not expect Ms Scaroulis would have set up the stepper loose on the feet, as it was extremely unstable.[115]
[115]T352, L1-16
190Ms Scaroulis’ contemporaneous statement to Ms McLure that the “step hadn’t been clipped in properly” is inconsistent with her oral evidence that, when she set it up the final time, it actually did click in properly.
191Mr Boisvert observed Ms Scaroulis stepping up and down on the step twice before retrieving the weights. It is unlikely she would have been able to do that if the platform were sitting loose on its feet.
192Ms Wright also observed Ms Scaroulis to be stepping up and down on the stepper a couple of times while holding dumbbells.
193I find it improbable that Ms Scaroulis had set up the stepper without clicking the feet into the platform. In that position, even the slightest pressure on the edge causes it to dislodge. No sensible person would use the stepper in that state.
194It is more likely than not that Ms Scaroulis set up the platform with the feet pointing out, but clicked in. That would explain why she was able to step up and down off it before the incident, as observed by Ms Wright and Mr Boisvert.
Were the holes on the base of the platform worn out?
195Ms Scaroulis’ case was that the holes in the base of the stepper were worn out such that there was inadequate grip between the platform and the feet, and this was the cause of her fall.
196It was argued that the defendant would then be liable because it did not have an adequate system of inspection of the steppers. Such a system would have uncovered the fault and ensured the device was removed from circulation.
197Understood this way, the argument relies on inferential causation. Namely, the Court is being asked to infer that the accident was caused by the worn-out holes which made the platform unstable.
198In a civil case, where direct evidence is not available to support a factual finding, inferences may be drawn from evidence which the Court accepts. In such circumstances, the evidence must “give rise to a reasonable and definite inference … mere conjecture based on conflicting inferences of equal degrees of probability”[116] is insufficient.
[116]Bradshaw v McEwans (1951) 217 ALR 1 at 5
199In Jones v Dunkel,[117] Dixon CJ considered that principle and said:
“…the law does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may be reasonably satisfied.”[118]
[117](1959) 101 CLR 298
[118]Ibid at paragraph [2]
200Ms Scaroulis’ evidence that the holes under the step platform were worn out is the only evidence before the Court about state of the holes of the stepper before the fall. Her evidence was that after she set it up twice, and it fell apart twice, she turned the platform over and saw that the holes were overused.[119]
[119]T30
201Ms Scaroulis described why she persisted with the stepper:
“…it was slipping from the holes and they were overused, so I just assumed I could put it together and it did go together, and it actually did click in properly, so I had no difficulty on the third go.”[120]
(emphasis added)
[120] T59-60
202I do not accept Ms Scaroulis evidence that the holes were enlarged or overused and that nevertheless she somehow managed to make it click properly. It is not clear on the evidence how it could click properly if the holes were loose or worn.
203Ms Scaroulis’ evidence was not supported by the two contemporaneous reports completed by Ms McLure, neither of which mention loose or worn-out holes.
204Contrary to Ms Scaroulis’ oral evidence that the holes were loose but nevertheless she made it click in properly, both reports refer to her account of the stepper not having been “clipped in properly”.[121]
[121]PCB 326
205In cross-examination, Ms Scaroulis was asked whether the first time she mentioned that the holes were enlarged was January 2022. Ms Scaroulis answered:
“No, I sent a diary note to my lawyer and informed her.”[122]
[122]T133, L28-31
206No diary note was tendered in support of this evidence.
207Given my findings that Ms Scaroulis was an unreliable witness, other (reliable) evidence would be needed to enable the Court to make a finding that the holes were enlarged.
208There is no evidence that any witness observed enlarged holes on any stepper.
209Ms Savona’s evidence was that she had encountered a stepper which was unstable at the start, and she had to turn it over to check if it was clicked in properly. Ms Savona did not say that, when she did so, she noticed enlarged holes.
210Ms Wright said she had never observed a defect in the steppers at the gym.
211Mr Diamond’s report suggested wear and tear can cause gripping issues, but his report did not specifically address the peg-in-hole mechanism which is the subject of these proceedings.
212It is improbable that Ms Scaroulis, a very experienced user of these devices, would have noticed enlarged holes and yet continued using the device.
213It is improbable that having noticed the enlarged holes, Ms Scaroulis would then suffer a dramatic fall, breaking her nose, and not mention the enlarged holes when she was asked, immediately after the fall, to explain what had happened.
214Ms Scaroulis has not discharged her onus of establishing that the holes on the stepper were enlarged or loose.
215If I am wrong about that and Ms Scaroulis has established that the holes were enlarged, that does not justify a conclusion on the evidence that the accident was so caused. There are a number of reasons for this. Ms Scaroulis said that while carrying a 5-kilogram dumbbell in each hand, she stepped onto the stepper. When asked by the Court to clarify how she was positioned on the step, Ms Scaroulis (by reference to the diagram in the Manufacturer’s Manual[123]) indicated her foot was in the very middle part of the step exactly like the man depicted in the diagram.[124]
Diagram from Manufacturer’s Manual
[123]Exhibit D7; PCB 134-135
[124]T172, L1-11
216Ms Scaroulis demonstrated with her hands how the device “detached itself from the front of the step and flipped [her] off.[125] The following exchange occurred:
So, you were standing on the step like the little man in the picture at p135?‑‑‑Correct. That's – yeah.
And then just tell us – you said it lifted off. Just point to the diagram on - yes?‑‑‑So it detached itself from here and ‑ ‑ ‑
To your – it detached itself from the bottom where the legs fit on?‑‑‑Yes, that's correct. So that's where - it detached itself from there and there
…
So, the side of the platform that is level with your face, as you're climbing onto it, lifted up?‑‑‑Yes, that's correct.[126]
[125]T32
[126]T32-33
217If Ms Scaroulis’ evidence is to be accepted, she was placing downward pressure onto the device with her right foot while holding weights, her foot placed in the middle of the platform. Even if the holes were loose, there was no evidence to explain how the platform could have detached itself from the feet and “lifted her off” with her weight placing downward pressure on centre of the platform.
