David Michael Wilson v Nilepac Pty Limited trading as Vision Personal Training (Crows Nest)

HER HONOUR : David Wilson is a barrister. At the age of forty, Mr Wilson made a decision to sign up for a fitness programme with a personal trainer at a local gym. His enthusiasm for vigorous exercise until that point had been limited. His decision was prompted by a combination of medical advice, the fact that his partner had commenced a similar programme and a desire to get fit and lose weight.

Mr Wilson had been swimming fairly regularly for three months but had never trained in a gym before. He had joined a Fitness First centre to undertake a programme of hydrotherapy following a knee operation in September 2007, but had not used the facilities there other than the pool.

In March 2008, Mr Wilson signed up for a combined programme of “cardio” and weights sessions with a personal trainer at Vision Personal Training in Crows Nest, a franchise owned and operated by the defendant in these proceedings. Four weeks into that programme, Mr Wilson suffered a lower back injury (a prolapsed disc). He believes the injury occurred in the gym and attributes it to the negligence of the personal trainer assigned to him and the defendant company (Vision).

Mr Wilson claims damages against Vision for breach of contract and breach of duty of care arising out of those events. The claim is brought against Vision in its own right and as the employer vicariously liable for the trainer allocated to Mr Wilson, Mr Alex Draffin. On 30 April 2009, an order was made that the question of liability be determined separately from and in advance of the question of damages. This judgment deals only with the question of liability.

Vision admits that it owed Mr Wilson a duty of care, and concedes that there was an implied term of the contract commensurate with that duty. It was common ground between the parties that there was no relevant difference between the duties in tort and contract.

Vision does not allege contributory negligence on the part of Mr Wilson and has not pleaded a defence under s 5L of the Civil Liability Act 2002. Accordingly, the only issues for my determination are whether there was a breach of contract or duty of care as alleged and, if so, whether any such breach caused Mr Wilson’s injury.

The disputed questions of fact are within relatively narrow parameters. The principal areas of contest between the parties are whether Vision or Mr Draffin failed to exercise reasonable care and a substantial medical issue as to the cause of Mr Wilson’s injury. The initial fitness assessment

Before he commenced training at Vision, Mr Wilson was required to attend an initial assessment with a consultant employed by Vision, Ms Jenni Webb. The assessment took about two hours. Ms Webb asked Mr Wilson a series of questions and completed a number of forms on a computer. She then took a photograph of Mr Wilson (apparently intended to be the “before” photograph) and asked him to perform a number of basic exercises, such as sit-ups and push-ups. Ms Webb also provided a “nutrition strategy” (a diet) for Mr Wilson. He stated that Ms Webb gave him a diary in which he was meant to record his food consumption. However, Mr Wilson never made use of it.

At the time of the initial assessment Mr Wilson had been swimming one kilometre twice a week and was walking his dogs regularly. He believed that his level of fitness was average or below average.

Ms Webb formulated a training plan for Mr Wilson which she provided to him during the initial assessment. The programme was based on four sessions with a personal trainer each week, consisting of three cardio sessions and one weights session. However, in his evidence, Mr Wilson stated that he changed the programme because he wanted to do more of the weights sessions. The training plan also contemplated that Mr Wilson would continue to swim and walk on the other days of the week, but there was no evidence as to whether he did so. The programme was contemplated to be for a period of twelve weeks. The commencement of training

Mr Wilson returned to Vision to commence training the following week. There was a dispute in the evidence as to whether his first session was on Monday 10 March 2008 or Tuesday 11 March 2008, but nothing turns on that issue. Whichever day it was, Mr Wilson was then introduced to his trainer, Mr Draffin.

Mr Draffin was then about 20 years old. When he commenced training Mr Wilson, he had only recently obtained his qualifications as a personal trainer, and only recently been employed by Vision.

Mr Wilson’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. Mr Wilson gave evidence that, at the end of the first four weeks, Mr Draffin pulled him into the second phase “even though [he] hadn’t completed the first phase because of work commitments”. In fact, although his attendance had been irregular, within three and a half weeks of training at Vision Mr Wilson had completed nine cardio sessions and five weights sessions. That was approximately the total number of sessions contemplated at the outset, and more than the number of weights sessions proposed by Ms Webb.

Vision had 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 weight card. The weight card was designed to record four weeks on one page. An examination of Mr Wilson’s weight card suggests the possibility that the reason Mr Draffin moved into the second phase a few days early was that, following a late burst of weights sessions by Mr Wilson in the first month, there was no room left on the first card to record any more sessions.

In any event, it is clear enough from Mr Wilson’s evidence and the contemporaneous records that, on Friday 4 April 2008, Mr Draffin started Mr Wilson on the second phase of the programme which, on a strict calendar basis, would otherwise have started the following Tuesday. Did Mr Wilson do a weights session on 5 April 2008?

It is Mr Wilson’s case that the injury to his back was caused by one or both of two “dangerous” exercises performed during a weights session the following day (Saturday 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 Mr Wilson “to twist from side to side whilst sitting up from a prostrate position and catching a heavy medicine ball.”

There was a dispute in the evidence as to whether those exercises were performed at all on 5 April 2008. It was not disputed that Mr Wilson had attended the gym that day, but it was the defendant’s case that he did not do any weights.

At the outset of the session on 5 April 2008, Mr Draffin had asked Mr Wilson how many drinks he had had since their last session, presumably because one of Mr Wilson’s training goals was to confine himself to fourteen standard alcoholic drinks per week. Mr Wilson told Mr Draffin that he had had more than he should have the previous night and said “So go easy on me”.

According to Mr Wilson, Mr Draffin responded “There’s nothing better for a hangover than exercise. We’ll have to smash you”. Mr Wilson did not accept that he was in fact hungover (T79.46). He stressed in his evidence that Mr Draffin’s remark was made in a jovial way and that it was not threatening. Notwithstanding that concession, it was submitted on Mr Wilson’s behalf that I could reasonably conclude that Mr Draffin increased the level of intensity of Mr Wilson’s exercises that day, as a remedy for hangover.

Mr Draffin agreed that there had been a conversation along the lines stated by Mr Wilson, and appears to have in fact assessed Mr Wilson as being “pretty hungover that day” (T316.26). However, he denied making the comment about “smashing” Mr Wilson. I am satisfied that such a remark was probably made. Mr Draffin conceded that “smash” was a term used within the gym to describe an intense level of exercise, meaning to give someone a “pretty tough” work out. I think that the statement attributed to Mr Draffin is the kind of remark he may well have made in the circumstances. I can accept that such a remark would readily stick in the mind of a person about to spend an hour in the gym after drinking the night before. However, the remark was made in a jovial sense, as frankly acknowledged by Mr Wilson. I do not accept that Mr Draffin did in fact push Mr Wilson any harder than he otherwise might have on account of Mr Wilson’s having had a few drinks the night before.

Mr Draffin’s records of his cardio sessions with Mr Wilson include a record of a session on 5 April 2008 with a comment noted by Mr Draffin, “Hungover”. Mr Draffin accepted, in accordance with those records, that Mr Wilson had completed the cardio session that day. However, based on the appearance of the weight card, Mr Draffin concluded that Mr Wilson did not then proceed to complete a weights session, even though financial records reveal that he was charged for one.

Each weights session consisted of three “sets” of five or six exercises. For every other weights session, Mr Draffin recorded, in respect of each exercise, the weight pressed and the number of repetitions in each set (or, in the case of the abdominal exercises, the period of time spent doing the exercise). For every session in the first phase of the programme, and for the first day of the second phase (an entry dated 4 April 2008), Mr Draffin recorded a complete set of entries of that kind, namely, fifteen or eighteen lines noting the weight and the number of repetitions for three sets of each exercise.

It was common ground that Mr Wilson did in fact train on 4 April 2008. In the next column on the weight card (“the middle column”), the only entries are a single number in the “weight” column for each exercise (a total of 5 entries instead of two columns of 18). The column after that is undated, but records much lower weights, which is consistent with Mr Wilson’s evidence that he returned to the gym on a much lighter programme after he suffered the injury.

The incomplete entries in the middle column led Mr Draffin to conclude that Mr Wilson did not complete a weights session on 5 April 2008. As to the limited entries that do appear in that column, Mr Draffin initially suggested that the weights recorded were entered on 4 April in anticipation of the next session. Mr Draffin said “I would write down for the next session what weights I thought he would be able to handle” (T312.4). However, a careful cross-examination by Mr Letherbarrow on behalf of Mr Wilson prompted him to concede that he must be wrong about that. He maintained, however, that Mr Wilson did not do weights that day. His evidence on that issue included the following exchange in cross-examination (T313.14): “Q. You really can't remember why those boxes are largely empty, you can't positively remember that, can you? A. Yes. Q. You can? A. Yes. Q. Why are they empty? A. Because he didn't do the exercise. Q. Why didn't he do the exercises? A. Because that is when he told me that he was having problems with his back and I changed the exercise completely.”

