Wilson v Nilepac Pty Ltd
[2011] NSWCA 63
•24 March 2011
Court of Appeal
New South Wales
Case Title: Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) Medium Neutral Citation: [2011] NSWCA 63 Hearing Date(s): 28 February and 1 March 2011 Decision Date: 24 March 2011 Jurisdiction: Before: Beazley JA at [1]
Tobias JA at [3]
Whealy JA at [144]Decision: (a)Appeal allowed.
(b)Set aside the orders made by McCallum J on 10 December 2009 and in lieu thereof that there be a verdict and judgment for the appellant.
(c)Remit the proceedings to McCallum J for the purpose of assessing damages.
(d)The respondent to pay the appellant's costs of the proceedings to date before McCallum J.
(e)The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified.
(f)Cross-appeal dismissed.
(g)No order as to costs
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: EVIDENCE -admissibility - expert opinion - relevance - whether medical reports tendered at the trial could be considered on the issue of liability and causation or only with respect to the latter
EVIDENCE - witnesses - credibility or reliability - whether the primary judge should have rejected expert evidence in relation to the reasonableness for the personal trainer to introduce a specific exercise and additions to that exercise
TORTS - negligence - breach of duty of care - personal training studio - whether a reasonably competent professional fitness trainer would have engaged an inexperienced and unfit individual in specific physical activities - Civil Liability Act 2002 (NSW), s 5B(1)(c)
TORTS - negligence - duty of care - social utility of gyms - Civil Liability Act 2002 (NSW), s 5B(2)(d)
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Mourbarak [2009] HCA 48; (2009) 239 CLR 420
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Dobler v Halverson and Others; Dobler v Halverson (By His Tutor Kenneth Halverson) [2007] NSWCA 335; 70 NSWLR 151
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 60 ALR 68
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Zanner v Zanner [2010] NSWCA 343Texts Cited: Category: Principal judgment Parties: David Michael Wilson
Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest)Representation - Counsel: Counsel:
A: Mr D Jackson QC / N J Owens
R: Mr M Einfeld / Mr J Gracie- Solicitors: Solicitors:
A: Stacks The Law Firm, Taree
R: Vardanega Roberts, SydneyFile number(s): CA 2008/289442 Decision Under Appeal - Court / Tribunal: - Before: McCallum J - Date of Decision: 10 December 2009 - Citation: David Michael Wilson v Nilepac Pty Limited trading as Vision Personal Training (Crows Nest) [2009] NSWSC - Court File Number(s) SC 2008/20312 Publication Restriction:
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant, a 40-year old barrister, in March 2008 decided to lose weight and get fit. For this purpose he contracted with the respondent for reward to undertake a programme developed specifically for him and which was to be implemented under the supervision of a personal trainer, Mr Alec Draffin, a 20 year old who had recently completed his qualifications as a Fitness Instructor and Fitness Trainer.
On 5 April 2008 the appellant sustained a right-sided prolapse of his L 4/5 intervertebral disc with associated nerve compression which he alleged was caused when he undertook two particular exercises at the behest of Mr Draffin at a gym operated by the respondent. The first exercise was a "horizontal leg press" while the second (referred to in the judgment as the 'medicine ball exercise') was an exercise which required the appellant to catch a heavy medicine ball whilst sitting up from a prostrate or supine position and then to rotate or twist from side to side with the medicine ball held at arms length. The appellant instituted proceedings against the respondent for breach of contract and its duty of care, which the respondent accepted was owed. The claim was brought against the respondent in its own right and as the employer of the personal trainer allocated to the appellant for whose negligence it accepted it was vicariously liable.
The primary judge found that there had been no breach of any contractual or tortious duty of care either directly by the respondent or by the personal trainer. The appellant appeals from the decision that there was no breach of duty on the part of Mr Draffin in requiring him to undertake the medicine ball exercise.
The issues for determination on appeal were:
(i) Whether the primary judge should have rejected Mr Tzarimas' evidence in relation to the reasonableness for Mr Draffin to introduce the medicine ball and side-to-side movement to the supine floor crunch;
(ii) Whether a reasonably competent professional fitness trainer in the position of Mr Draffin would have engaged the appellant in the medicine ball exercise for the purpose of s 5B(1)(c) of the Civil Liability Act 2002 (NSW);
(iii) Whether the Court correctly took into account the operation of gyms in relation to s 5B(2)(d) of the Civil Liability Act 2002 (NSW);
(iv) Whether the appellant proved that "but for" the appellant being required by Mr Draffin to undertake the medicine ball exercise, the appellant would not have sustained his injury; and
(v) Whether the medical reports tendered at the trial could be considered on the issue of liability and causation or only with respect to the latter.
The Court held, allowing the appeal:In relation to (i)
Tobias JA:
1. The primary judge's rejection of the whole of Mr Tzarimas' evidence was not based on any credibility finding but on an unreliability finding. Mr Tzarimas' evidence should be viewed in the context that it was unchallenged and that what the primary judge considered was a lack of independence and advocacy was the expression of opinions strongly held, and although his evidence exhibited a degree of arrogance and frustration, this was in no small measure due to the nature and extent of his cross-examination. The primary judge's grounds for rejecting the totality of Mr Tzarimas' evidence were flawed and she should have accepted that part which related to the medicine ball exercise being undertaken by the appellant at the instigation of Mr Draffin: [64]-[68].
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 referred to.
Whealy JA:
2. The primary judge's analysis and rejection of Mr Tzarimas' evidence as a reliable and credible expert was extremely comprehensive. There was confusion about the facts relating to the events at the gymnasium on the day of the injury; Mr Tzarimas' instructions from the appellant contained within his reports were at variance with the appellant's evidence on the same issues; the primary judge was unable to understand how Mr Tzarimas reached the conclusions he did leading to difficulties in examining those conclusions so as to test their validity; and the error Mr Tzarimas made in relation to the leg press exercise permeated to a very considerable degree the reliability of the later conclusions he reached; and none of the misapprehensions, when corrected, led to Mr Tzarimas toning down his opinions, or revising them in any substantial way indicating a lack of detachment and his assumption of the role of an advocate: [152]-[154].
3. The argument that the primary judge failed to consider certain opinions expressed by Mr Tzarimas regarding the precautions that had to be taken before the medicine ball exercise was undertaken by the appellant was a less than fair reading of the primary judge's reasons. A fair reading of those reasons showed that in general terms she rejected the expert for not adequately exposing and justifying the whole of his reasoning. There is no basis for restricting that finding to any particular segment of Mr Tzarimas' reasoning process. Tobias JA's observation that Mr Tzarimas' evidence revealed an expert witness who was "indeed an expert in his subject" seems apt to fall foul of the well-known constraints on the extent of permissible appellant intervention: [156].