218Ms Scaroulis said she set the stepper up twice and it fell apart, then she set it up again, stepped on it once or twice and it was stable, then when she stepped on it the final time “it lifted (her)”. That series of events is improbable.
219It is also improbable that anyone would persevere in those circumstances, let alone a person with Ms Scaroulis’ many years of experience with steppers.
220Ms Wright saw Ms Scaroulis climb up onto the platform and then back down again “a couple of times” while holding the dumbbells.[127] This contradicts Ms Scaroulis’ evidence that the first time she stepped on the platform with the dumbbells, it lifted her off.[128]
[127] T298
[128] T31
221Senior counsel put an alternative proposition that if Ms Scaroulis had the board set up with the feet pointing outwards and it was clicked in but was still unstable, then there was a defect in the device.[129]
[129] T439-440
222This assumes that the only explanation for the fall is a defect either in the device or its set up. Other explanations are open on the evidence.
223Ms Scaroulis was asked about where her left foot was at the time of the accident. She said she was certain she placed her right foot on the platform in the correct manner and could not remember what her left foot was doing.[130]
[130]T133
224It is possible that Ms Scaroulis tripped with the left foot or overbalanced, each of which would logically and rationally explain the accident and her injury.
225Senior counsel for Ms Scaroulis conceded that if Ms Scaroulis had set it up incorrectly, with the feet pointing outwards but clicked in, then the inference that “the worn steps” had anything to do with the fall is a much weaker inference.[131] By “worn steps” I understood a reference was being made to “worn holes” in the base of the platform.
[131] T460, L7-14
226Senior counsel for Ms Scaroulis submitted that the Court cannot make a finding that Ms Scaroulis tripped or overbalanced because Ms Scaroulis has always denied that she tripped, and there is simply no evidence that she tripped.[132]
[132] T451, L1-14
227It is not necessary to make a finding that Ms Scaroulis tripped or overbalanced, and I make no such finding. However, there are a number of reasons why the evidence leaves open the possibility that she did so.
228First, Ms Scaroulis is an unreliable witness. Her denial of having tripped or overbalanced is also unreliable. Other witnesses (whose evidence I do accept) did not see the fall.
229Second, Ms Scaroulis, an experienced user of steppers nevertheless set it up incorrectly.
230At the highest level, the platform was 25 centimetres above the ground. It is possible that when she raised her left foot, she missed or tripped on the platform due to its height.
231Third, Ms Scaroulis was carrying an additional 10 kilograms of weight, 5 kilograms in each hand. That may have contributed to her overbalancing as she raised her left foot to join the right on the platform.
232The state of persuasion permitted by the evidence is that the possibility of tripping or overbalancing is at least of equal probability as the other possibilities put forward by Ms Scaroulis to justify her case based on a faulty stepper.
233It is therefore not possible to draw the inference Ms Scaroulis seeks about the cause of the fall because the inference that she tripped or overbalanced, as submitted by the defendant, is of equal probability and a choice between the two inferences becomes a matter of conjecture.
234On the whole of the evidence, I am unable to find that Ms Scaroulis has satisfied her onus of proving that the fall was caused by any defect in the device.
Summary of findings on what facts are established by the evidence
235There is no reliable evidence that the holes on the base of the platform which connected it to the feet were worn out or loose. Consequently, I cannot find that the holes had any role in causing the incident to occur and the plaintiff’s case in negligence based on provision of a faulty stepper fails at the first hurdle.
236Ms Scaroulis set up the stepper incorrectly, namely with the feet pointing outwards, and it is more probable than not that she clicked the feet into the platform when she did so.
237That leaves the “supervision case” to be decided, namely whether the incorrect set-up was a cause of the fall and whether supervision of the gym floor would have avoided the injury.
Issues raised by the parties on the “supervision case”
238Ms Scaroulis bears the legal and evidentiary burden of establishing that it is more likely than not that the defendant was negligent. The difficulty for Ms Scaroulis is that I have been unable to accept her evidence about the circumstances and the cause of the fall.
239The Second Further Amended Statement of Claim pleads that the defendant, as owner and occupier of the premises and supplier of the stepper, owed Ms Scaroulis a duty to take such care as was reasonable in all the circumstances to ensure she was not injured by the state of the premises.
240At common law, an occupier owes a duty to lawful visitors to take reasonable care to avoid a foreseeable risk of injury materialising.[133]
[133]For example, Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 665
241The defendant admitted that Ms Scaroulis’ membership of the gym, presence on the premises and use of a device provided by the defendant, was sufficient to establish the existence of this relationship and gave rise to such a duty on the part of the defendant.[134]
Did the defendant owe Ms Scaroulis a duty to provide supervision of the gym floor which would have enabled detection and correction of the incorrect set up prior to the fall?
[134]Defence dated 7 May 2021 at paragraph [7]
242Turning now to analysis of the issues as raised by the parties in respect of the extant case, being the duty to provide supervision.
243Counsel for the defendant submitted that the risk of harm which the defendant would need to consider would be that a user might misuse the stepper.[135] I took this to mean incorrectly use the stepper and, by inference, be thereby injured.
[135]T395, L19-31
244Senior counsel for Ms Scaroulis submitted that if I find there was incorrect set-up of the stepper, I ought to go on to consider whether the defendant had an obligation to provide supervision of Ms Scaroulis which would have enabled correction and thereby avoided the accident.[136]
[136] T472, L14-16
245The premise of this submission is that the accident was caused by the incorrect set-up. For reasons which will become apparent, Ms Scaroulis has not established that the incorrect set-up of the stepper had the necessary causal relationship with the accident (at law and in fact).
Foreseeability and relevant evidence
246Section 48(1)(a)-(b) of the Wrongs Act 1958 (Vic) (“the Act”) provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known) and not insignificant.