Although Mr Draffin characterised his stated position as something he “positively” remembered, I am satisfied that his evidence on that issue was derived from reconstruction. I do not mean to suggest that Mr Draffin was in any way untruthful. The distinctions between recollection, reconstruction, inference and speculation are readily drawn by lawyers but would, I think, be unfamiliar to a person like Mr Draffin. I formed the clear impression that Mr Draffin was endeavouring to give an honest account of events. However, it appeared to me that, when asked what he could “remember”, he sometimes responded by recounting what he thought had probably occurred. Mr Letherbarrow’s cross-examination established to my satisfaction that Mr Draffin’s position as to whether Mr Wilson did weights on 5 April 2008 was based solely on the appearance of the weight card, as disclosed by the following exchange (T316.4): “Q. Do you say, do you, that you remember that Mr Wilson on the Saturday did not do a weights session? A. It is not written on my weights card, and if it is not written on the card, he did not do a weights session. I can say he did not do a weights session.”

Although the appearance of the notes is unusual, and inconsistent with the careful notes of other sessions maintained by Mr Draffin, I am satisfied that Mr Wilson did undertake at least part of a weights session on 5 April 2008. I have no difficulty accepting Mr Wilson as a truthful witness. Further, I am satisfied that, on this issue at least, his recollection is reliable. Mr Wilson recalled that the next time he trained after 4 April 2008 was the following day. He had a clear recollection that, on that day, the leg press machine was adjusted to its maximum weight, because he recalls thinking “where do I go from here?” (T42.45). The maximum weight for the machine was in fact “200”. The only entry in the weight card recording “200” in respect of the leg press machine is in the middle column.

Mr Wilson also had a recollection that the day he did the exercise with the medicine ball, his partner (Mr Luke Fergus) was at home when he returned, which was consistent with its being a Saturday. That evidence was corroborated by Mr Fergus, who gave evidence of a conversation they had when Mr Wilson returned from the gym one Saturday. Mr Fergus remembered Mr Wilson asking him whether he had ever done the exercise Mr Wilson had been required to do with the medicine ball.

Further, I think it is unlikely that Mr Wilson would propound a claim on that premise if he did not have a clear recollection as to the sequence of events he describes. The sequence he recalls is that he trained on the Friday and the Saturday, was a bit sore on the Sunday and in pain on the Monday. The evidence of his wife (with whom he stills speaks on a regular basis) and his clerk broadly corroborated that sequence of events.

Those considerations lead me to the conclusion that Mr Wilson’s recollection that he did the leg press exercise at “200” and an abdominal exercise with a medicine ball on 5 April 2008 is correct. A possible explanation for Mr Draffin’s failure to record the weights session in accordance with his usual practice is that the session may have been cut short or modified due to Mr Wilson’s condition, but I cannot be sure that is so. As already noted, Mr Wilson did not accept that he was hungover (T79.46), even though he volunteered the evidence that he had asked Mr Draffin to go easy on him because he had exceeded the agreed drinks limit the night before. The horizontal leg press

Accepting that Mr Wilson did perform an exercise on the leg press machine on 5 April 2008, there remains a factual issue as to how the exercise was performed. The leg press machine allows the person to sit on a seat with bent knees and press weights by pushing his or her feet against a plate. The resistance offered by the plate can be varied. Under the first four-week phase of Mr Wilson’s training plan, each weights session included three sets of twelve repetitions on that machine. In most cases, the weights pressed each session were heavier than those pressed during the previous session.

In the second phase of the programme, the leg press exercise was meant to be replaced with a static lunge. When Mr Draffin moved Mr Wilson into the second phase on 4 April 2008, he demonstrated a static lunge and Mr Wilson attempted to do that exercise. He found that it put a strain on his right knee, which was the knee that had previously been operated on (T21). Mr Wilson suggested, and Mr Draffin agreed, that perhaps Mr Wilson should avoid that exercise. It appears that Mr Draffin decided, for that reason, to continue with the horizontal leg press exercise instead.

When these proceedings were commenced, Mr Wilson alleged that, on the day he believes he was injured, Mr Draffin had required him to press the weight of 200 kilograms on the leg press machine. The evidence was that that is an extremely heavy weight for that exercise, on any view, and the allegation that Mr Wilson was required to press it was identified as a particular of negligence on its own. An expert exercise physiologist retained to give evidence in Mr Wilson’s case, Mr Chris Tzarimas, expressed his initial opinion on that premise.

Less than a month before the hearing, however, Mr Tzarimas located an identical machine (apparently for the purpose of replicating the exercise himself) and noted that the maximum weight able to be pressed on that machine was 200 pounds, not 200 kilograms. Mr Tzarimas nonetheless maintained his opinion that the exercise was a dangerous one for Mr Wilson. The two critical considerations underlying his opinion (regardless of the weight) were said to be the intensity or difficulty of the exercise perceived by Mr Wilson and his posture on the machine. It is accordingly necessary to consider the factual basis for those considerations. Mr Wilson’s posture on the leg press machine

Mr Tzarimas said that a horizontal leg press must be performed with strict technique in order to minimise the risk of injury to the lumbar spine. In particular, Mr Tzarimas stated that, when the horizontal leg press is performed, it must be ensured that the lower back, including the backside, is pressed firmly against the supporting pad at all times during the exercise. He also stated that the person sitting on the machine should have their hips flexed so that the angle between the thighs and the chest is no less than 90 degrees.

Mr Draffin stated that, before Mr Wilson began on the leg press machine, Mr Draffin got on the machine to show Mr Wilson the correct way to perform the exercise. Mr Wilson did not remember any such demonstration (T89.22, T94.17), but did not specifically deny it. Mr Draffin also stated that, on the occasions when he asked Mr Wilson to use the machine, he would move the seat forward or back (depending on where it was last left) to the position that was required for Mr Wilson to perform the exercises. It was, I think, uncontested that Mr Draffin did not specifically require or instruct Mr Wilson to push his lower spine or backside against the supporting pad.

Mr Wilson stated that he had difficulty getting onto the leg press machine due to the need to bring his legs close to his chest in order to get his feet onto the plate against which he was required to push. He stated that, once in position on the machine, the two points at which he felt pressure as he performed the exercise were his feet and the area of his thoracic spine. I accept, on that basis, that his lower back was not firmly pressed against the supporting pad, as recommended by Mr Tzarimas. It is also clear from Mr Wilson’s evidence that, when he sat on the machine, his hips were flexed to a more acute angle than that recommended by Mr Tzarimas.

It is necessary, however, also to consider the physical limitations of the machine, which were not considered by Mr Tzarimas when he prepared his first report. A photograph was tendered on behalf of the defendant showing Mr Draffin seated in the machine in the position he demonstrated to Mr Wilson. In relation to the way in which Mr Draffin was sitting on the machine, Mr Tzarimas stated at (T131.6): “Well that would be considered as excessive hip flexion to begin with. The general - the industry recommendations commence with a hip flexion angle of about 90 degrees. I think there are some limitations in the equipment having observed it with regards to the pad adjustment, it may not be able to accommodate persons who are of tall stature.”

The evidence was that both Mr Wilson and Mr Draffin are well over six feet tall, whereas Mr Tzarimas is shorter. The degree of hip flexion in Mr Wilson’s posture on the leg press machine appears, accordingly, to be a function of his height and the structure of the machine. As noted in the written submissions relied on by Mr Wilson, Mr Draffin gave evidence (at T291.23) that he adjusted the seat forward for Mr Wilson because he is a little bit shorter than Mr Draffin, but I doubt the reliability of that evidence. I suspect, like other parts of Mr Draffin’s evidence, it was based on reconstruction. In any event, in light of Mr Tzarimas’ observations of the machine, it seems doubtful whether Mr Wilson could have achieved the posture recommended by Mr Tzarimas, even if he had been instructed to do so. Intensity of the leg press exercise

Before 5 April 2008, Mr Wilson had progressed over five sessions from pressing 110 pounds to 190 pounds. Mr Wilson stated that, as Mr Draffin increased the weight over those sessions, he (Mr Wilson) found that he was unable to push-off at the start of the exercise. It was his evidence that Mr Draffin responded by assisting the commencement of the press, pulling the plate from behind while Mr Wilson pushed it. Mr Wilson said that the assistance provided by Mr Draffin enabled him to start the exercise, but that it was “still a strain to kick it off” (T40). Mr Wilson’s expert witness appears to have interpreted that as a “forced repetition” which “delivered a training intensity beyond the capabilities of [Mr Wilson]” (Exhibit C: Report dated 27 November 2008, paragraph 48).