4. In relation to Tobias JA's finding that the primary judge rejected the evidence of Mr Tzarimas upon the basis that he had not satisfied her that it was unreasonable, by reference to the normative standard of care in a personal training studio, to introduce the additional challenge of a medical ball and side-to-side movement, several comments need to be made. First, there were challenges to Mr Tzarimas' understanding of the actual nature of the exercises performed by the appellant and the contested issues associated with this understanding which had a capacity to impact upon the relevant opinions expressed by Mr Tzarimas. Second, the findings of the trial judge in relation to the rejection of Mr Tzarimas' evidence should not be disturbed for the reasons referred to by Tobias JA. Although it was true that the rejection of aspects of Mr Tzarimas' evidence was due to findings based on unreliability rather than credibility, that was to be expected in relation to the rejection of an expert witness. Where a trial judge has made a careful appraisal of the evidence of an expert, as had happened here, and has formed a reasoned and concluded opinion that the evidence cannot be relied upon, the principles in Fox v Percy are plainly called into play. This is especially so where, as here, the expert had given extensive oral evidence, and had been tested in cross-examination before the primary judge. It is not appropriate for the Court on appeal to rely on impressions taken from a reading of the transcript, that the witness "gave his evidence in a forthright and honest manner". Nor was it appropriate to speculate as to why the witness gave evidence in the way he did. In the present matter, there were no "incontrovertible facts or uncontested testimony" that could demonstrate that her Honour was wrong in taking the view that she did of Mr Tzarimas and his evidence: [162]-[167].
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Dearman v Dearman (1908) 7 CLR 549 applied.
Dobler v Halverson and Others; Dobler v Halverson (By His Tutor Kenneth Halverson) [2007] NSWCA 335; 70 NSWLR 151 referred to.
In relation to (ii)
Tobias JA, Beazley JA agreeing:
5. A reasonably competent professional fitness trainer in the position of Mr Draffin would not have engaged the appellant to undertake the medicine ball exercise. The precautions that such a reasonable trainer would have taken would have been to desist from requiring the appellant to undertake the exercise unless and until he had satisfied himself that the appellant was sufficiently advanced in terms of the strength of his abdominal muscles as to have the capacity to undertake the exercise without risk of harm to his lumbar spine: [125].
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 distinguished.
Whealy JA:
6. It may be accepted that Mr Draffin, though no doubt well meaning, was not an experienced trainer. His intention was no doubt to push the appellant reasonably hard, in an endeavour to strengthen his abdominal muscles more rapidly. Mr Draffin's evidence showed, however, that while he realised that the full import of the medicine ball exercise, with its additions, might be too much for an inexperienced client, he nonetheless encouraged the appellant to perform it: [170].
In relation to (iii)
Tobias JA, Beazley JA agreeing, Whealy JA not deciding:
7. The Civil Liability Act 2002 (NSW) makes no assumption that it might be reasonable to take fewer precautions against the risk of harm created by an activity of high social utility. Although it might be said that as a general proposition physical activity is of social utility, what s 5B(2)(d) required to be taken into consideration was the social utility of "the activity that creates the risk of harm". In this case that activity was the medicine ball exercise which of itself had no relevant social utility: [129].
8. The social utility of the relevant activity is but one factor which s 5B(2) requires to be taken into account in determining whether a reasonable person would have taken the necessary precautions against the relevant risk of harm. As the chapeau to the subsection makes clear, each of the four subparagraphs is to be considered "amongst other relevant things". There was nothing in the Ipp Report which recommended s 5B or in the text of the legislation which suggested that the standard of reasonable care required the taking of fewer precautions against an acknowledged risk of harm simply because the activity which created that risk had some social utility: [130].
In relation to (iv)
Tobias JA, Beazley & Whealy JJA agreeing:
9. The medical evidence contemplated two possible causes of the appellant's injury. The first was the leg press exercise and the second was the medicine ball exercise. The primary judge stated that she was not satisfied on the balance of probabilities that the leg press exercise was the cause of the appellant's injury. The fact that the primary judge expressed her finding in the negative did not mean that she regarded the leg press exercise as a possible cause of the injury but that she was not persuaded that that possibility reached the necessary level of probability. In any event, her Honour made positive findings that the cause of the appellant's injury was the medicine ball exercise and that but for that exercise the injury would not have been sustained: [138]-[141].
Adeels Palace Pty Ltd v Mourbarak [2009] HCA 48; (2009) 239 CLR 420; Zanner v Zanner [2010] NSWCA 343 considered.
In relation to (v)
Tobias JA, Beazley JA agreeing:
10. The case was conducted on the basis that the medical evidence was confined to the issue of causation. It was therefore not open to the primary judge to consider the opinions expressed by Drs Hopcroft and Conrad on the issue of the appropriate standard of care notwithstanding that their evidence was practically identical to that of Mr Tzarimas: [119]-[120].
Whealy JA:11. The appellant's argument that the evidence of the doctors could and should have been relied on by the primary judge to satisfy her that the medicine ball exercise was a dangerous exercise, requiring a finding of breach of duty, was not available to the appellant as that was not the manner in which the case was presented below. The plaintiff's case on breach of duty could only succeed having regard to the evidence of the plaintiff, Mr Tzarimas and Mr Draffin: [151].
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Coulton v Holcombe
(1986) 162 CLR 1; Metwally [No 2] v University of Wollongong (1985) 60 ALR 68 applied.
JUDGMENT
BEAZLEY JA : I have had the advantage of reading in draft the reasons of Tobias JA and Whealy JA in this matter. I agree with Tobias JA that the appeal should be allowed and the matter remitted to the trial judge for the assessment of damages.
The issue upon which Whealy JA departs from the reasoning of Tobias JA, namely whether the trial judge erred in rejecting the whole of the evidence of the expert witness, Mr Tzarimas. As both their Honours indicate, the appeal succeeds regardless whether the trial judge did err in rejecting that evidence. Both their Honours advance cogent reasons for their respective views. Given that the appeal succeeds, it is not necessary for me to express any view on the issue. I would only intimate that during the course of the appeal, it seemed to me that there were aspects of Mr Tzarimas' evidence that should have been accepted, notwithstanding her Honour's demeanor finding. The evidence to which I refer was his evidence relating to Mr Draffin's incorporation of the medicine ball exercise into the appellant's exercise program.
TOBIAS JA : On 5 April 2008 the appellant sustained a right-sided prolapse of his L4/5 intervertebral disc with associated nerve compression which he alleged was caused when he undertook two particular exercises at the behest of his personal trainer at a gym operated by the respondent at Crows Nest. He instituted proceedings in both tort and contract against the respondent alleging breach of its duty of care which the respondent accepted was owed. The claim was brought against the respondent in its own right and as the employer of the personal trainer allocated to the appellant for whose negligence, if any, it was vicariously liable.