247No evidence was led about any recorded incidents involving steppers at the gym. Ms McLure said she had not heard about any incidents involving injury or a fall arising from the use of steppers.[137]
[137]T340
248Ms Savona said she had trouble with a stepper clicking in at first but was unable to say what she perceived the cause of the trouble might have been.
249Ms McLure said that if she was not working one-on-one with a client, she was required to supervise on the gym floor.[138] No direct evidence was given as to what this supervision entailed.
[138] T317, L7-8
250There was no system of interaction with gym members exercising independently, unless they asked a question or sought help. Ms McLure said:
“People tend to put their headphones in and do their own thing.”[139]
[139] T317, L15-20
251Ms McLure told the Court that she set up steppers on a regular basis for pump classes and let people jump on them.[140] Ms McLure said:
“Properly set up, steppers like this are very stable”.[141]
[140]T351, L15-21
[141]T356, L22-23
252Ms McLure was experienced with setting up and using the steppers for group classes. No objection was raised to Ms McLure expressing an opinion on the safety of the steppers. Senior counsel for the plaintiff in closing relied on her opinion about the safety of the steppers.
253If she had seen anyone using a stepper set up with the feet pointing outwards, Ms McLure said she would immediately have intervened because it was plainly unsafe.[142] Ms McLure did not elaborate on what “plainly unsafe” meant.
[142]T354, L10-12
254No other evidence was led by either party on the question of incorrect set-up and safety.
255Based on the evidence of Ms McLure, a trainer working on the defendant’s premises whose duties included supervising the gym floor, the defendant was or ought to have been aware that incorrect set-up of the stepper was potentially unsafe.
256The defendant was aware that people like Ms Scaroulis were exercising independently unless they needed to ask a question from a trainer on the gym floor.
Was the risk of injury from incorrect use of the stepper “not insignificant”?
257Section 48(3) of the Act provides so long as the risk is not far-fetched or fanciful it can be found to be “not insignificant”.
258There are no instructions printed on the stepper itself as to the correct way for it to be set up.[143] Looking at the exhibit stepper, it seems just as easy to set it up with the feet pointing outwards as it is with the feet pointing inwards.
[143]Exhibit D6 – Step Reebok platform with two feet, tendered on 16 August 2023
259To set it up in accordance with the manual, a person would have to be aware of the correct set-up. That may involve training (for example in a group class), reading the Manufacturer’s Manual or other written instructions, or by receiving an induction to the gym which included an explanation of correct set-up. None of these were provided to the plaintiff by the defendant.
260Given the variety of uses of the stepper, including that people jump on them with or without weights, and the ease with which a stepper can be set up incorrectly, I find the risk of injury from incorrect set-up was not far-fetched or fanciful and therefore, not insignificant.
What is the extent of any obligation to supervise the gym floor?
261Pursuant to s48(1)(c) of the Act, the existence and extent of any obligation on the defendant to supervise the gym floor is dependent upon a finding that, in the circumstances, a reasonable person in the defendant’s position would have taken precautions against the risk of injury from incorrect set-up of the stepper.
262The enquiry as to the precautions a reasonable person in the defendant’s position would have taken is guided by s48(2) of the Act, which provides as follows:
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider (among other relevant things)–--
(a) the probability that harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
263In Roads and Traffic Authority of NSW v Dederer,[144] Gummow J said:
“….In each case, the question of whether reasonable care was exercised is to be adjudged prospectively, and not by retrospectively asking whether the defendant’s actions could have prevented the plaintiff’s injury….”[145]
[144][2007] HCA 42
[145]Ibid at paragraph [65]
264His Honour referred to the judgment of Hayne J in Vairy v Wyong Shire Council:[146]
“When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.[147]
[146][2005] HCA 62
[147]Ibid per Hayne J at paragraph [126]
265Given that the assessment under s48(2) of the Act involves a factual enquiry, it is convenient to briefly set out the relevant evidence.
Evidence regarding risk
266Ms Scaroulis said that when she joined the gym, she had not been given an induction into the facility and had not been provided with a workout program. She was told she could start working out in the gym and a program could be done later. She said she started training at the gym without receiving instructions on how to use the machinery.[148]
[148] T23-24
267Ms Scaroulis was an experienced gym goer and very experienced with steppers. She agreed that she did not need instruction, nor did she need to see the Reebok Manual prior to using the stepper on the day of the incident.[149]
[149]T92, L17-18
268On the day in question, Ms Scaroulis attended the gym for independent exercise. There was one instructor, Lisa McLure, and possibly another for a change of shift.[150] The gym area was partitioned by a curtain which was half open. The curtain was used to section off exercise classes from the remainder of the gym.[151]
[150] T26, L1-22
[151] T295, L25-31
269On one side of the curtain was the aerobic area, on the other was an area fitted out with machines such as treadmills, bikes and rowers.[152]
[152] T294, L6-7
270Initially, Ms Scaroulis was in the middle of the aerobic area, and she set the stepper up at level 3 but had some difficulty with it. She carried the stepper in its assembled state over to an area behind the curtain nearer the wall. This blocked the view from the reception desk.
271The curtain was pulled about halfway across. When asked why she did that, Ms Scaroulis said it was for privacy:
“I like to work out on my own, I don’t like people watching me a lot of the time, so when I’m doing certain exercises, I prefer to just have my own space, and I’ve done that for a long time. So um, yes, I’m aware that I also work out in the gym where there are other people as well. But if I can take my work out area in a different area where it would be ideal not to be watched all the time.”[153]
….
“I chose to do a private work-out.”[154]
[153] T31, L1-12
[154]T177, L11-17
272Ms Scaroulis said once she had located herself behind the curtain she stepped up and down on the step a couple more times before going to get the dumbbells.