Mr Draffin denied that there were any forced repetitions on the leg press machine. He initially appeared to agree (at T309.9) that sometimes he had to help Mr Wilson to push the weight out, but there was some ambiguity in that exchange: “Q. Does that mean that on the majority of all times he did the leg press at whatever weight you would help him on the way back in because he was tired? A. Yes. Q. But you didn't always have to help him on the way out pushing the exercise? A. No. Q. But sometimes you did? A. Yes. Q. Depending upon how he was going? A. Yes.”

It is not clear whether Mr Draffin was agreeing that he sometimes had to help, or only that he sometimes helped. Later in his evidence, Mr Draffin denied that Mr Wilson sometimes required his assistance because he could not press the weight himself (T320). He accepted that he sometimes assisted Mr Wilson to push the weight out (he said that he did so by pushing from the same side as Mr Wilson, not by pulling from the other side as alleged by Mr Wilson). However, Mr Draffin said that the reason he assisted was not because Mr Wilson could not start the exercise himself, but that he was only helping him out, as a courtesy, to get him started (T308). He did appear to acknowledge that assistance was required to bring the weight back in at the end of the exercise, when Mr Wilson was tired (T310.25).

Further, Mr Draffin did not accept that the assistance he provided meant that the exercise was a “forced repetition”. He explained that the exercise starts once the weight is actually out. He said that, from that point, Mr Wilson was moving the weight in and out on his own and that he (Mr Draffin) only assisted at the start and also to bring the weight back in at the end of the set. I see no reason not to accept that evidence.

In assessing the evidence as to the leg press exercise, it must be borne in mind that intensity is a matter of perception. I accept that Mr Wilson perceived the leg press exercise at 200 pounds to be a challenging exercise, and that he may well have perceived himself to be unable to commence the exercise without Mr Draffin’s assistance. I also accept, however, that Mr Draffin believed that Mr Wilson did not require his assistance, in the sense that he thought Mr Wilson was physically capable of starting the exercise without assistance. The medicine ball exercise

The second exercise identified as a probable cause of Mr Wilson’s injury was an abdominal exercise described in the particulars of negligence as a: “twist from side to side whilst sitting up from a prostrate position and catching a heavy medicine ball.”

The exercises prescribed in Mr Wilson’s training plan did not include such an exercise. Each weights session included an abdominal exercise, but not with a medicine ball or a twist. For the first four-week phase of the programme, the abdominal exercise was a “supine floor-hold”, which required Mr Wilson to lie on his back on the floor with his knees bent. The trainer placed his hand under Mr Wilson’s back and Mr Wilson was then required to press his back into the floor. The abdominal exercise nominated for phase two of the programme was “supine floor-crunches”, which involved stomach crunches from the same position.

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.

As already indicated, I am satisfied that Mr Draffin did require Mr Wilson, on 5 April 2008, to perform an abdominal exercise using a medicine ball. However, there remain three factual issues to be determined as to whether Mr Wilson was required to do a sit-up or a crunch; the weight of the medicine ball used; and whether the medicine ball was thrown to Mr Wilson whilst he did the exercise.

There was considerable confusion in the evidence as to whether Mr Draffin required Mr Wilson to do a sit-up or a crunch. In his evidence in chief, Mr Wilson stated: “Q. When it came to the supine floor crunch exercise, on that Saturday, did you do it? A. No. Q. Did you do something in place of it? A. Yes. Q. Before you did that were you told what you were supposed to do? A. No, well he pulled over a mat, put it on the floor and told me to lay on the floor which I did, and to bend my knees which I did. He then went over into the corner where there was a rack and on the rack there were a couple of medicine balls and one of those large Swiss balls. Q. By Swiss balls you mean a light weight ball that is inflated with air that you can sit on and this sort of thing? A. Yes. Anyway then he came back to where I was which was only a few metres away and he stood on my shoes and told me to do sit-ups and explained that in the course of doing sit-ups he would throw the medicine ball to me and that I would have to twist from side to side and touch the floor. Q. This is what, after you caught it? 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.”

That is consistent with the assumptions recorded by the expert, Mr Tzarimas: “mm. Mr Draffin instructed the plaintiff to sit on the floor with knees flexed as in a ‘sit-up’ position. The plaintiff was then instructed to perform the ‘sit-up’ motion, and catch the medicine ball on the upward phase, then perform ‘trunk twists’ with the medicine ball held at chest level. To execute this motion, the plaintiff rotated his torso to the side to the extent that he could bring the medicine ball into contact on the floor beside him. The plaintiff was instructed to perform this maneuver (sic) on both sides before returning the ball to Mr Draffin - this constituted a single repetition. nn. The exercise was performed with Mr Draffin standing on the plaintiff’s feet, acting as a stabilising mechanism. The plaintiff cannot recall the weight of the medicine ball, however he does recall that it was of a “challenging weight”. The plaintiff performed three sets of this exercise and estimates that each set comprised ten complete repetitions.”

The confusion in the evidence arose from the fact that, although it was ultimately Vision’s case that the exercise performed that day was in fact a crunch (not a sit-up), the case was not run consistently on that basis from the outset.

In light of a comment made by Mr Gracie (at T344.4), who appeared on behalf of the defendant, I apprehend that the confusion may have been contributed to by a failure on the part of Vision’s legal representatives to draw the distinction between a sit-up and a crunch when the proceedings were being prepared for hearing. They obtained a photograph of Mr Draffin demonstrating a sit-up, and it was expressly put both to Mr Wilson (at T86.44) and to Mr Tzarimas (T213.27; T214.26) that that was the exercise in question.

It was never put to Mr Wilson that the exercise was a crunch. That point was taken by Mr Letherbarrow during an objection to Mr Gracie’s cross-examination of Mr Tzarimas in the following exchange (T232.23-T232 .30): “LETHERBARROW: I object. It wasn't put to the plaintiff that he was doing a crunch with the medicine ball. HER HONOUR: We have established fairly clearly it was a sit-up, not a crunch. GRACIE: We have your Honour. So long as crunches is out of the equation, I will move on.”

However, when Mr Draffin came to give evidence, he stated that the only exercise he gave Mr Wilson involving a medicine ball was a floor crunch. Mr Draffin acknowledged that the photographs taken of him by Vision’s legal representatives clearly show him holding a medicine ball in a sit-up position with hips flexed, not in a crunch position. He stated, however, that he never performed such an exercise with Mr Wilson using the medicine ball. He said that they tried to do sit-ups once, and that Mr Wilson couldn’t do them (T342.26). Mr Draffin’s evidence in cross-examination in relation to the photographs was: “Q. You may not know the answer to this. Why did you have photographs of yourself, or do you know why you had photographs of yourself taken, doing a sit-up with a ball? A. I just did the exercise that I was told to do when they were taking the photographs. I don't know why.”

Mr Draffin’s evidence as to the failed attempt at sit-ups included the following exchange (at T332.14): “Q. (Witness be shown exhibit M.) In the top photograph, on the first page, you are in, more or less, a full sit-up position, is that right? A. More or less, yes. Q. You would describe that yourself, and always would have, as a sit-up? A. That is a sit-up, yes. Q. It is not a crunch? A. No. Q. So, when you had Mr Wilson perform that exercise, you were having him perform a sit-up with the variation using a medicine ball, and the like, but it was a sit-up using the ball? A. I believe we started off doing sit-ups, then it went back to crunches, because sit-ups would have been too challenging. He could not do it. Q. That was after he brought in the note from Mr Scala, or Mr Scali? A. The day I can't remember. Q. But, in any event, you just said that you went backwards from sit-ups to crunches, because you recollect him finding the sit-ups too challenging? A. Yes, they were a bit too much of a challenge. I thought he would have got more benefit from doing the crunches.”

Understandably, Mr Draffin’s evidence that the medicine ball was used only with the crunches, and not in conjunction with the failed sit-up attempt, came as a surprise to the cross-examiner (T340.44) since the defendant’s case had been conducted up to that point on the premise that the exercise involving the medicine ball was a sit-up. I am satisfied, however, that the surprise did not reflect any inconsistency on the part of Mr Draffin. Mr Draffin presented as an earnest witness. He expressed himself in simple terms, without guile. Once it emerged that he denied requiring Mr Wilson to do a sit-up using a medicine ball, Mr Letherbarrow pressed him as to the photographs that had been taken and his preparation of a statement in response to the evidentiary statement served by Mr Wilson. In my view, nothing in that exchange (at T341-T349) undermined his evidence.

Although he did not purport to have an actual recollection of the exercise performed on 5 April 2008, Mr Draffin remained firm that he would not have required a client like Mr Wilson to do sit-ups, which is the most advanced abdominal exercise, with the additional difficulty of a medicine ball (T341.11; T345.49; T348.42). It was submitted on behalf of Mr Wilson that Mr Draffin “cannot recall if he used the ball or not”. The relevant exchange on that issue (at T332.38) was: “Q. So, is it the case that, as you can correct it, you only did the sit-ups on one occasion? A. Yes. Q. And that was the occasion that he did the sit-ups with the use of the ball? A. I am not sure if he had the ball or not. Q. But you only remember him doing sit-ups, with or without a ball, on one occasion? A. Yes. Q. But you can't actually remember, now, whether you even used the ball or not? A. Yes, because I would have demonstrated a sit-up to him, then asked him to do one. Then, after the first set, it would have been apparent that he was a bit challenged by it and I would have reduced it down by a crunch.”