On 30 April 2009 an order was made that the issue of liability be determined separately from, and in advance of, the question of damages.
McCallum J determined the issue of liability on 10 December 2009. Her Honour found in favour of the respondent upon the ground that there had been no breach of any contractual or tortious duty of care either directly by the respondent or by the personal trainer. She accordingly ordered that there be a verdict and judgment for the respondent and that the appellant pay the respondent's costs of the proceedings. The appellant appeals to this Court from those orders.
The background facts
The appellant is a barrister and was aged 40 as at April 2008. In March 2008 he decided to lose weight and get fit. For this purpose he contracted with the respondent for reward to undertake a programme developed specifically for him and which was to be implemented under the supervision of a personal trainer. In early March 2008 he underwent a pre-exercise screening and assessment conducted by Ms Jenni Webb (Ms Webb), a staff member of the respondent.
The appellant informed Ms Webb that he felt overweight and unfit. He stated that his goals were to lose weight and "tone" himself to a leaner physique.
Ms Webb's assessment of the appellant took about two hours. She asked him a series of questions and completed a number of forms on a computer. She asked him to perform a number of basic exercises such as sit-ups and push-ups. She provided him with a " nutrition strategy " (a diet) and formulated a training plan during the initial assessment. The programme was based on four sessions with a personal trainer each week extending over 12 weeks and consisting of three cardio sessions and one weights session per week.
The personal trainer allocated by the respondent to the appellant was Mr Alec Draffin. At the time he was 20 years old, having recently completed his qualifications as a Fitness Instructor and Fitness Trainer. He commenced employment with the respondent shortly after obtaining those qualifications. It was common ground that Mr Draffin was an inexperienced personal trainer - his evidence was that the appellant was one of his first ten clients.
As I have noted, the appellant's training programme was divided into three phases of four weeks each. Within each phase, and with each new phase, the programme contemplated gradual progression to more difficult exercises. According to the primary judge (at [10]), the four sessions per week consisted of three cardio sessions and one weights session. She observed that in his evidence the appellant had stated that he changed the programme because he wanted to do more of the weights sessions. It was submitted on the appeal that the second phase of the programme was brought forward or escalated by the appellant so as to include a weights programme. However, it was ultimately conceded that no evidence of the appellant could be identified to support either her Honour's finding or the submission based on it.
Nevertheless, although the appellant's attendance had been irregular, within three week and a half weeks of commencing training at the gym the respondent's records established that he had completed nine cardio sessions and five weights sessions. This was the total number of sessions contemplated at the outset but with more weight sessions than originally proposed by Ms Webb.
The respondent supplied standard forms on which the trainer was required to record the exercises carried out during each session. The form for weights sessions was referred to within the gym as a "red weights card". It was designed to record four weeks to a page and two sessions per week. Relevantly to the issues on the appeal, the red weights card in evidence set out the particular exercises that the appellant was to undertake. In the first phase referred to on the card as "Starter", some five different exercises were identified including " Leg Press" and "Supine Floor Holds". In the second phase, a further six exercises were identified of which the last was identified as Supine Floor Crunches.
This last-mentioned exercise is of particular relevance as an unprogrammed variation of it was the exercise ultimately found to have caused the appellant's injuries. That unprogrammed variation of the exercise departed from that which Ms Webb had devised for the appellant after assessing his fitness or lack thereof but which he was directed to undertake by Mr Draffin in order to accelerate the strength of the appellant's abs (shorthand in the fitness industry for abdominal muscles) and so help him to meet his fitness objective more quickly. It will be necessary to return in detail to this aspect of the matter below.
The primary judge found (at [15]) that it was clear from the appellant's evidence and the contemporaneous records of the respondent, that on Friday 4 April 2008 Mr Draffin started the appellant on the second phase of his programme a few days earlier than initially planned. She also accepted that the appellant's injury was sustained during a weights session conducted by Mr Draffin on Saturday 5 April 2008.
The nature of the appellant's case
The appellant's case before the primary judge was that the injury to his lumbar spine was caused by either or one both of two " dangerous " exercises performed during a weights session on 5 April 2008. The first was an exercise known as a " horizontal leg press ". The second was described in the pleadings as an exercise which required the appellant " to twist from side to side whilst sitting up from a prostrate position and catching a heavy medicine ball ".
The primary judge ultimately found (at [134]) that she was not satisfied of any breach of duty in relation to the leg press exercise. There is no challenge to that finding. Further, she held (at [166] and [167]) that she was not satisfied or persuaded on the balance of probabilities that the leg press exercise was a cause of the appellant's injury. Again, the last-mentioned finding was not challenged but it became relevant to the issue of causation with respect to what was referred to by the primary judge as the " medicine ball exercise " and to which I shall return when dealing with that issue.
The pleadings alleged some 15 contractual and tortious breaches of duty by the respondent itself such as devising an unsafe and unsuitable training programme; failing to train and/or supervise Mr Draffin, and failure to provide appropriate risk management with respect to the appellant's programme - allegations together with variations thereof which the primary judge rejected and in respect of which there is no challenge. The only challenge is to the primary judge's finding that there was no breach of duty on the part of Mr Draffin in requiring the appellant to undertake the medicine ball exercise.
An issue arose as to whether the appellant undertook a weights session on 5 April 2008. In this context, the primary judge at [18] of her reasons noted that at the outset of the session on that day, Mr Draffin asked the appellant how many drinks he had had since their last session, presumably because one of the appellant's training goals was to confine himself to 14 standard alcoholic drinks per week. The appellant told Mr Draffin that he had drunk more than he should have the previous night and said " so go easy on me ".
According to the appellant, Mr Draffin responded " there is nothing better for a hangover than exercise. We'll have to smash you ". That term is one used within the fitness industry to describe an intense level of exercise, meaning to give someone a " pretty tough " workout. Mr Draffin denied that he used that expression but the primary judge found (at [20]) that he did but that the remark was made in a jovial sense. She did not accept that Mr Draffin had pushed the appellant any harder than he otherwise might have because he had drunk more than he should have the night before. There is no challenge to that finding but equally it would appear that although the appellant denied he was hung-over, nonetheless he did not deny that he requested Mr Draffin to " go easy " on him.
As to the issue as to whether the appellant undertook a weights session as distinct from a cardio session on 5 April, the appellant insisted that he had, but the incomplete entries on his red weights card led Mr Draffin to conclude that the appellant had not. Notwithstanding extensive cross-examination on the subject, Mr Draffin maintained that the appellant did not do weights that day. The primary judge rejected Mr Draffin's evidence on that issue.
Her Honour said at [26] that she was satisfied that the appellant had undertaken at least part of a weights session on 5 April 2008. In this respect she had no difficulty in accepting the appellant as a truthful witness and that his recollection as to this aspect of his evidence was reliable. In particular, her Honour found at [29] that the appellant's recollection of doing an abdominal exercise with a medicine ball on that day was correct. That finding is of some importance as Mr Draffin denied that a medicine ball was used on that day although, as will appear, his evidence as to its previous use was inconsistent.