273Mr Boisvert corroborated Ms Scaroulis’ account about the curtain. He could see that the curtain was partly drawn.[155]
[155] T184, L19-31
274Ms Wright said she was facing away from the entrance of the gym and saw the stepper set up in “an odd place”, up towards the wall, the long edge of the platform running parallel with the wall.[156] Prior to the fall, the curtain was fully open. Senior counsel asked Ms Wright if it was “partly closed”. Ms Wright said “it depends how partly you want to say it is, how I saw it, it’s fully open.[157]
[156] T297-298
[157]T307
275At the time of the incident, Ms Jenny Broomhall was at reception[158] and Ms McLure was preparing an exercise program for a member.[159]
[158] T317, L27
[159] T318, L17
276Ms McLure was at her desk opposite the reception desk[160] when she heard a loud bang and went over to see what had happened. Ms McLure described the curtain as being “bunched up a bit” and drew a depiction of it on the diagram.[161]
[160]T318-319; Exhibit D12 – Plan of gym marked with the letter D to indicate the position of Ms McLure’s desk, tendered on 21 August 2023
[161]T319; Exhibit D12
277Based on the description provided by Ms Scaroulis, locating herself behind the curtain for privacy meant that she was not visible from the desk where Ms McLure was standing. She would have been partly concealed by the curtain and partly by the various exercise machines in the main area of the gym.
278Ms McLure said that in all the time she had been a trainer at the YMCA, she had never observed anyone setting up a stepper with the feet pointing outwards and had never observed a defect on the steppers.[162]
[162] T339, L21-31
279Ms McLure described setting up the stepper. This included turning the platform face down onto the floor so that its holes were visible and then placing the feet down into the holes. Ms McLure said she had done this set-up hundreds of times.[163]
[163] T340, L1-18
280Mr Ritchie told the Court he attended after the accident to provide support for Ms Scaroulis. He also said that some months after the incident, he went to the gym and observed that some of the machinery had been replaced and all the steppers as well.[164]
[164]T198
281Ms McLure told the Court she had not heard about similar accidents at the YMCA while she was there and had never seen a wholesale replacement of the steppers in her time at the gym.[165]
[165] T340-341
282Ms Wright also told the Court she had not observed any wholesale replacement of the steppers.[166]
Probability that harm would occur from incorrect use of the stepper if care was not taken
[166]T292
Reebok Instruction Manual
283The Manual provides three diagrams for correct assembly at the three possible levels. All three have the feet of the platform positioned underneath it. There is a diagram which shows that to lock the feet into the platform, the user must place the platform on top of the feet and a “click” must occur.[167]
[167]PCB 135
284The Manual also provides that “injuries to health may result from incorrect or excessive training”. It contains an instruction to the user to ensure that the equipment is on a flat stable surface with at least a 0.6 metre of clear area surrounding the equipment.[168] The Manual provides no assistance on the question of probability of injury in the event the stepper is set up with the feet facing out.
[168]PCB 134
285No expert evidence was led about the risk of harm associated with the use of the stepper assembled with the feet pointing out. Aside from Ms McLure, who said it was “plainly unsafe” to use it that way, no direct evidence was led about risk associated with incorrect assembly. That is not surprising, as it was never Ms Scaroulis’ case that she had placed the feet around the wrong way.
286The feet can be placed either way, and the same pegs would fit into the same holes regardless of the orientation of the feet. It is therefore difficult to apply common sense to an assessment of probable harm because common sense would suggest there is no discernible difference in stability on account of the orientation of the feet.
287There was no expert evidence to demonstrate or explain how the platform could have come off the feet in that state. Similarly, no expert evidence to demonstrate what was the probability of instability as compared to the situation when the feet are correctly orientated underneath the stepper.
288The state of the evidence therefore is such that the Court is not able to undertake any meaningful assessment of the relative likelihood of injury arising from the incorrect orientation of the feet.
The likely seriousness of the harm
289Ms McLure said that steppers can be used when laying down on the floor to do chest work and triceps work in a group class context.
290In addition, use of steppers can be dynamic, fast paced and potentially may involve the user carrying weights or bars while they step on or off the device. This is what Ms Scaroulis was doing when she suffered her injury.
291The only piece of evidence available is that incorrect set-up is “plainly unsafe”. From this, it is possible to infer that some harm may come from incorrect set-up.
292Given it is possible to set the stepper up with the feet pointing out or in, and it can be clicked in each time, I am unable to understand how the orientation of the feet might contribute to the harm. It might be that the harm arises in a group class context with a risk that someone might trip over the feet of their own or someone else’s stepper if they are pointing out. Alternatively, there might be some other reason.
293In the absence of direct evidence about the particular danger posed by placing the feet pointing outwards as opposed to inwards, I am unable to make a finding on the likely seriousness of the harm which might arise from incorrect set-up. To do so would involve impermissible speculation and guess work.
The burden of taking precautions to avoid the seriousness of the harm
294Section 49(a) of the Act provides that the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm.
295The relevant burden mandated by this provision is at least the burden of providing supervision, instruction, notice or training for independent exercisers like Ms Scaroulis, but would also include the burden of ensuring all members in the gym had supervision notice or training.[169]
[169]Venues NSW v Kane [2023] NSWCA 192 at paragraphs [64]-[65]
296No evidence was led on the burden of taking precautions. Counsel for the defendant led evidence that the defendant was a not-for-profit charitable organisation.[170]
[170]T314-315
297In the absence of evidence, I am unable to make a finding about the burden of taking precautions to avoid the seriousness of harm.
“The Supervision Case”
Applicable principles
298Ms Scaroulis bears the legal and evidentiary burden of establishing what a reasonable person in the position of the defendant was required to do by way of response to the risk of injury from incorrect use of the stepper.