I do not think Mr Draffin meant, in that exchange, to concede the possibility that he introduced the sit-up and the medicine ball in the same session. On the contrary, in my view it is clear from his evidence that he did not think that occurred, for the cogent reasons he gave.

As a result of the way in which the issue unfolded during the hearing, I am left in a difficult position. As already noted, Mr Wilson clearly stated that he was asked to do a sit-up, not a crunch. However, I doubt the reliability of his evidence on that issue. As a matter of procedural fairness, I am concerned about the fact that Mr Draffin’s version was not put to Mr Wilson in cross-examination. On the other hand, the position finally put on behalf of Vision was clear by the end of the hearing, and no application was made to re-call Mr Wilson, despite Mr Gracie’s invitation to that course (at T289).

The difficulty is that discharge of the plaintiff’s onus of proof on this issue requires me to have some sense of actual persuasion: Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44] to [52]. Adopting the language of Hodgson J (writing extra-curially) approved by the Court in Nguyen at [52], before making a finding of fact that Mr Draffin required Mr Wilson to do the medicine ball exercise in conjunction with a sit-up, I would have to believe that that event occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%.

Adopting that approach, I am not satisfied on the balance of probabilities, and to a point of actual persuasion, that Mr Wilson was required to do sit-ups with the medicine ball on 5 April 2008. Mr Draffin’s evidence raised considerable doubt in my mind as to the reliability of Mr Wilson’s description of the exercise in question. Although Mr Wilson apparently used the term “sit-up” when he gave a history to Mr Tzarimas, I have no way of assessing whether he used the term correctly at that stage. It is possible that it was Mr Tzarimas who used that term, based on a description of the exercise, but there is simply no way of knowing that, let alone assessing the reliability of the description.

My doubts as to the reliability of Mr Wilson’s evidence on that issue have been reinforced by an analysis of other evidence in the hearing. In a history taken at an earlier point in time by Mr Wilson’s medical expert, Dr Hopcroft, the exercise was described as a crunch: “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 as 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 the ball on the floor on each side. The patient recalls doing three sets of this particular exercise, however, he cannot recall how many repetitions were done in each set. He had not ever done that exercise prior to the 5 April 2008.”

In a later report, Dr Hopcroft used similar language when he referred to it as “the medicine ball abdominal crunching exercise routine”. A similar description was recorded by Dr Maxwell, the defendant‘s medical expert witness, as follows: “On Saturday, 5/4/2008 he was doing leg presses at the highest level on the machine. He indicated that he was lifting 200kgs. He was doing repetitions of 10. The other activity he indicated he did was “crunches”. He had previously been doing sit-ups for a couple of weeks initially as a floor exercise. On this particular Saturday he was doing stomach “crunches”, getting approximately halfway up. The personal trainer threw a medicine ball to him which he caught in his arms. He had to twist from side to side and touch the ground with the medicine ball. He would then throw the medicine ball back. He did this for 10-12 repetitions. This was the last exercise in the session. He left that day and felt somewhat exhausted. He was not aware of any backache.”

The history recorded by Dr Conrad (a surgeon) was that Mr Wilson was required to do “sit-ups as he reached 45°” and to twist from side to side at that point. That is inconsistent with Mr Wilson’s evidence at the hearing which suggested that he caught the ball at about that point (or lower), but then sat up further and did the twist from a higher point (T84).

When Mr Wilson came to prepare his evidentiary statement for the purpose of the hearing, he did not recite these events in his own words, but simply adopted the assumptions recorded by Mr Tzarimas. His evidence-in-chief was broadly consistent with that account, subject to some matters of specific correction.

Although I accept without hesitation that Mr Wilson was an honest witness, his attention to detail in matters of exercise was poor at the time of these events, and in my view that has impaired his ability to give a reliable account. Apart from confusing pounds with kilograms, he allowed Mr Tzarimas to provide his initial opinion on the basis of two additional fundamental errors. First, Mr Tzarimas (and Dr Hopcroft) recorded that Mr Wilson did three sets of ten or twelve repetitions of the medicine ball exercise, whereas his evidence at the trial was that he did perhaps fewer than ten repetitions in total. Secondly, Mr Tzarimas recorded that Mr Wilson did the cardio session after the weights session (which may have had a bearing on the issue of warm-up) whereas at the hearing, he said it was the other way around (T101.29). As a barrister, Mr Wilson must have appreciated the importance of giving a reliable history on those matters, and I am sure he made an honest endeavour to do so, but the errors are significant and it seems likely that that is due to unfamiliarity with the subject or a lack of interest in it.

Mr Draffin, on the other hand, was familiar with the exercises in question, and also honest, in my view. Although he did not pretend to have actual recollection on this issue, his reasoning as to why he would not have required Mr Wilson to do a sit-up with a medicine ball that day causes me considerable doubt that he did. I am satisfied that the exercise Mr Draffin requested Mr Wilson to perform on 5 April 2008 was a crunch with a medicine ball in which he was required to move from side to side at the top of the crunch.

There is an additional factual issue as to whether the ball was thrown to Mr Wilson during each crunch or held continuously by him. Mr Wilson consistently said that the ball was thrown to him. That is the kind of detail that I think he would remember. It was denied by Mr Draffin, but not with any great conviction. I accept that the ball was thrown to Mr Wilson throughout the exercise.

The final factual issue to be determined is which medicine ball was used by Mr Draffin on that occasion. Two medicine balls from the defendant’s gym were tendered in evidence in the hearing. The first was a green and black ball, which weighs 2 kilograms. The second was a black and grey ball, which weighs 5.4 kilograms. Mr Wilson was adamant that the ball thrown to him by Mr Draffin was the larger, heavier ball. It was the defendant’s case that the larger ball was not in the gym on 5 April 2008, but the evidence on that issue was vague. On balance, I am satisfied that it was probably the heavier ball that was thrown to Mr Wilson that day. The evidence of Mr Tzarimas

The evidence relied upon by Mr Wilson to establish the negligence and breaches of contract alleged was the evidence of Mr Tzarimas. Mr Tzarimas is an “Accredited Exercise Physiologist”, holding a Bachelor of Science in human movement studies and exercise science from the University of Wollongong and a Master of Science in exercise rehabilitation from the same university. His reports were admitted (without objection) as expert opinion evidence under s 79 of the Evidence Act 1995. Vision did not call any witness with expertise in that field.

In my view, the process by which Mr Tzarimas’ reports were prepared was unfortunate. It is well established that a prime duty of experts in giving opinion evidence is “to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions”: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [59] per Heydon JA. The “basal principle” is that what an expert gives is an opinion based on facts: Makita at [64]. In order to enable the trier of fact to assess the opinions expressed, the expert must explicitly identify any facts assumed as the basis for the opinion and fully expose his or her reasoning.

To that end, it is common for experts to state that they have assumed a series of facts provided for them in writing by those who retain them. That did not occur in the present case. Mr Tzarimas was left to prepare his own assumptions after speaking to Mr Wilson in two interviews, one by telephone and one in person. So far as the evidence before me discloses, no written statement was provided to him and there is no independent record of what was said in the two meetings.

That is not a problem in itself. As noted in Makita at [66], the assumed facts need not be listed in an artificial way. In the case of medical experts it is permissible, and indeed common, for a doctor to include the history obtained from the patient (usually confined to medical background and presenting symptoms) as part of the foundation for his or her opinion. However, at least until the introduction of the Evidence Act , the opinion was of little weight, and potentially inadmissible, if the history given to the doctor was not proved independently by admissible evidence at the trial: Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642; cited in Makita at [66].

The vice of the approach adopted in the present case was that the facts assumed by Mr Tzarimas and the proof of those facts in the trial became hopelessly intermingled. Mr Tzarimas endeavoured, in his first report, to set out the information provided to him by Mr Wilson. However, the material recited by him is not purely factual. It is a combination of the facts stated by Mr Wilson and their interpretation by Mr Tzarimas using the language of his expertise.

Mr Wilson, in turn, sought to prove the facts assumed by Mr Tzarimas by the device of adopting what Mr Tzarimas had recorded. In his evidentiary statement served before the hearing, he stated: “The factual matters referred to in [Mr Tzarimas’ report] are accurate, save for the following matters …” [A short list of corrections followed.]