The witnesses called at the trial
Both the appellant and Mr Draffin gave evidence. Each was extensively cross-examined. Apart from the evidence of a number of specialised medical practitioners, the only expert evidence called on the issue of liability was a Mr Christopher Tzarimas, an Accredited Exercise Physiologist and, since 2005, Director of the Lifestyle Clinic in the Faculty of Medicine at the University of New South Wales. His expertise in the field of fitness physiology was not questioned. He holds, amongst other qualifications, a Certificate IV as a Dual Accredited Personal Fitness Trainer and Specialist Fitness Trainer. His areas of expertise and special interests included, according to his Curriculum Vitae, "Fitness Industry Standards". He had had much to do with Fitness Australia as well as Fitness NSW Personal Trainers Council as well as Fitness NSW Training and Registration Council.
In cross-examination Mr Tzarimas stated that he knew the fitness industry well and was aware in general of the qualifications of those who operated commercial gyms in the Sydney area and the lower North Shore. He stated that he had expertise not only as a personal trainer but also an intimate knowledge of the fitness industry and its standards. According to his CV (at Blue 118) and his evidence (at Black 161Q-X) he was the owner/manager of his own gym at Ultimo from 1996 or 1997 until 2004. His duties included health assessments and exercise consultations as well as management of staff. It was not suggested to him that standards had changed between 2004 and 2008.
I mention Mr Tzarimas' expertise and background because he was subjected to a lengthy and at times unnecessarily aggressive cross-examination in respect of which her Honour was forced to intervene. He was challenged as to his knowledge of the practices and standards of commercial gyms, it being submitted that Mr Tzarimas was really only an academic so that by not calling any evidence from a hands-on operator of a gym as at 2008, the appellant had failed to establish what was a reasonable standard of care to be adopted by such a gym against which Mr Draffin's conduct in requiring the appellant to undertake the medicine ball exercise could be measured.
The respondent called no evidence on this issue. It did not call the proprietor of the gym, its manager or Ms Webb - all of whom were apparently available to give evidence. The appellant sought to persuade her Honour that a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference should be drawn as a consequence of those potential witnesses not being called by the respondent. It was submitted that it could be inferred that those witnesses would not have corroborated Mr Draffin's evidence relating to the operations and practices of the respondent's gym. Her Honour (at [81]) remarked that the principal factual context appeared to be the way in which the exercises were undertaken which only Mr Draffin could address. She was therefore not satisfied that any adverse inference should be drawn against the respondent on account of its decision not to call any of the witnesses referred to.
The primary judge also declined (at [84]) to draw any adverse inference from the fact that the respondent did not call any expert evidence to establish the appropriate " normative " standard of care applicable to a personal trainer such as Mr Draffin as the onus of proving the relevant standard was on the appellant. As a consequence, the only source of evidence as to the appropriate standard of care was Mr Tzarimas.
I have some doubt as to whether her Honour was correct in her findings at [84] at least so far as it related to Ms Webb who devised the appellant's programme of exercises after carefully assessing his condition of fitness. However, there is no challenge by the appellant to those findings so that it need not be further considered.
The primary judge's findings as to the credit of the appellant and Mr Draffin
In relation to whether part of a weights session took place on 5 April, the primary judge had no difficulty in accepting the appellant as a truthful and reliable witness. In relation to Mr Draffin, the primary judge rejected his evidence on this issue, as she found (at [25]) that his evidence was derived from reconstruction: although she did not mean to suggest that he was in any way untruthful. She formed the clear impression that Mr Draffin was endeavouring to give an honest account of events.
With respect to the medicine ball exercise, the primary judge (at [55]) concluded that Mr Draffin presented as an earnest witness who expressed himself in simple terms without guile. In contrast, at [58], she doubted the reliability of the appellant's evidence as to whether the appellant had been asked to do a sit-up rather than a crunch with respect to the medicine ball exercise. Thus at [65] her Honour said that although she accepted without hesitation that the appellant was an honest witness, she regarded his attention to detail in matters of exercise as poor at the time of the events in question and, in her view, that had impaired his ability to give a reliable account. She therefore accepted (at [66]) Mr Draffin's evidence that the exercise he required the appellant to perform on 5 April was a crunch with a medicine ball in which he was required to move from side to side at the top of the crunch.
Sit-up or crunch?
The issue of whether the medicine ball exercise was a sit-up or a crunch seemed to assume a deal of significance in the primary judge's reasons notwithstanding that the respondent appeared to have conducted its case at all times upon the basis that Mr Draffin had required the appellant to perform a sit-up exercise rather than a crunch exercise. The difference between the two was described in the evidence of Mr Tzarimas. In each case the person undergoing the exercise commences in a supine position with their back flat on the floor and knees bent. A sit-up involves flexion of the hip joint so that the lumbar vertebrae are no longer in contact with the floor and the torso is off the ground. The effect of this is that lower back is no longer held in a neutral or straight position but is bent, thus placing some degree of pressure upon the lumbar spine. In other words, performing a sit-up with full flexion of the spine produces low back compression as the lumbar spine then operates as a fulcrum holding the weight of the torso. A crunch involves raising the upper body in a straight line to a position approximately 30 from the horizontal as distinct from 90 for a sit-up. As the lumbar spine is kept straight and not bent, there is less compression on the lower lumbar vertebrae. The crunch is solely focussed on lumbar flexion; the hips are not flexed so there that is no movement in the hip joint.
In his evidence, the appellant said that he raised his upper body to a point that, by reference to the photographs in Exhibit M (at Blue 8-9), would appear to indicate that he was at 30 -40 to the horizontal. The respondent asserted that the difference between the two exercises was merely semantic but this notwithstanding, a deal of time was spent on the issue and, as I have indicated, the primary judge ultimately found that the exercise in question was a crunch with a medicine ball with the appellant required to move from side to side at the top of the crunch. Be it a sit-up or a crunch, it seems to me that the critical factor was that the appellant's upper body was, in effect, suspended. Moreover, it was not the fact that he was being requested to do a sit-up or crunch which, on the medical evidence as well as that of Mr Tzarimas, was the cause of the injury. The injury was caused by Mr Draffin throwing a medicine ball weighing 5.4kg to the appellant which he was then required to hold with his arms outstretched and also to move or rotate from side to side in a twisting movement and, according to the appellant, to touch the floor with the ball and then return it to Mr Draffin.
Although the appellant submitted that the primary judge's finding that the exercise was a crunch rather than a sit-up should be overturned, it was also contended that even if it was a crunch, the appellant was still entitled to succeed. This was particularly so given that the only critical aspect upon which the appellant's evidence was not accepted, was whether the exercise involved " sit-ups " or " crunches ".