299Section 48(1)(c) of the Act provides that a person is not negligent in failing to take precautions against a risk of harm unless, in the circumstances, a reasonable person in the person’s position would have taken those precautions. This is a gateway provision. A plaintiff who fails to satisfy this provision cannot succeed.[171]
[171]Venues NSW v Kane [2023] NSWCA 192 at paragraph [60], referring to the equivalent provision in the Civil Liability Act 2002 (NSW), being s5B(1)(c)
300In making an assessment whether the defendant failed to do what was reasonable in all the circumstances of the case, it is necessary to consider the circumstances of the defendant, the nature of the premises and the circumstances of the plaintiff’s access to the premises.[172]
[172] Vairy v Wyong Shire Council [2005] HCA 62 per Gleeson CJ and Kirby J at paragraph [6]
301Ms Scaroulis must show that appropriate supervision would have produced a different outcome for her, namely avoided her injury.[173]
[173]Cotton on Group v Golowka [2022] VSCA 279 at paragraph [169]
302This different outcome can only be established by means of a counterfactual hypothesis. That is, Ms Scaroulis must put forward an alternative state of facts, of what system of supervision the defendant ought to have had in place, and how that supervision would have avoided her injury.[174]
[174]Munday v St Vincent’s Hospital Pty Ltd [2021] VSCA 170
303Ms Scaroulis’ counterfactual hypothesis must identify two elements:
(a) what the defendant would have done had reasonable care been exercised; and
(b) how the taking of that action would have avoided the injury.
304The evidence on the counterfactual hypothesis was extremely limited, as will be seen from the following summary of the evidence on the supervision case.
Evidence relevant to the supervision case
305The gym is a small not-for-profit gym in Cowes in regional Victoria.
306Ms Scaroulis was injured in the “Aerobic Area” of the gym.
Ms Scaroulis
307Ms Scaroulis attended the gym sometime in the afternoon. She was unable to be certain of the precise time but said it was between 4.00pm and 5.30pm. Ms Scaroulis initially did a warm-up on the cardiovascular machines, on the treadmill and on the cross trainer, then she went to the weight training area.[175]
[175]T24, L20-31
308Ms Scaroulis confirmed she had previously said she had been there for 5-10 minutes prior to the incident and had previously attended the gym about five times.[176]
[176]T24, L9-18
309The First Aid Report completed by Ms McLure provides that treatment began at 5.42pm, an ambulance was called at 5.55pm and arrived at 6.45pm.[177]
[177]Exhibit D10; PCB 330
310None of this evidence was contested. I find therefore that Ms Scaroulis had been at the gym doing a warm-up across a number of machines for approximately 10 minutes prior to the incident.
311Ms Scaroulis’ evidence was that she had deliberately placed herself in a part of the gym, behind a curtain, to do a private workout.
312Ms Scaroulis said “if the curtain had been fully opened, every single person in the gym would have seen me do the actual exercise”.[178]
[178]T177, L18-22
Mr Diamond
313Mr Diamond’s report provided that:
A gym instructor can supervise a gym facility, maintain exercise equipment, provide technique correction for persons using exercise equipment and may have to adjust the exercise equipment to suit the persons (sic) requirements.[179]
[179]PCB 95
314Mr Diamond relied on information from two sources for the opinions expressed in his report. First, “Fitness Australia Business Principles and Guidance for Fitness Businesses 2015” (“Fitness Business Guidelines”). Second, “The Australian Fitness Industry Risk Management Manual” (Risk Management Manual”).
315Neither party referred to either document during the trial. No submissions were made on the contents of the documents.
316Mr Diamond’s report cited the sources as authorities for the following (relevant) propositions in his report:
(a) a gym ought to ensure that exercise equipment is correctly assembled;
(b) a gym instructor can supervise a gym facility, maintain exercise equipment, provide technique correction and adjust equipment to suit the person’s requirements;
(c) instructing participants in how to properly use equipment is key to managing risk; and
(d) exercise equipment-related risk issues can be managed by:
(i)following standards and procedures including placing equipment signage including warning labels at eye level and providing appropriate supervision and instruction for exercise equipment use;
(ii)ensuring that equipment is assembled in accordance with manufacturers recommendations; and
(iii)ensuring that all clients of the gym are properly introduced to each piece of equipment.[180]
[180]Exhibit P7; PCB 95-96
317Mr Diamond opined that the defendant should have:
(a) given Ms Scaroulis an induction of the gym (relevantly) explaining safe equipment operation;
(b) provided supervision of the gym floor to ensure users did not misuse the equipment; and
(c) approached Ms Scaroulis if she was observed using the equipment incorrectly and offered to assist her.[181]
[181]PCB 99
318Mr Diamond’s opinion did not identify the type of supervision recommended, the cost or burden of providing such supervision, and how it was to be provided to independent exercisers like Ms Scaroulis. Bearing in mind that the injury occurred within about 10 minutes of Ms Scaroulis attending the gym, the report provided no assistance to the Court in understanding the degree of supervision appropriate for an independent exerciser in that kind of time frame.
319The particular supervision relied on by senior counsel for Ms Scaroulis was general supervision such as floor supervisor.[182] There is evidence in this case that there was such a person, Ms McLure. However, she was engaged in preparing a program for a member at the time of the incident. On Ms Scaroulis’ evidence, there was possibly another person supervising, although this was not clear.
[182]T472
320No submissions were made and there was no evidence about whether the gym had signs or instructions on the wall showing members how to use the stepper. No evidence was given by Ms Scaroulis about whether she would have paid attention to any such signs. In the absence of evidence or submissions, I make no finding about this aspect.
321There was no detailed evidence about the system in place for the supervision and correction of people like Ms Scaroulis engaged in independent exercise.
Ms McLure
322Ms McLure said people doing independent exercise were left to their own devices and if they had a question, they would come and ask.[183] Only people doing one-on-one training received the complete attention of the trainer.
[183]T317, L14-21
323In her role as trainer on the day of the incident, Ms McLure was either roaming around if she did not have any appointments, or generally providing supervision.[184]
[184]T317
324Ms McLure was not asked what that supervision involved. However, she did confirm that she was available to answer questions from members.