It should be noted that the facts assumed by Mr Tzarimas were, at least in theory, capable of being established by the report itself. When the report was tendered, no order was sought limiting its use under s 136 of the Evidence Act . Accordingly, any factual representation made by Mr Wilson to Mr Tzarimas that was recorded in the report was admissible to prove the facts that Mr Wilson intended to assert: s 60 of the Evidence Act ; R v Welsh (1996) 90 A Crim R 364.

The difficulty is, however, that the facts intended to be asserted by Mr Wilson cannot readily be distinguished from Mr Tzarimas’ interpretation of them, owing to the way in which the history taken by Mr Tzarimas has been recorded.

For example, Mr Tzarimas recorded that Mr Wilson advised him of the following: “n. The strength sessions would typically involve three (3) sets of four to six (4 to 6) exercises addressing both the upper and lower body musculature. Commencing the first personal training session, all strength exercises were delivered at high intensity for all three sets”.

It was clear from Mr Wilson’s evidence in cross-examination that those were not his words. The statement that all of the strength exercises were delivered at “high intensity” is a conclusion, and was an important assumption underlying Mr Tzarimas’ opinion. Unfortunately, however, the report does not expose the basis for that conclusion and Mr Tzarimas offered no objective measure by which I can assess its reasonableness, or what it means.

In another part of the history recorded by Mr Tzarimas, he states: “t. Mr Draffin did not inform [Mr Wilson] of the risks associated with the prescribed exercises and with the intensity they were delivered. Furthermore, Mr Draffin did not highlight common precautions with each exercise”.

Mr Wilson’s evidence on that issue was that he recalled Mr Tzarimas asking him whether he was informed of risks of exercise and he told Mr Tzarimas that he was not. However, in the absence of any identification of the “risks” and “common precautions” that Mr Tzarimas had in mind, I am unable to assess whether that part of the history has any significance. The risks and precautions referred to may be matters that would have been obvious in any event to a person like Mr Wilson, who is plainly an intelligent man and who practices predominantly in the area of personal injuries litigation. Jones v Dunkel inferences contended for by Mr Wilson

In written submissions filed after the conclusion of the hearing, it was submitted on behalf of Mr Wilson that the Court might reasonably have expected Scott Capelin (the proprietor of Vision), Jenni Webb (“body coach and trainer”) or Mr McLennan (the manager of Vision) to be called. It was submitted that the evidence of Mr Draffin was challenged in many respects and, accordingly, that the Court could infer that those witnesses would not have corroborated Mr Draffin’s evidence on matters on which he was challenged as to the operations and practice of the studio. As noted in the written submissions filed on behalf of Vision, the plaintiff’s submissions did not identify any particular part of Mr Draffin’s evidence which should have been corroborated. During the hearing, the principal area of factual contest appeared to be the way in which the exercises were undertaken, which only Mr Draffin could address. Mr Capelin might have been called to corroborate Mr Draffin’s evidence as to his induction and supervision, but Mr Draffin’s evidence on that issue was largely uncontested. I am not satisfied that any adverse inference should be drawn against Vision on account of its decision not to call any of those witnesses.

Separately, Mr Wilson submitted that it was “significant” that Vision did not engage an expert to meet the expertise of Mr Tzarimas. I am satisfied, however, that no explanation as to the absence of a liability witness on behalf of Vision was called for. The defendant’s case was run on the forensic premise that Mr Tzarimas’ evidence was greatly flawed and should not be accepted. I do not think it would be appropriate to draw a Jones v Dunkel inference in those circumstances.

The plaintiff also submitted that Vision had placed significant emphasis in its case on the fact that there were many other gyms in the CBD or North Sydney area and that Mr Tzarimas was ignorant of the practices of those gyms. The submissions on behalf of Mr Wilson drew attention to the fact that the defendant failed to call any person from any of those gyms who may have supported the practice and approach to training adopted at Vision.

I do not think that the failure to call such evidence gives rise to a Jones v Dunkel inference. As submitted by Mr Gracie, the onus of proving the relevant normative standard is the plaintiff’s. Clearly, however, a consequence of the defendant’s decision not to call any such witness and not to call its own liability expert was that the only source of evidence as to the appropriate normative standard was Mr Tzarimas. Standard of care

It was submitted on behalf of Mr Wilson that the standard of care owed by Vision to Mr Wilson is informed by the fact that Vision provided a specialised service, and that the standard of care owed in that context was higher than that of a “regular gym”. In particular, reliance was placed on the fact that Mr Wilson had paid a “considerable fee” to attend a studio with one-on-one training.

Mr Gracie submitted on behalf of Vision that it would be unsafe to rely on that submission, since there had been no comparative evidence as to the fees usually paid for different levels of service in the fitness industry. He submitted that it is for Mr Wilson to demonstrate what he as an individual was entitled to expect as a reasonable standard of care to be exhibited by Vision and to show that there was a breach of that reasonable standard of care, citing Neill v NSW Fresh Food & Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362. Mr Gracie submitted that Mr Wilson’s case was focussed squarely upon the expertise of Mr Tzarimas and the reference material relied upon by him. He submitted that both suffer from the defect that they show what should have been known at elite levels and do not reflect the standard of care within gyms in the Central Business District and North Shore of Sydney.

As submitted on behalf of Mr Wilson, however, he did attend the defendant’s gym for the purpose of obtaining the assistance of a qualified personal trainer to implement a fitness programme. I accept that the evidence does not establish where Vision falls in the notional range of physical training services. In my view, it is not necessary to determine whether the comparative standard of a “regular gym” is any different. It is enough to say that I accept, as submitted on behalf of Mr Wilson, that the standard of care is that of a reasonable personal trainer and a reasonable personal training studio.

Mr Gracie accepted that, to the extent that it is established that Mr Draffin was inexperienced, that is irrelevant to the standard owed by him: Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 at [72] per Gummow, Hayne and Kiefel JJ. Statutory test

Mr Wilson’s claim is also governed by the provisions of Part 1A of the Civil Liability Act 2002. Section 5B of the Act provides: General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the 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.

In his first written outline of submissions, Mr Gracie submitted that, in light of the way in which Mr Wilson had progressed through his programme without complaining of back pain, Vision and Mr Draffin “were entitled to, and did not regard the work of Mr Wilson in the gym as involving a significant risk.” However, the inquiry that arises under s 5B(1) is whether the risk was foreseeable and “not insignificant”. I am satisfied that the risk of injury to Mr Wilson was foreseeable and not insignificant.

Separately, Mr Gracie submitted that there was nothing in Mr Wilson’s presentation “which could cause any reasonable observer to consider that there existed a probability of harm”. I do not think that s 5B(2), on its proper construction, means that a reasonable person would only take precautions against a probable risk of harm. It means only that the probability that the harm would occur if care were not taken (whether a high probability or a low probability) is one of the factors the Court must take into account. In further written submissions filed after the conclusion of the hearing, Mr Gracie asked the Court to find that it was improbable that harm would occur. There was no empirical or statistical evidence on that issue. As counsel for the plaintiff reminded me (unnecessarily), this case must be determined on the evidence and not from information drawn from my personal knowledge or experience: Strinic v Singh [2009] NSWCA 15. Nonetheless, on this issue I feel confident in concluding that the risk of back injury in a gym is not improbable and I decline to make the finding sought by Mr Gracie.

Mr Gracie also relied on the burden of taking precautions to avoid the risk of harm referred to in s 5B(2)(c). He submitted that the very essence of an arrangement for personal training is to put the client in pain and under exertion in order to achieve the objective of greater fitness. He submitted that the burden of taking precautions to avoid any harm in that context was not only overwhelming and impractical, but ignored the very essence of the arrangement.

Mr Gracie submitted further, invoking s 5B(2)(d), that the operation of personal training studios is an activity of high social utility. He said “gyms are meeting places, progenitors of community health, promote longevity and enjoyment of the twilight years, keep burgeoning health costs down, occupy idle persons, dissipate stress, give homemakers a break from drudgery, enhance the personal self esteem of members in their body image, etc etc”.

In my view, those considerations are relevant in the present case. The legislation appears to assume that it might be reasonable to take fewer precautions against a risk of harm created by an activity of high social utility. I accept that physical exercise is such an activity. Mr Wilson gave evidence that he had been suffering from depression for a period of time before he decided to get fit. He said that he had received medical advice to undertake a programme of physical fitness as a step towards weaning himself off anti-depressant medication. Plainly, that was a worthy objective.

On the other hand, it would have been obvious to a reasonable personal trainer taking on a client with Mr Wilson’s history that there was a prospect of injury if he was trained too hard. A delicate balance had to be found. Breaches of duty alleged by Mr Wilson

The amended statement of claim identified fifteen particulars of breach. After the conclusion of the evidence, Mr Wilson expressly maintained reliance on all of the particulars, even though it was asserted that his case was “best described” by particulars (g), (h) and (l). Regrettably, it is accordingly necessary to address them all.