In my view one of the reasons why the question of the appellant being requested to sit-ups or crunches is only of academic interest, is that on the issue of causation the primary judge found (at [173]) that she was satisfied
"to a point of actual persuasion that the pressure on the lumbar spine when the medicine ball was caught, combined with the flexion of the spine created by the twisting part of the exercise, probably enabled the disc to protrude in the manner described by Dr Hopcroft."
The evidence of Dr Hopcroft (at Black 199) to which the primary judge referred arose from a question put to him by her Honour to the effect that she understood his evidence to be that he regarded the relevant exercise as one which was highly dangerous and imposed a risk to the integrity of the lumbar spine. In this respect Dr Hopcroft had described the exercise in the following terms (at Blue 186 D-G):
"Also in the session on 5 April, the patient did supine floor crunches. Those crunches involved the patient lying on his back on the floor with his feet flat on the floor and knees elevated. As he sat up from the floor, the patient would then be thrown a medicine ball from the Trainer, Mr Draffin, (who incidentally had his feet placed on the patient's shoes a stabilising mechanism). The patient would then sit up with the medicine ball at chest level and twist from left to right with each repetition. With each twist the patient would be required to touch ball on the floor on each side."
The primary judge then referred to the impact of the medicine ball both as a consequence of its momentum and its weight to which Dr Hopcroft responded as follows:
"The classic law of physics. So we don't know which was one thrown [i.e. the 2 kilogram ball or the 5.4 kilogram ball]. We can assume that the momentum was significantly higher than 4 pounds per metre. And what happens on impact with the patient flexed like this, is that (indicating) all the core musculature and the abdominal muscles brace on impact. So at that moment the pressure is suddenly increasing on the front of the disc, the soft mucoid centre of the disc can find its way right through to the posterior part of the disc, and then you have the evolution of disc protrusion. That seemed to be the confusion to the Court. And that is that most disc protrusions don't suddenly occur and are static and that's what you see in the X-ray 6 months later. It's an evolving process. It can start as a disc bulge and go into a focal protrusion, and that can happen at any speed."
The medicine ball exercise
The appellant's evidence was that he was aware that there was an exercise described (on the red weights card) as a "Supine Floor Crunch". He said that it required him to lie on the floor and lift the upper part of his body off the floor approximately six inches in order to develop stomach strength. However, he did not believe that he did floor crunches on 5 April. On that day his evidence (at Black 44-45) was that Mr Draffin pulled over a mat, placed it on the floor and told him to lie on the floor and bend his knees, which he did. Mr Draffin then went over to a rack and picked up a medicine ball, returned to where the appellant was lying and stood on his shoes and told him to do sits-ups. Mr Draffin then explained that during the sit-ups he would throw the medicine ball to the appellant who was to then twist from side to side and touch the floor with the ball. The following exchange then took place:
"Q. This is what, after you caught [the medicine ball]?
A. After I caught it, touched the floor with the ball before throwing the ball back to him once I reached the upright position and then I would recline and that exercise would be repeated.
Q. Up until that time at the gymnasium, had you ever done any full sit ups at all?
A. Not that I recall.
Q. Had a medicine ball every appeared in any of your exercises?
A. No I hadn't - no."
Shortly after giving this evidence, the appellant was asked when he first felt the weight of the ball. He responded that it was when the ball was thrown to him and he was about a third of the way off the floor. He said that Mr Draffin held the ball at about chest height then, with his palms facing outwards and extending his arms, threw or pushed the ball at the appellant. The appellant then caught the ball and twisted to each side with it, attempting to touch the floor on both sides. He said that he found it quite difficult to touch the floor. He then threw the ball back to Mr Draffin when he reached the full 90 sit-up position.
In cross-examination the appellant was referred to the photographs in Exhibit M and in particular to what was previously MFI 2 at Blue 9, stating that when he caught the ball he was at some point between the positions as shown on the photographs in that exhibit. He was then shown MFI3 (at Blue 10) after which the following exchange occurred (at Black 85-86):
" Q. Well, did you have the ball in outstretched arms in the way Mr Draffin is demonstrating or in some other way?
A. Oh no. In that fashion.
Q. Did you, first of all, twist to one side?
A. Yes.
Q. Then to the other?
A. Correct.
Q. It's correct, isn't it, that you have no recollection of that ball touching the carpet whilst you were in the position that you have just described?
A. I recall the intention of the exercise as directed was to touch the floor, but I also recall that I was unable to do it more than a couple of times.
Q. But I want to be precise about this, is your recollection that at any time the ball actually made contact with the carpet?
A. I, I believe it did.
Q. You could be entirely wrong about that, you would concede, would you not?
A. Oh no. Look, I'm I'm reasonably certain that on at least several occasions it touched the floor. However, as I was beginning to fail in the exercise the twisting became less vigorous.
Q. There was a set of ten or 12 so far as you could remember?
A. Correct.
Q. Did you manage to touch the ball to the ground early in those set of ten or 12, halfway through, or at the end?
A. Oh, only at the beginning.
Q. Mr Wilson, I may be mistaken. My recollection is that you evidence before lunch is you didn't finish a full set of 12?
A. No, I didn't. I think I, I think I said, your Honour, that I didn't, could not do any more than one set. I can't be precise, but I would be surprised if it was ten or 12. It could have been less." (Emphasis added)
It needs to be emphasised that the above answers (and particularly that which I have emphasised) were elicited in cross-examination.
The appellant said that the two photographs at Blue 10 best represented the exercise he did on 5 April. It was then put to him that those photographs not only best depicted the exercise but did so accurately. The respondent replied (at Black 86W):
"Well, subject to the qualification I mentioned earlier as to twisting further to the floor, I agree."
Of particular significance in my view was the primary judge's finding at [45] that the exercise prescribed in the appellant's training plan did not include the medicine ball exercise. Each weights session, she said, included an abdominal exercise but not with a medicine ball or a twist.
I have already referred to the difference, explained by Mr Tzarimas in his evidence, between a sit-up and a crunch. The primary judge summarised that evidence in the following terms (at [46]):
"Mr Tzarimas explained, and demonstrated (at T137) that a stomach crunch involves lifting the torso off the floor only so far as is permitted by flexion of the lumbar spine, with no flexion of the hip joint. In that exercise, the lumbar spine curves but does not act as a fulcrum for the lifting of the torso. A sit-up is a different exercise, involving flexion of the hip joint so that the torso is lifted higher off the floor. In that exercise, the lumbar spine acts as a fulcrum, holding the weight of the torso, and so comes under more strain."
At [47] her Honour stated that she was satisfied that Mr Draffin had required the appellant to perform an abdominal exercise using a medicine ball on 5 April 2008. This was notwithstanding the fact that Mr Draffin in his evidence at one point denied that this was so. His recollection, such as it was, was that at the very least he was not sure when he asked the appellant to undertake the Supine Floor Crunch, nor as to whether he used a medicine ball or not.