325At the time of the incident, Ms McLure was preparing a program for a member. I understood this to be conducting a one-on-one training session with the member. She did not see the incident as she was involved in the training.[185]
[185]T361, L5-13
326In cross-examination, Ms McLure said that the gym was a very safety conscious gym providing clean, well-maintained premises and providing supervision. When asked about whether the supervision included someone wandering around making sure everything was okay with the members, Ms McLure said “It depends on if you’re there when the health club shift is on”. Ms McLure further clarified that at the time of the incident, she was on the health club shift which involved being in the gymnasium area, roaming around, doing programs for people and providing general supervision when not involved with a client.[186]
[186]T316-317
327When asked whether it was part of her work that day to wander around and make sure everything was okay, Ms McLure said:
“Yes, well, we’re there to answer questions but we also have to do programs for people as well, so someone would come up and ask you if they need a hand.”[187]
[187]T353, L13-25
328At the time of the incident, Ms McLure was standing near her desk (opposite to the reception desk) on the other side of the gym.[188]
[188]T318-319 and Exhibit D12
329I accept Ms McLure’s evidence that if had she seen Ms Scaroulis before the fall with the feet of the device in the incorrect direction, she would have intervened. However, I find that Ms Scaroulis’ concealing herself behind the curtain ensured that could not occur.
330Ms Scaroulis was there for independent exercise and not to receive any guided training, assistance or instruction. She did not need training on the use of the stepper as she was experienced.[189] Ms Scaroulis said she could have asked for help but did not because “I believed I could [put it together] on my own”.[190]
[189]T59-60
[190]T60
331
Counsel for the defendant asked Ms Scaroulis whether the option was there for her to ask a supervisor for assistance “if you had a different thought process”,
Ms Scaroulis said:
“I was putting it together correctly, it’s just that it was falling apart.”[191]
[191]T60, L1-6
332In re-examination, Ms Scaroulis was asked about whether, within the permissibility of gym etiquette, she could approach a personal trainer for assistance, if that trainer was working one-on-one with a gym member. Ms Scaroulis said “yes”, and the trainer might then decide to refer her to someone else if she or he could not provide assistance at that time.[192]
[192]T176, L16-23
Findings as to the duty to provide supervision
333Taking all the evidence into account, I consider that the defendant had a broad duty to provide supervision to members performing independent exercise which included being available to answer questions. The reason for this is the combination of the admission by Ms McLure that incorrect set-up of the stepper was unsafe, the industry practice of recommending supervision of the gym floor, ensuring appropriate instruction and supervision for exercise equipment use, and the recommendation that managers should ensure exercise equipment is assembled in accordance with manufacturer’s recommendations.
334However, I find that Ms Scaroulis has not discharged her onus of establishing the scope and content of that duty.
335No evidence was led about the form the supervision ought to have taken, how many staff were required to be on the gym floor at any one time to discharge the duty and what, if any, relationship the number of staff ought to have had to the number of members doing independent exercise.
336In the absence of evidence, I am unable to make the necessary findings regarding the scope and content of the duty.
337Independent exercisers like Ms Scaroulis might be working out on a variety of different pieces of equipment for indeterminate periods of time at each. The evidence did not allow a finding about how supervision ought to be carried out in such circumstances.
338There was insufficient evidence going to the question whether it was reasonable for a not-for-profit gym to provide independent exercisers with a higher level of supervision than was being provided on the day of the incident.
339It follows that Ms Scaroulis has not established that the defendant’s duty included ensuring that each time a member moved to a new piece of equipment, a supervisor ought to have checked to ensure they have assembled it or were using it in accordance with the manual. That would more closely resemble one-on-one training, and it is not what Ms Scaroulis was there to do that day.
340If I am wrong about that, there is insufficient evidence that the absence of supervision was a cause of Ms Scaroulis’ incident.
Causation
Relevant principles
341The plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.[193]
[193]Section 52 of the Act
342A determination that the defendant’s negligence caused the accident comprises of factual causation (that the negligence was a necessary condition of the occurrence of the harm) and (scope of liability) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused.[194]
[194]Section 51 of the Act
343A plaintiff cannot reason from a defendant’s failure to reduce an identifiable risk to a conclusion of liability. There must be evidence that any breach contributed to the accident in a material way. It is insufficient for Ms Scaroulis to point to evidence of a heightened risk generally, Ms Scaroulis must demonstrate that the risk actually materialised in this case.[195]
[195]Roads and Traffic Authority v Royal (2008) 245 ALR 653
344On the evidence, I cannot determine whether Ms McLure’s evidence that it was “plainly unsafe” was attributable to the possibility that someone in a group session might trip over the feet of their own stepper or that of another member or whether it is “plainly unsafe” because the set-up causes instability for the platform. There is no evidence clarifying the position.
345In the circumstances, accepting that incorrect set up was “unsafe” does not enable a finding that it is more probable than not the incorrect set-up was a cause of the incident.
346In the absence of evidence showing how the incorrect set-up might lead to a fall, Ms Scaroulis has not discharged her onus of establishing that any risk materialised in her case.
Evidence linking the fall to the failure to supervise
347At best, Ms Scaroulis was setting the stepper up for a maximum of a few minutes prior to the fall. During those few minutes, no one observed her initially setting up the device in the middle of the aerobic area, if that is indeed what she did. Ms Wright and Mr Boisvert saw her by the wall where the incident occurred. Ms McLure saw her after the fall.
348The evidence allows a finding that the incident occurred very quickly, in a matter of seconds. Ms Scaroulis described the incident as “extremely quick, very quick”.[196]
[196]T178, L15-16
349Counsel for the defendant submitted that Ms Scaroulis had not established that there would have been sufficient time to prevent her fall, even if someone on the gym floor had seen her with the feet of the platform pointing outwards.[197]
[197]T405, L9
350I accept that submission. Based on the description of events provided by Ms Scaroulis and Mr Boisvert, between the time that she assured herself the stepper had clicked in properly and the time she retrieved the weights and climbed on, there would have been less than a minute or possibly two. In those circumstances, it is difficult to see what kind of supervision (other than one-on-one training) could have averted the fall.
351Ms Scaroulis had deliberately set herself up in a position where she was effectively concealed from view[198] by a curtain. The evidence did not allow a finding that any supervision would have been effective in such circumstances unless the supervisor was following Ms Scaroulis around to each piece of equipment as in one-on-one training.