The evidence of Mr Tzarimas did not address all of the particulars in terms. Further, some of the issues he did address were not raised by the pleadings (Mr Letherbarrow acknowledged that it would be appropriate for the Court to ignore those parts of the reports: T34.18).

The allegations fall into four broad categories: the systems under which Mr Wilson’s training plan was established (including the allocation of Mr Draffin as his trainer); general allegations in relation to the exercise programme delivered; specific allegations in relation to the leg press exercise and specific allegations in relation to the medicine ball exercise. The establishment of Mr Wilson’s training plan

The first series of allegations to be considered relates broadly to the processes under which Mr Wilson’s training plan was established and implemented, particularly including the fact that the trainer allocated to him, Mr Draffin, had only recently obtained his formal qualifications as a personal trainer. The particulars of negligence in paragraphs (b), (c) and (m) of paragraph 7 of the amended statement of claim allege that Vision: “(b) delegated the implementation and/or supervision of the said training programme to a trainer who was not adequately qualified and/or sufficiently experienced to conduct same safely; (c) failed to train or adequately train and/or supervise or adequately supervise the trainer in his implementation of the said training programme; (m) failed to have in place any adequate induction programme for clients that: (i) explained the purpose and relevance of each exercise; (ii) involved demonstrations by the trainer explaining proper technique; (iii) explained the common precautions and the effect of incorrect technique; (iv) provided supervision and instruction of the client performing exercises at low resistance in order to develop correct technique.”

Mr Tzarimas expressed the following opinion on those issues: “In my opinion, the defendant failed to implement reasonable and necessary risk management procedures relating to staff competence and quality of client care. Had the defendant implemented reasonable and necessary risk management procedures, it is unlikely the plaintiff would have sustained the injury on 5 April 2008.”

His report discloses no basis for the robust conclusion expressed in the second sentence.

I do not think it has been established that Mr Draffin was not adequately qualified to conduct Mr Wilson’s programme safely. Mr Draffin holds a Certificate III in Fitness and a Certificate IV in Fitness from the Australian Institute of Fitness, which is the appropriately accredited course for personal trainers. Mr Tzarimas was unaware of Mr Draffin’s qualifications when he prepared his first report and it was effectively acknowledged during the hearing that the qualifications were adequate.

As to whether Mr Draffin was sufficiently experienced to supervise Mr Wilson’s programme, there was a substantial issue between the parties. Mr Wilson relied, in part, on a supposed admission made by the proprietor of the gym, Mr Capelin, who called Mr Wilson when he was in hospital having an operation on his back. Mr Capelin offered Mr Wilson three months free training and said “this time I will give you an experienced personal trainer”. That evidence was not challenged, and I accept it, but stripped of any context, I do not think it has any weight as an admission. In any event, the critical question is whether Mr Draffin failed to act in accordance with the legal standard of care, whether due to inexperience or otherwise. As submitted by Mr Gracie on behalf of Vision, unless the alleged inexperience is shown to have had some causal effect, reference to it is surplus. I am not satisfied that it was negligent of Vision to allocate Mr Draffin as Mr Wilson’s personal trainer.

It was submitted on behalf of Mr Wilson that Mr Draffin’s inexperience also gave rise to extra responsibilities owed by Vision in relation to the training and supervision of Mr Draffin and I accept that is so. Mr Tzarimas’ conclusion as to the alleged absence of “reasonable and necessary risk management procedures relating to staff competence” is based principally on Mr Tzarimas’ contention that there should have been a “shadowing” programme whereby new staff observed the more experienced staff for a period of time.

Mr Tzarimas appears to have assumed that there was no supervision of Mr Draffin which would fulfil the requirements of such a programme, but there is no basis for that assumption. It appears to have been based on the history taken from Mr Wilson that there was no-one else present when Mr Draffin trained him, and informed further by Mr Tzarimas’ other conclusions as to Mr Draffin’s negligence.

Mr Draffin’s evidence established that he undertook a four-day induction programme before starting at Vision. After the completion of that programme, he continued to receive guidance both from the manager and from other trainers employed in the gym (T302). He stated that, in the period before he began training Mr Wilson, he was always under some form of supervision. He had also been provided with, and watched, a training DVD demonstrating the exercises and had done “a lot of one-on-one training with the manager, sitting in on sessions.” I am not satisfied that Vision failed adequately to train or supervise Mr Draffin.

In written submissions filed after the conclusion of the hearing, it was submitted on behalf of Mr Wilson that Vision breached its duty of care by failing to ensure that the trainer followed the prescribed programme, but that was not pleaded as a particular of negligence. Even if that allegation had been pleaded against Vision, it is doubtful whether failure to ensure strict adherence to the programme would be negligent in itself. It would be necessary to consider all of the circumstances, including the extent of the departure and whether there was any reason for it.

The written submissions also alleged that Vision breached its duty of care by failing to monitor Mr Wilson’s progress and Mr Draffin’s performance through the prescribed programme. As to monitoring Mr Wilson’s progress, that was also a new allegation. The allegation pleaded in the statement of claim is that Vision failed to supervise or adequately supervise the trainer in his implementation of Mr Wilson’s training programme. I do not think that Vision’s duty of care would extend to specifically supervising the implementation of each programme undertaken by Mr Draffin with every client in the gym. There is no evidence that satisfies me that Mr Draffin required that level of supervision.

As to whether Vision had in place an adequate induction programme for clients (particular (m)), Mr Tzarimas stated: “In my opinion, the defendant failed to act on the information provided by the plaintiff, to ensure that the plaintiff was familiarised with the general guidelines and principles of strength training. This would be considered a reasonable and necessary risk management process. Furthermore, the plaintiff was not provided an opportunity to proved (sic) informed consent with regards to the assessment and program. Informed consent procedures are an industry standard practice and are usually provided both verbally and in writing (See Appendix A - sample Informed Consent Form ). In my opinion, the defendant failed to inform the plaintiff of the general risks associated with exercise - and moreover high intensity strength exercise - as well as outlining the responsibilities of both the defendant and the plaintiff to minimise such risks.”

The assertion that Mr Wilson was not provided with an opportunity to provide informed consent does not coincide with any complaint made by Mr Wilson himself. Mr Tzarimas attached to his first report a sample Informed Consent Form which provided information as to what the exercise programme involved, possible risks associated with the programme and the client’s responsibilities to tell the trainer about any health issues arising during the course of the programme. The form concluded with a statement of consent on the part of the client voluntarily to engage in the “lifestyle program” explained.

Mr Wilson did not mount a case based on the absence of informed consent. Unsurprisingly, he gave no evidence suggesting that he was unaware of the programme proposed or the fact that physical exercise entails risks or can result in physical injury. He did not contend that, had he been provided with such information, he would not have embarked upon the programme. The inclusion of that assertion in Mr Tzarimas’ report was, in those circumstances, gratuitous.

It is difficult otherwise to evaluate Mr Tzarimas’ conclusion as to the adequacy of Vision’s induction programme for clients, because his opinions on that issue are expressed in terms of indeterminate reference. The conclusion that Vision failed to ensure that Mr Wilson “was familiarised with the general guidelines and principles of strength training” does not identify the matters of which Mr Wilson was ignorant, knowledge of which might have prevented the injury.

I find it difficult to accept that Mr Wilson did not acquire some familiarity with the principles of resistance training during the early phase of his programme, but it is impossible to judge that issue because of the way in which the evidence was given. Mr Tzarimas asserted, in assumption (y) in his report: “The plaintiff was and remains unaware of the principles of resistance training, including the importance of specific warm-ups for muscle groups, progression of exercise intensity (or progressive overload), appropriate speed of movement, avoidance of ballistic actions, appropriate recovery periods and appropriate weekly frequency of strength sessions.”

Mr Wilson adopted that assumption as his evidence on the issue, but I cannot judge the significance of those matters without knowing precisely what it is alleged he should have been told.

I am not satisfied on the evidence before me that there were any shortcomings in the process of induction for new clients at Vision so far as it was applied in the case of Mr Wilson. The programme delivered

A series of allegations made by Mr Wilson related generally to the exercise programme delivered by Vision. Particulars (a) and (g) allege that Vision: “(a) devised a training programme which was unsafe and unsuitable for the Plaintiff to undertake bearing in mind his age and/or level of fitness. (g) permitted or required the Plaintiff to perform exercises which were beyond his capacity.”

Particular emphasis was also placed on particular (h), which alleges that Vision failed to have Mr Wilson undertake any or any adequate core muscle-strengthening programme before performing the leg press and medicine ball exercises. Particulars (i) and (j) allege that the programme failed to require Mr Wilson to do any warm ups before commencing each set of exercises and failed to include appropriate rest breaks between sets of exercises.