Mr Draffin acknowledged that at some stage he had required the appellant to do sit-ups but because the appellant found them to be too challenging, he went back to crunches. The problem was that he did not know on which day that occurred. It was put to him that it was after he had received a letter from a Mr La Scala, a physiotherapist consulted by the appellant, and dated 7 April 2008 in which it was suggested that the appellant, having presented with right side sciatica, should avoid any activity that placed him in lumbar flexion, especially with his leg outstretched in hip flexion.
Mr Draffin's evidence (at Black 332W) was that sit-ups only occurred on one occasion but he was not sure whether he used the medicine ball or not. That does not sit well with his evidence (at Black 325V-X) that he could not remember whether he had the appellant perform the exercise with the medicine ball on only one occasion. He accepted that he had not recorded the use of a medicine ball on any of the documentation he was required to complete. The following exchange then relevantly occurred (at Black 325Y-326M):
"Q. Bearing in mind what you have said about the red documents setting out the exercises to be undertaken, what Vision's own directions to you were, that you have agreed were to follow the programme exactly, where did you come up with this medicine ball exercise from ?
A. Well, when I was at the AIF, we had almost half a day going through all the different types of exercises you can do and how you can make the easier for clients and harder for clients, and one of those, although it is not written down, was doing crunches with a weight, and I just thought doing crunches holding a medicine ball is a lot easier than holding a dumbbell. So it was just to - it's the next logical step up, in terms of making the exercise a bit more challenging.
...
Q. So, when you say the next step up, do you mean the next sep up from a supine floor crunch with your hands on your chest?
A. No. Well, crunches and sit ups are two different exercises, and we were using the medicine ball doing sit ups.
Q. Do you agree with me that sit ups don't appear in any of the documents that we have referred to in the last few moments?
A. Yes.
Q. Either on the Vision documents, or the AIS training documents, or the Vision manual, or the DVDs?
A. Yes."
Earlier in his evidence (at Black 288) when referred to the photographs at Blue 8-10, Mr Draffin agreed that he had required the appellant to do the exercise seen in those photographs using the medicine ball and, to the best of his recollection, the exercise was performed at least two or three times. Further down at Black 288T-Y he said the exercises involving the medicine ball were only floor crunches and that the appellant was doing them with the ball in his hands, moving it from left to right. At Black 289P-S Mr Draffin denied that he threw the ball to the appellant whilst he was doing those exercises. He maintained that the appellant held the ball continuously. The following exchange then occurred:
"Q. Did you observe at any time during the crunch exercises that ball touching the carpeted floor?
A. Yes.
Q. Ho many times did you observe that happen?
A. Two or three times.
Q. Was that something involving a twisting motion?
A. Yes.
Q. Did that twisting motion involve Mr Wilson?
A. Yes.
Q. When, in terms of your time with him, just to give it a point in time, did you see that happen?
A. It was during the crunches when it happened."
When it was suggested to him that he had previously accepted that the appellant was doing twists with the ball, Mr Draffin responded (at Black 350):
"I wouldn't call them twists. What he was doing was he would have the ball and he would crunch up to the left and he would crunch up to the right as opposed to twisting the body."
It was then put to him that he had said in chief that the appellant used the ball in a way where he twisted and touched the carpet on either side. Mr Draffin responded that the whole idea of the exercise was not to touch the carpet and that he had not intended the appellant to touch the carpet whilst doing the 30 off the floor supine crunch. Although Mr Draffin accepted that the appellant did touch the carpet, he maintained that he would have corrected him and told him not to do so as " we are looking for the ball not to touch the ground ". It was never suggested to the appellant in cross-examination that Mr Draffin corrected the medicine ball exercise when the appellant undertook it incorrectly by touching the floor with the ball.
Following the primary judge's finding at [47] (see [42] above), her Honour considered that that three factual issues remained to be determined: whether the appellant was required to do a sit-up or a crunch - the primary judge finding the latter; whether the medicine ball was thrown to the appellant whilst he did the exercise; and the weight of the medicine ball used.
The primary judge found (at [67]) that contrary to Mr Draffin's evidence, the ball was thrown by him to the appellant throughout the exercise and (at [68]) that the medicine ball in question weighed 5.4kgs.
Although the primary judge's finding (at [66]) was that the appellant was required to move the medicine ball from side to side at the top of the crunch, notwithstanding the appellant's evidence to which I have referred at [38] above, she made no specific finding as to whether he was required to twist with the medicine ball in his outstretched arms and touch the ball to the floor. Given her finding on the issue of causation, namely, that the injury was caused by the pressure on the lumbar spine when the medicine ball was caught combined with the flexion of the spine created by the twisting part of the exercise, it is apparent that she accepted the appellant's evidence that he was required to proceed with a twisting or rotational movement with the medicine ball in his hands irrespective of whether he was able or required to touch the floor with it. At the end of the day it is probable that a finding on this last-mentioned issue was not required given the medical evidence as to the cause of the appellant's prolapsed disc, which her Honour accepted.
The evidence of Mr Tzarimas
The evidence upon which the appellant relied at trial and which it submitted the primary judge should have accepted, was that of Mr Tzarimas at paragraph 62-70 of his report of 27 November 2008 (Exhibit C). Paragraphs 63-66 were concerned with the effect of a sit-up on the lumbar spine. Mr Tzarimas opined that performing a sit-up caused spine-loading conditions that greatly elevated the risk of injury due to the fact that each sit-up produced low back compression. At paragraph 65 he quoted from a popular text for fitness industry professionals that stated that lumbar discs are more easily injured during a combination of flexion and rotation and should be avoided when prescribing exercises to " susceptible clients ".
At paragraphs 67-69 Mr Tzarimas said:
"67. When an individual bends forward and twists to one side, a certain amount of torque would be generated on the lumbar spine. Such awkward testing movements are closely related to disc prolapse and back pain.
68. Generating high rotational torque or high torque (as when moving a medicine ball with outstretched arms from side to side) while the spine is twisted is an activity that poses a very high injury-risk to the L4-L5 joint. Furthermore, the additional compressive burden on the spine during trunk flexion is substantial for even a low amount of axial torque production.
69. A high rotational torque coupled with the additional compression on the lumbar spine performed during this exercise would be (sic) place it amongst the highest risk movements for acute injury to the lower back."
He concluded that the medicine ball exercise was, for the reasons indicated, an inappropriate exercise for a person of the appellant's age and physical condition. Furthermore, it was not referred to at all in the National Fitness Industry Training Package which set out the requirements for attaining Certificate III in Fitness and Certificate IV in Fitness being the qualifications which Mr Draffin had achieved.