[198]T324, L14-16
352A further complication for Ms Scaroulis’ counterfactual case is that Ms Scaroulis never accepted that she had set the stepper up with the feet pointing outwards. A number of questions were asked of Ms Scaroulis in re-examination, but no question was asked of her whether, if a trainer had come to tell her she had set up the step incorrectly, she would have taken their advice.
353In the absence of direct evidence, it may be possible to draw an inference about whether Ms Scaroulis would have taken the advice of any supervisor.
354Based on Ms Scaroulis’ evidence about her level of experience, her desire to perform a private workout and her steadfast adherence to the notion that she had set up the stepper correctly, one inference is that Ms Scaroulis is unlikely to have availed herself of any assistance from the staff at the gym, even if such had been offered prior to the accident. This inference is available for the following reasons:
(a) on her evidence, Ms Scaroulis continued setting up and using the device despite it becoming apparent to her that there was a problem with it; and
(b) when asked whether the option was there for her to ask a question of a trainer, Ms Scaroulis maintained her position that she did not need to ask a question,[199] although did concede that trainers were available if a member wished to ask a question.
[199]See paragraphs 329-331 of this Judgment; T60, L1-6
355There is also an inference available that as an experienced user, if she had simply made a mistake or had not been paying attention to what she was doing and someone had highlighted the incorrect set-up, she may have heeded their advice.
356Both inferences are available on the evidence. However, the evidence does not give rise to either as the reasonable and definite inference and the choice between them becomes a matter of conjecture.
357Taking the whole of the evidence into account, it is at least as probable that Ms Scaroulis would not have taken any advice from a trainer and therefore the fall would not have been avoided.
Was the incorrect set up of the stepper a cause of the fall?
358There was no expert evidence which addressed this issue.
359An inference on causation can nevertheless be drawn, in the absence of expert evidence, if the evidence justifies an inference of probable connection.[200]
[200]East Metropolitan Health Service v Ellis [2020] WASCA 147 at paragraphs [271]-[274], cited with approval by the Court of Appeal in Cotton on Group v Golowka [2022] VSCA 279 at paragraph [126]
360Senior counsel for Ms Scaroulis conceded that if Ms Scaroulis had stepped directly onto the platform (as she described), even if she had set it up with the feet pointing outwards:
“.…then there would be no reason why the step should fall. So clearly, she didn’t step directly into the middle of the platform and stepped to some degree on one side or the other.”[201]
[201]T429, L28-31; T430, L1-5
361That submission was contrary to the evidence of Ms Scaroulis.
362It exposes the fundamental difficulty in the case. If Ms Scaroulis’ evidence about what occurred is rejected, the only way she can succeed is for some other alternative proposition about what occurred is accepted. Such proposition would not be based on her evidence at all. In this case, it could not be based on any evidence at all, as there is simply no evidence about it.
363It is difficult to see how Ms Scaroulis can discharge her onus in the circumstances.
364As stated above, common sense does not assist in resolving the question of causation as the same pegs would go into the same holes regardless of the orientation of the feet.
365On Ms Scaroulis’ evidence, she had raised the platform to the highest level, and she stepped in the middle of it as illustrated in the instruction manual. That would mean she would need to raise each foot a little higher than 25 centimetres off the floor to place it on top of the platform.
366Ms Scaroulis was carrying 5-kilogram weights in each hand.
367There was therefore a possibility of tripping with the other foot or overbalancing by virtue of the weights. That risk existed due to the height of the platform and the presence of the weights, regardless of the orientation of the feet and regardless of the position of the leading foot on the platform.
368Tripping or overbalancing as a cause of the incident is of equal probability to the stepper collapsing on account of incorrect set-up, and choosing between them becomes a guess.
Conclusion as to negligence on the supervision case
369Therefore, Ms Scaroulis has not established to the requisite standard that the defendant’s failure to supervise her use of the stepper materially contributed to the fall.
370Ms Scaroulis ’s case in negligence must therefore fail as it does not satisfy all the necessary elements.
Joint Memorandum regarding Australian Consumer Law
371On 23 August 2023, at the conclusion of the hearing, the parties filed a Joint Memorandum in which the position of the parties was refined, and certain aspects of the pleadings abandoned.
372The parties agreed that the relevant arrangement between Ms Scaroulis and the defendant constituted a contract for the supply of services. As such, ss60, 61 and 267(4) of the ACL apply.
373Counsel for the defendant did not make any submission on the Australian Consumer Law.
374Senior counsel for Ms Scaroulis submitted that the provision of a faulty step is a breach of the obligation under the Australian Consumer Law.[202] In this case, I find that Ms Scaroulis has not made out to the requisite standard that the defendant provided a faulty step and so it is not necessary to consider this submission any further.
[202]T470
375Senior counsel for Ms Scaroulis also submitted that the provision of a recreation facility such as a gym must be rendered with due care and skill under the Australian Consumer law. In particular, supervision of the gym floor and independent exercisers must be rendered with due care and skill,[203] which included providing supervision of the gym floor.[204]
[203]Ibid
[204]T471-472
376No further submissions were provided by either counsel on the Australian Consumer Law.
377Although the standard set by the guarantee of due care and skill can be equated with the common law duty to take reasonable care, a different analysis is required with respect to the guarantee for fitness for a particular purpose.[205]
[205]Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 at paragraph [6]
378The parties did not undertake any analysis of the requirements of the Australian Consumer Law. However, my findings in the negligence case, if equated with the ACL, mean that Ms Scaroulis cannot succeed under this ground.
379I therefore dismiss Ms Scaroulis’ claim in negligence and under the Australian Consumer Law and enter judgment in favour of the defendant.
Contingent findings – contributory negligence
380Had I accepted Ms Scaroulis’ evidence and upheld her case in negligence (faulty device with worn or loose holes), I would have been bound to consider questions of contributory negligence.