Mr Tzarimas’ opinion on those issues was based largely on resistance training guidelines developed by the American College of Sports Medicine, which he annexed as Appendix 5 to his first report. Additional materials on that issue were annexed as Appendices 6 and 7. Mr Tzarimas analysed the training records maintained by Vision in respect of Mr Wilson against those guidelines and concluded: “In my opinion, Mr Draffin has ignored a fundamental principle of strength exercise known as ‘progressive overload’, whereby increases in resistance (or load) should be gradual and allow for adaptations to occur in the exercising individual. The principle also recognises that the increments in strength diminish as the training program progresses - hence the need to practice caution when increasing resistances (Appendix 6, pages 50-52; Appendix 7, page 7). In my opinion, Mr Draffin had subjected the plaintiff to difficult exercises and intensities prematurely increasing the risk of injury to the plaintiff. Furthermore, such high intensities - particularly in the absence of warm-ups - would not have encouraged the development of correct technique by the plaintiff, consequently increasing the risk of injury (Appendix 6: pages 35, 40-42, 49-50; Appendix 7: pages 7, 9-10).”

It is important to note that, at the time he expressed that opinion, Mr Tzarimas was labouring under at least three incorrect assumptions, namely, that the weight pressed was 200 kilograms (not 200 pounds); that Mr Wilson did the weights session before the cardio session on 5 April 2008 and that Mr Wilson did three sets of ten of the abdominal exercise twisting with the medicine ball. The incorrect assumption as to the weight increments on the leg press machine (pounds, not kilos) was identified before the hearing and addressed in a supplementary report dated 15 May 2009 which dealt specifically with the risk associated with that exercise.

It is not clear when the two other incorrect assumptions were drawn to Mr Tzarimas’ attention. In his fourth report dated 10 June 2009, Mr Tzarimas re-emphasised the importance of warm-up activities. He said “for resistance training sessions, this involves performing preliminary sets at a light load for each resistance exercise”. However, he was not asked to address whether, if the cardio session was in fact performed before the weights session and not after, that would provide adequate warm-up of the relevant muscles.

The principal difficulty I have with the opinion of Mr Tzarimas on this issue is that he has failed to expose the reasoning by which he reached his conclusion. I am able to understand, from the material annexed to the report, the principle of “progressive overload” but I am unable to evaluate the reasoning by which Mr Tzarimas felt able to conclude that Mr Draffin ignored that principle.

A further reservation I have in relation to Mr Tzarimas’ evidence is that I am not satisfied that he brought a completely independent mind to his task. He presented as having rather assumed the role of Mr Wilson’s advocate in this case. His initial report included, in addition to proper statements based on his expertise, many additional rhetorical or argumentative points, such as a reference to the comment of Mr Capelin considered above (paragraph 23 of the report). He volunteered that Mr Draffin “failed to demonstrate a duty of care” by not modifying the session or cancelling it altogether in light of his assessment that Mr Wilson was hungover, even though that was no part of Mr Wilson’s case. He speculated that some of Mr Draffin’s notes recording the need to take care of Mr Wilson’s knee “may have been the result of the high intensity leg press exercises” where, again, that was no part of the case in which he had been retained as an expert. His later reports included comments and emphasis which, in my view, were not consistent with the independence to be expected of an expert.

Mr Tzarimas’ oral evidence confirmed that impression. His third report deals with his own replication of the 200 pound leg press on a machine he located by contacting the manufacturer. Cross-examination on that issue produced the following exchange (at T162): “Q. Who asked you to go out to the manufacturer for the purpose of publishing your third report? A. It was discussed with the barrister, Ross Letherbarrow. Q. It may have been discussed but were you asked or did you volunteer to go of your own volition? A. Well it was discussed and then I volunteered in order to support my case, yes.”

It is not clear to me how that comparison was intended to “support” Mr Tzarimas’ case, unless he is assuming that he is stronger than Mr Wilson.

Those considerations lead me to the conclusion that Mr Tzarimas approached his task looking for fault in the defendant’s studio according to Mr Tzarimas’ exacting standards. Outside his role as an expert in these proceedings, I make no criticism of him on that account. It was clear that Mr Tzarimas is passionately concerned to see the highest standards of professional responsibility practiced in the fitness industry, but my task is not governed by those standards but by what is reasonable in the circumstances.

The critical question is whether Mr Draffin failed to take the precautions which a reasonable personal trainer in his position would have taken. In relation to the programme delivered to Mr Wilson, I am not satisfied on the evidence before me that there was any failure in that respect. Much of the evidence led on behalf of Mr Wilson, in my view, rested on hindsight reasoning. That is, it was concluded from the fact that Mr Wilson in fact injured his back that more core strengthening exercises, or more warm-ups, or exercises of lower intensity should have been delivered. However, in my view, the evidence failed to identify any facts that should have been known to Mr Draffin at the time which should have prompted him to approach Mr Wilson’s programme any differently.

Mr Wilson places reliance on two statements made by Mr Draffin after Mr Wilson suffered his injury. Mr Draffin stated to Mr Wilson that he “shouldn’t have started [him] off so hard” and “we should have done more core strengthening exercises first”. In my view, those remarks should not be construed as anything more than statements of regret. I do not think that they amount to admissions of breach of the legal standard of care: Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 at [25]. The two “dangerous” exercises

The remaining particulars relate specifically to the two so-called dangerous exercises. Particular (d) alleges that the exercises were dangerous having regard to Mr Wilson’s age, level of fitness and condition. Emphasis was placed on particular (l), which alleges that Vision failed to provide adequate instruction in relation to exercise technique and form with respect to those exercises.

As to the leg press exercises, it is alleged specifically that Vision: “(e) required the Plaintiff to lift 200 lbs on the leg press machine; (k) [required and/or recommended] the Plaintiff undertake increments in resistances for the leg press exercise that were excessive.”

Once it was accepted that the weight pressed by Mr Wilson was 200 pounds and not 200 kilograms, the case put on his behalf rested principally on the contention that the intensity of that exercise was too high for Mr Wilson. As to the separate complaint about Mr Wilson’s posture on the machine, I am satisfied, as already indicated, that that was a function of Mr Wilson’s height and the structure of the machine itself.

As already noted, a difficulty with this aspect of Mr Wilson’s case is that “intensity” is a matter of perception. I accept that, for Mr Wilson, the exercise was very challenging and that he felt unable to push the weight out at the start of the exercise without Mr Draffin’s assistance. However, I am not satisfied that a reasonable personal trainer in Mr Draffin’s position should have known to stop at 190 pounds. In my view it is hindsight, and not reasonable care, that identifies 200 pounds as potentially an excessive weight for Mr Wilson at that time.

The empirical indications for Mr Draffin were that Mr Wilson was progressing satisfactorily. As noted by Mr Wilson in his evidence, it was Mr Draffin who chose the weights. However, it was common ground that, on occasions, Mr Draffin asked Mr Wilson whether the weights were okay. Mr Wilson did not agree that Mr Draffin had made that inquiry on every occasion, but he accepted that Mr Draffin did so on occasions, and that he was with him continuously for the full half hour session, available to answer any questions during that time.

More significantly, if Mr Wilson was finding the leg press exercise too challenging, there is certainly no evidence that he said so to Mr Draffin. He simply did what was asked of him by the trainer, as disclosed in the following exchange in Mr Wilson’s cross-examination (at T68): “Q. He chose [the weights] but it was open to you to say I don't want any more, wasn't it? A. No. Q. I beg your pardon? A. No. Q. Why? A. No. The whole point of having a personal trainer is to challenge you to exceed your capabilities. It would have been an act of failure on my part to refuse to do what the trainer was asking me to do. Q. Thank you. So then we go to the following weeks. There seems to be a notation 26.3 there. Do you see that there? A. Yes. Q. We have a series of 170s? A. Yes. Q. No change. Did you explain to Mr Draffin that that was too heavy? A. No. Q. Then we have a notation there which appears to read 2.4.08? A. Yes. Q. You have a series of leg presses of 190? A. Yes. Q. Did you complain to Mr Draffin about the trouble you were having with that? A. No. But it was around that time if not the previous time when I had, when it was impossible for me to start the process without the assistance of the trainer. Q. So-- A. But the whole point of attending this personal training programme was to be challenged and complaining was completely futile. Q. So no matter what you were prescribed you were going to try it, is that right? A. Precisely.”

It was submitted on behalf of Mr Wilson that his case is encapsulated in the phrase “too hard, too soon”. I am not satisfied, however, that a reasonable personal trainer in the position of Mr Draffin ought to have known that asking Mr Wilson to push 200 pounds on the leg press machine on 5 April 2008 was pushing him too hard, too soon. That, it seems to me, is a proposition derived entirely from hindsight reasoning. I am not satisfied of any breach of duty in relation to the leg press exercise.