As I have observed, Mr Tzarimas was exposed to a lengthy and at times aggressive cross-examination intended to attack his credit. Mr Tzarimas' thesis was that the most significant factor which rendered the medicine ball exercise inappropriate for the appellant to undertake was the requirement that, with medicine ball in hand, he was to twist to the end of his range of rotation and to place the ball in contact with the floor. It was the degree of rotation that was the significant factor.
Mr Tzarimas accepted (at Black 215W-217O) that many movements in the fitness industry involved rotating the spine and that in that sense spinal rotation could be described as conventional in a gym. But what the appellant was required to do was not conventional. It involved an extreme twist with the added stress of catching and holding a 5.4kg medicine ball in outstretched arms. Mr Tzarimas accepted that such an exercise was performed in gyms in Sydney even though not recommended within the fitness industry, but he later made it plain that it was an exercise that ought to be, and was, confined to persons who exhibited an athlete's fitness.
So much was, in effect, also accepted by Mr Draffin in the following critical exchange (at Black 368):
"Q. I want to suggest to you that you did throw a medicine ball to Mr Wilson at some stage of your exercise programme with him?
A. No, I didn't throw it at him.
Q. You do throw medicine balls at clients, don't you?
A. I pass it to clients, and as a challenge to my really advanced clients, that I know can handle it.
Q. So, if the client is really advanced, you throw them the ball when they are doing a crunch or when they are standing or what?
A. There would be the top part of the crunch. I would not throw when they were halfway down. I would throw when they would catch up at the top. Then they do the crunch. They, they come back up and I throw it again.
Q. So, you do have exercises with some of your clients that involves you throwing a ball at them whilst they are doing a crunch, is that right?
A. I have done that, yes." (Emphasis added)
Such a rotational manoeuvre or "axial torque" as Mr Tzarimas labelled it (at Black 135F-O) posed a major impact to the compression of the lumbar vertebra, which placed it at the risk of disc herniation. Twisting rotation and lumbar flexion, he opined, was a dangerous combination especially when there was the added stress caused by the impact of a medicine ball being thrown and caught. As the appellant submitted, this evidence was consistent with the appellant's medical evidence which was unchallenged (except by Dr Matheson whose opinion on causation was not accepted).
When pressed on what was conventional, the following exchange occurred (at Black 217) between her Honour and the witness:
"Q. You are now addressing the training the trainers have. What basis do you have for saying that exercise isn't regularly - I understood you to mean not conventional in the sense that nobody does it in gyms in Sydney at the moment.
A. It's performed but it's not a recommendation within the fitness industry. There is no mention of the sit-up in the National Fitness Industry Training Package. The most challenging abdominal exercise that is mentioned in the NFITP is the crunch.
Q. So you're referring to what is recommended in the training?
A. That is correct."
It was suggested to Mr Tzarimas that the standards he asserted were those of a university qualified academic holding, as he did, a Masters degree rather than a realistic person who might run a gym in the CBD or lower North Shore of Sydney. His response was (at Black 268 O-U):
"A. No they are not, they are the standards that are defined by the National Fitness Institute Training Package in various modules that pass occupational health and safety risk analysis, injury prevention and so forth that are expected to be implemented in the industry.
Q. To the extent you have mentioned those umbrella bodies, you are not seized or of sufficient knowledge to know whether or not Vision Gym complied with those standards, are you?
A. I have the expertise to know what the industry standards are, the experience and the background for the fitness industry and given the information I have been provided, determined against that background as to whether those standards are appropriate."
It should be remembered in this context that Mr Tzarimas operated and managed his own gym at Ultimo from 1996/1997 to 2004: see [ 23 ] above.
Again, in re-examination (at Black 272) Mr Tzarimas was asked whether the use of a medicine ball being thrown to someone doing a sit-up was an " innovative use " of the ball. He responded that it was not considered a conventional exercise by fitness industry standards. Given the exchange referred to at [57] above and that which is recorded in the following paragraph, it is apparent that the witness was using the word " conventional " in the sense of an exercise used in the fitness industry (meaning thereby fitness studios or gyms such as that of the respondent) for ordinary clients such as the appellant as distinct from those used for specific sports athletes.
The further exchange to which I refer in the preceding paragraph took place between the witness and her Honour in the following terms:
"HER HONOUR
Q. Is it your opinion that that exercise is not appropriate for any person or are you only giving your opinion in relation to the plaintiff?
A. Certainly not, there is a sport training package which provides qualification for officials and it includes coaches and in sports specific circumstances it is an exercise that may be appropriate.
Q. Depending on the preparation of a particular person ?
A. Correct your Honour .
Q. You don't have to go any further." (Emphasis added)
The primary judge did not accept Mr Tzarimas' evidence although she accepted (at [84]) that it was the only source of evidence as to the appropriate normative standard of care to be applied. In this respect the appellant acknowledged that that standard was one of a reasonable personal trainer and a reasonable personal training gym. The primary judge agreed that that was the correct standard to apply at [87], [103] and [126] of her reasons. In particular the critical question was whether Mr Draffin failed to act in accordance with the legal standard of care whether due to his inexperience or otherwise: see Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 at [72].
The primary judge rejected Mr Tzarimas' evidence on a number of grounds. First, at [121] she stated that the principal difficulty she had with his opinion with respect to the importance of performing adequate warm-up activities before a weights session was that he failed to expose the reasoning by which he reached that conclusion. However, at the end of the day this was not the fundamental basis upon which Mr Tzarimas expressed his view as to the inappropriateness of the medicine ball exercise that Mr Draffin had required the appellant to undertake. Rather, it was because that particular exercise was not one recommended within the fitness industry as an appropriate conventional fitness training exercise. Significantly, the most challenging abdominal exercise referred to in the National Fitness Industry Training Package was a floor crunch but not, as I understand his evidence, a crunch associated with the twisting or rotation required of the appellant by Mr Draffin with the added weight of a 5.4kg medicine ball. That this was so was confirmed by the respondent's own red weights card which, for the week in question, only identified the Supine Floor Crunch as the appropriate exercise for the appellant at that stage of his training programme.
Second, at [122] the primary judge observed that she had reservations regarding Mr Tzarimas' evidence in that she was not satisfied that he brought a completely independent mind to the task. Rather, he presented as having assumed the role of the appellant's advocate in the case. Her Honour then referred to Mr Tzarimas' oral evidence at Black 162W-163C in which he stated that after discussion with the appellant's counsel he had volunteered to speak to the manufacturer of the leg press machine for the purpose of preparing his third report and which related to the adjustments that could be made to the machine to accommodate a person such as the appellant. With respect, this example seems to be a thin reed upon which to justify the rejection of the whole of Mr Tzarimas' evidence on every issue (of which there were many).