381The relevant principles for making an apportionment of contribution were set out by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd.[206] The Court is required to make a comparison of culpability – namely the degree of departure of each party from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. In doing so the Court must look at the whole conduct of each negligent party and subject it to comparative examination.
[206](1985) ALJR 492
382
In this case, contributory negligence was conceded by senior counsel for Ms Scaroulis,[207] who urged on the Court a finding that Ms Scaroulis was 20-25
percent liable for her own injury.
[207]T478-479
383If Ms Scaroulis had succeeded in establishing that the gym provided her with a faulty stepper, then its negligence would have involved the provision of a faulty stepper, failure to inspect the steppers for fault, and failure to remove the defective stepper from circulation on the gym floor.
384Ms Scaroulis was an experienced gym user and extremely experienced user of steppers. She said she did not need any instruction or training in the use of the stepper.
385According to Ms Scaroulis, she set the device up on at least three separate occasions and allegedly it fell apart each time, but she persevered. On turning the platform over, she saw the holes were worn and lose. Nevertheless she persevered. She set up the stepper a fourth time.
386She did not simply get another stepper from the 15 other devices available and did not ask a trainer for any assistance even though a trainer was available, and she could have done that.
387To complicate matters further, Ms Scaroulis set up the device in an “odd place”,[208] namely at such proximity to the wall as to create a risk (which eventuated) that any instability forced her, face first into the wall.
[208]T297
388Ms Scaroulis concealed herself behind a curtain ensuring that no trainer or other staff member could detect the potentially dangerous distance of the stepper to the wall and correct it.
389For an experienced user of these devices, these measures represented a significant failure to exercise reasonable care for her own safety.
390The fact that Ms Scaroulis set up the device on four separate occasions and it fell apart but she persevered, means that her degree of failure to take care for her own safety is much higher than it would be if she fell off the device the first or even second time she stepped on it. That failure was compounded by her proximity to the wall.
391On her evidence, there were not one, but six mistakes or errors on her part which contributed to the accident. Had Ms Scaroulis stopped at any one of them and taken an alternative device, the accident would have been avoided.
392Ms Scaroulis’ continued use of the stepper, after it fell apart on a number of occasions, involves a positive state of awareness of a risk and an election to continue regardless.
393In comparison, the defendant’s provision of a faulty stepper is less culpable. The difference is that no state of awareness can be attributed to the defendant in the provision of a faulty stepper.
394In these circumstances, I would assess the degree of Ms Scaroulis’ contribution to be 70 percent.
Contingent findings – damages
Medical treatment
395Ms Scaroulis was immediately taken by ambulance to the Wonthaggi Hospital[209] where she was diagnosed with:
comminuted bilateral nasal bones fractures with involvement of the anterior nasal spine and fragmentation of the anterior aspect of the bony nasal septum convex to the right related to the acute fractures.[210]
[209]T37, L31
[210]Exhibit P6 – Diagnostic Report at Plaintiff’s Court Book (“PCB”) 48 to 49 inclusive and as updated, as well as the medical reports contained under “Plaintiff’s Medical Reports” at PCB 50 to 86 inclusive, tendered on 17 August 2023
396On 14 April 2017, Ms Scaroulis underwent a rhinology procedure performed by open nasal manipulation at the hands of Mr Ryan de Freitas.[211] The procedure was neither successful in restoring Ms Scaroulis’ breathing, nor the appearance of her nose. It left her with “a crooked nasal airway, a substantial bump on the nasal dorsum, loss of tip support and an obvious fracture line through the nasal bones”.[212] There was also a significant deviated nasal septum to the right, obstruction, further twisting in the lower third, and another deviation of the septum high up towards the middle meatus and the sinus openings.[213]
[211]PCB 50
[212]PCB 72
[213]Ibid
397On 26 March 2018, Ms Scaroulis underwent a second surgery to correct the deficiencies, straighten the profile, lift the tip back into position and correct the deviated nasal septum. This was performed by Mr Glenn Burgess at the Cabrini Hospital in Malvern. Initially, Ms Scaroulis experienced an improvement in cosmesis and function of the nose.[214] However, she came to a third surgery due to breathing difficulties.
[214]Ibid
398On 23 January 2023, Mr Andrew Greensmith performed the third surgery, a septorhinoplasty procedure using a donor rib allograft.[215]
[215]PCB 52, 69
399Ms Scaroulis said following the procedure, she developed a large boil on the right side of her nose and had swelling and extreme discomfort. She was diagnosed with infection and spent three weeks in hospital on an intravenous drip.[216] The infection had not completely cleared when she was discharged, and she was required to undergo additional washouts.
[216]T41-43
400Ms Scaroulis described no airflow to her left nostril. Her nose feels unusual and uncomfortable, and she finds it difficult to wear reading glasses.
401Mr Greensmith considered it likely that Ms Scaroulis will require a further septorhinoplasty and possibly cartilage graft.[217]
[217]PCB 71
402Ms Scaroulis said that she has ongoing breathing difficulties which affect her sleep and lifestyle. In light of the numerous procedures and the expert opinions, I accept this evidence.
403Between March 2017 and the date of the hearing, Ms Scaroulis has undergone three nasal surgeries, had a terrible infection with the third, and a fourth surgery is being considered by her treating surgeon.
404Ms Scaroulis is a relatively young woman who will have to endure the ongoing consequences of the surgeries, likely for the rest of her life. She has suffered disfigurement to her nose which may or may not be improved with further treatment.
405In the circumstances, I accept the higher end of the range in the submissions made by senior counsel for Ms Scaroulis. Had Ms Scaroulis made out her case in negligence, I would have awarded $150,000 in damages. The parties had agreed special damages at $100,000.[218]
[218]T5, L11-14
Final orders
406My orders are therefore:
(a) Judgment for the defendant; and
(b) I will hear the parties with respect to costs.
Exhibit D9 – Incident report of Lisa McLure at page 326 of the PCB relating to the incident on
30 March 2017 at 5.45pm, tendered on 21 August 2023
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