It is important to note that her Honour's rejection of parts of the appellant's evidence was not based on any credibility finding but rather on an unreliability finding: cf Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28]-[29]. In particular, her rejection of Mr Tzarimas' evidence because she was not satisfied that he brought a completely independent mind to his task but presented as having assumed the role of the appellant's advocate and had thus approached his task looking for fault in the respondent's studio according to his exacting standards was not, in my view, a credibility finding but more a reliability finding. But Mr Tzarimas' evidence on the issue under discussion must, in my opinion, be viewed in the context first, that it was unchallenged; second, that what her Honour considered was advocacy was, I respectfully suggest, the expression of opinions strongly held; and third, although some of his evidence exhibited a degree of arrogance (such as the unfortunate response to her Honour's question at Black 216Q-R recorded in her reasons at [141]), and at times a degree of frustration on his part, this was in no small measure due to the nature and extent of his cross-examination which her Honour was forced to interrupt on occasions to ask where the cross-examiner was headed.
In his decision, at 139-140, McHugh J referred to "a valuable passage" in the judgment of Isaacs J in Dearman v Dearman (1908) 7 CLR 549:-
So that the position is clearly laid down by the very highest authority that the primary duty, and in fact the whole duty, of every Court of Appeal is to give the judgment which in its opinion ought to have been given in the first instance. But there are natural limitations, that is to say, in some cases, where the evidence below is solely upon written documents, if for instance it is upon affidavit as it used to be in the old Court of Chancery, the appellate Court is in as good a position as the primary Judge to say what ought to have been the decision; but where viva voce evidence is taken there is a large amount of material upon which the primary Judge acts that is altogether outside the reach of the appellate tribunal . The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal. So far as their judgment may depend upon these circumstances they are not in a position to reverse the conclusion which has been arrived at by the primary tribunal. Now it may be that in some cases the effect of what I call the unrecorded material is very small, indeed insignificant, and utterly outweighed by other circumstances. It may be, on the other hand, that it guides, and necessarily guides, the tribunal to the proper conclusion. If that is the case, as I have said before , the Court of Appeal cannot say that the conclusion is wrong without disregarding the material which it knows must have been existent before the tribunal below , and is necessary to a just conclusion."
It is true that the rejection of aspects of the appellant's case was in the nature of a finding based on unreliability rather than credibility, but it was nevertheless based on demeanour. It is also true that the rejection of Mr Tzarimas' evidence was more in the nature of a finding based on unreliability rather than on credibility. But that is to be expected in relation to the rejection of an expert witness. Such a witness does not attest to the facts of a case, as does a participant, bystander or victim, in, for example, accident litigation. Where a trial judge has made a careful appraisal of the evidence of an expert, as had happened here, and forms a reasoned and concluded opinion that the evidence cannot be relied upon, the principles in Fox v Percy are plainly called into play. This is especially so where, as here, the expert has given extensive oral evidence, and has been tested in cross-examination before the primary judge. In particular, it is not appropriate, in my view, for this court on appeal to rely on its impressions, taken from a reading of the transcript, that the witness "gave his evidence in a forthright and honest manner". Nor is it appropriate to speculate as to why the witness gave evidence in the way he did. This court has not had the benefit of seeing and hearing the evidence of the witness and must, within the confines of the reasoning in Fox v Percy , yield to the findings of the trial judge, based as they were on a close appraisal of the witness. These principles apply to the evidence of an expert in the same way they apply to the evidence of a lay person: Dobler v Halverson and Others; Dobler v Halverson (By His Tutor Kenneth Halverson ) [2007] NSWCA 335; 70 NSWLR 151 per Giles JA at [49] - [52] (with whom Ipp and Basten JJA agreed).
Indeed, it is often the case that an expert witness who has assumed the role of an advocate, and who has apparently stepped outside the confines of his proper role in the litigation, may well be inclined to give his evidence "in a forthright manner". Whether he is honestly and reliably doing so will then, ordinarily, be a matter for the trial judge. In the present matter, there were no "incontrovertible facts or uncontested testimony" that could demonstrate that her Honour was wrong in taking the view that she did of Mr Tzarimas and his evidence.
Insofar as Mr Tzarimas had conducted a gymnasium himself (until 2004), this was not a matter he relied on in any of his reports or in his evidence-in-chief to justify his opinions. It was brought out in cross-examination to show he had no (or very little) contemporary understanding of the usual practices in CBD training centres in relation to the exercises he criticised.
The critical evidence that remained for consideration at trial on the breach issue was the evidence of Mr Draffin. Tobias JA has conducted a thorough and compelling analysis of the evidence of Mr Draffin. Following upon this examination, Tobias JA concluded that the appellant had established that a reasonably competent professional fitness trainer in the position of Mr Draffin would not have engaged the appellant in the medicine ball exercise. Tobias JA also concluded that precautions that such a reasonable personal trainer might have taken would have been to desist from requiring the appellant to undertake the medicine ball exercise, unless and until he had satisfied himself that the appellant was sufficiently advanced in terms of the strength of his abdominal muscles as to have the capacity to undertake the exercise without risk of harm to his back. These findings, if accepted, must flow through vicariously as against the respondent.
Upon careful consideration of Tobias JA's analysis and reasoning, I have concluded that I should agree with his conclusions in relation to Mr Draffin's evidence. It may be accepted that Mr Draffin, though no doubt well meaning, was not an experienced trainer. His intention was no doubt to push the appellant reasonably hard, in an endeavour to strengthen his abdominal muscles more rapidly. Mr Draffin's evidence shows, however, that while he realised that the full import of the medicine ball exercise, with its additions, might be too much for an inexperienced client, he nonetheless encouraged the appellant to perform it. On the findings made by the primary judge, the exercise was carried out with the heavier ball, and it was thrown to the appellant to catch. He was required to catch the ball with his spine off the ground, and then rotate from side-to-side, holding the ball as he did so. The respondent argued that the setting of this exercise was in response to a general request from the appellant that he be worked hard during his training programme. There is, however, no evidence to suggest that the appellant made that specific request in relation to this particular exercise. Mr Draffin should have realised that more care should have been taken, and caution exercised, in acclimatising the appellant to the basic medicine ball exercise before considering whether additions should be made to it. There is no doubt, as the primary judge found, the medicine ball exercise, with its variations, was the cause of the injury.
It must follow that the appellant is entitled to succeed on this basis and, for that reason, but no other, I am prepared to agree with the orders proposed by his Honour. For my part, I would prefer to express no opinion on the matters raised by Tobias JA in relation to the applicability and interpretation of s 5B(2)(d) of the Civil Liability Act 2002 . That matter was not fully argued before us and, in any event, the particular matters tentatively reflected upon by the primary judge do not appear to have played any major part in her ultimate reasoning and conclusion. In my opinion, the issue is a difficult one, and should be left for resolution in an appropriate case, where full argument and attention is given to the question.
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