The particulars relating specifically to the medicine ball exercise are that Vision: “(f) required the Plaintiff to twist from side to side whilst sitting up from a prostrate position and catching a heavy medicine ball; (n) in respect to the medicine ball exercise failed to ensure the Plaintiff performed the exercise motion in a controlled manner and at a slow and constant speed; (o) in respect to the medicine ball exercise failed to ensure the weight of the medicine ball was not such that it would compromise the Plaintiff’s ability to perform the exercise with the spine in neutral position and/or in a controlled manner and/or at a slower constant pace.”

For the reasons already indicated, I am not satisfied that Mr Draffin required Mr Wilson to do a sit-up, as assumed by Mr Tzarimas. It was submitted on behalf of Mr Wilson that the exercise was nonetheless inappropriate due to the introduction of a medicine ball and a twist. The principal basis for that contention was that those variations are not recognised or recommended either by the Australian Institute of Fitness or within Vision.

It is correct that neither of the variations introduced by Mr Wilson was expressly prescribed in Mr Wilson’s written training plan. However, Mr Draffin gave evidence (at T326) that when he did his personal trainer’s course at the Australian Institute of Fitness, there was a half day session when they went through “all the different types of exercises you can do and how you can make them easier for clients and harder for clients”. One of the ways of making an exercise harder was to do crunches with a weight, which he considered to be the next logical step up in terms of making the exercise a bit more challenging.

Mr Draffin said (at T338) that adding a ball was his way of adding a weight to the exercise. He said “it makes it a little bit more challenging, but it also means that your abs get stronger and you can go through the levels a bit faster. It was common knowledge to me that that’s a way you can add a bit of resistance and a lot of other people in the studio were also doing it, so I thought it would have been okay to do it”. Mr Draffin stated that he still uses that exercise with beginners, once they have completed the “starter abs” (the supine floor hold).

Mr Draffin stated that the movement from side to side was another progression that he had also observed in his course and at Vision (T350.45). He said that he would not describe it as a twist, but rather a crunch to the left and a crunch to the right.

Assuming that the exercise Mr Wilson was requested to do was a crunch, Mr Tzarimas’ evidence has not satisfied me that it was unreasonable, by reference to the normative standard of care in a personal training studio, to introduce the additional challenge of the medicine ball and the side to side movement. They were progressions that Mr Draffin had been taught during his course to become a personal trainer. He had also seen them used by other trainers in the gym at Vision.

Even if the exercise Mr Draffin required Mr Wilson to do involved a sit-up with the medicine ball on 5 April 2008, I am not satisfied that that would have been negligent. I do not accept that Mr Tzarimas’ evidence on this issue reflects the standard of care of a reasonable personal trainer. His conclusion rested on the fact that, following a review of standards in the fitness training industry conducted in 2000, sit-ups were not specifically included in the range of recommended abdominal exercises. I do not think that is a sufficient foundation for a conclusion that it is negligent to ask a person like Mr Wilson to try to do one at all. Mr Tzarimas’ evidence included the following exchange: “HER HONOUR: Do you say it's not a conventional exercise? Are you saying that the catching of a medicine ball and twisting from side to side is not a conventional exercise? TZARIMAS: This is the question I've been waiting for, your Honour. In 2000 the fitness industry, the training package underwent a large review. That review involved a number of stakeholders providing input to the Industry Skills Council which is a division of the Vocational Education Training Board at the time, now known as DEWA. During the consultation process there was a lot of feedback provided to the consultants who were developing the new training package, and concerns were raised over the level of - the relatively low or poor standards in the fitness training industry and specific exercises that in a way was considered unregulated so they wanted to develop a safer and more effective industry. As a result of that consultation process, a new training package was introduced and it moved from being a simple fitness leaders' course which involved an average 30 hours of face-to-face maximum teaching, and a fixed time of 30 hours of practical experience in order to become certified. HER HONOUR: I'm sorry to interrupt you but your answer was addressed to whether the exercise was conventional. TZARIMAS: That's right. HER HONOUR: 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. TZARIMAS: 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.”

Even accepting that a sit-up with a twist is not “a recommendation within the fitness industry”, I am not satisfied that it would have been negligent for Mr Draffin to see whether Mr Wilson could undertake that exercise at the stage that he had reached. Mr Draffin explained that he had identified abdominal strength as a weakness in Mr Wilson and he was looking for ways to improve his fitness in that area. He said that the exercise was tried once, but that Mr Wilson couldn’t do it, so they went back to doing crunches. I am not satisfied that, in taking that approach, Mr Draffin took a risk that a reasonable personal trainer in his position would not have taken. As noted by Mr Gracie in his submissions, intense physical exertion was the object of Mr Wilson’s training. Mr Tzarimas’ opinion on that issue is, in my view, a counsel of perfection that does not reflect the normative standard of care imposed on personal trainers in that context.

For those reasons, I am not satisfied that there has been any breach of contract or breach of duty of care on the part of Vision or Mr Draffin. Causation

In case the conclusion I have reached on the question of breach of duty is wrong, it is appropriate to consider the question of causation. Counsel for Mr Wilson referred me in that context to the useful discussion of the applicable principles in the judgment of McDougall J (with whom McColl and Bell JJA agreed) in Nguyen . In that case, McDougall J considered the common law test and the principles stated in s 5D and s 5E of the Civil Liability Act . His Honour concluded, adopting the view expressed by Ipp JA in Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 at [89], that the principles embodied in s 5D of the Civil Liability Act “are in accord with the common law”.

Counsel for Mr Wilson submitted, to similar effect, that the provisions of Part 1A of the Civil Liability Act “do no more than restate the common law principles”. He citied the statement of Ipp JA in Ruddock v Taylor referred to by McDougall J, and Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134.

In his written submissions filed on behalf of Vision, Mr Gracie accepted that questions of causation under s 5D and s 5E have some similarities with the common law. However, Mr Gracie noted that, under the common law, the tort of negligence is made out by a finding of duty of care, a breach of that duty and damage caused by the breach. He submitted that s 5D(1)(b) sets the Court upon a further inquiry. That section presupposes a finding of negligence and requires the Court to determine whether the scope of liability for that negligence is appropriately extended to the negligent party. Mr Gracie submitted “in this sense the common law has already been exhausted and the statute imposes an additional question to be considered by the Court”.

Mr Gracie implicitly acknowledged that his submission on that issue is not reflected in the principles stated by McDougall J in Nguyen at [69], where his Honour suggests that the “normative considerations” that inform the application of the statutory “scope of liability” test are similar to the considerations that arise at common law, such as the principle of novus actus. Mr Gracie noted, however, that those remarks of McDougall J were obiter. He submitted that the “phraseology” of s 5D(1)(b) is wide and does not articulate a concept known to the common law.

There is force in Mr Gracie’s submissions on that issue. However, I must approach this issue with caution. After the conclusion of the hearing, Mr Wilson sought leave to put on written submissions. In accordance with leave granted, lengthy written submissions were filed, and those submissions were responded to by even lengthier further written submissions from the defendant. It was in those submissions that the present point was put in detail (it had been raised briefly in oral submissions). A dispute then arose between the parties as to whether the proceedings should be relisted to enable the plaintiff to address alleged errors in the defendant’s further submissions. Ultimately, after several weeks had passed, I was informed that the plaintiff no longer sought to have the matter relisted, because that course was opposed by the defendant. Accordingly, I have not heard any submissions in response to Mr Gracie’s written submissions on this issue, beyond the original submission put on behalf of Mr Wilson that Part 1A does no more than to re-state common law principles.

In any event, even if Mr Gracie’s contention is right, having regard to the conclusion I have reached on the question of breach of duty, it makes no sense for me to undertake the “further inquiry”. Section 5D(1)(b) presupposes a finding which I have not made. It would, in my view, be entirely artificial for me to embark upon the task of determining any “scope of liability” issue raised by that section in those circumstances. Accordingly, I propose to confine my consideration to the question of factual causation. Factual causation

As to the common law test, I gratefully adopt the statement of the relevant principles set out in paragraphs [58]-[64] of the judgment of McDougall J in Nguyen . Mr Gracie did not submit that s 5D(1)(a) poses any different test from that which is required to be applied at common law: and see Nguyen at [67].

As noted in Nguyen at [60], expert evidence may assist the Court to find causation in fact. In the present case, that assistance was a mixed blessing. The evidence of the experts relied on by each party on the issue of factual causation was logical and well reasoned yet diametrically opposed. Two of the experts gave their evidence concurrently after conferring with one another outside Court in the absence of lawyers. They were not able to reach agreement on any of the questions identified for their consideration. In short, Dr Hopcroft, a general surgeon specialising in orthopaedics, believes “without doubt that the forceful exercises described by [Mr Wilson] are in fact the cause of [Mr Wilson’s] current significant lumbo-sacral disc pathology which is yet to be adequately resolved”. Dr Matheson, a consultant neuro-surgeon called on behalf of Vision, was similarly untroubled by doubt in completely dismissing the existence of any causative relationship between the disc injury and the exercises Mr Wilson did under the supervision of Mr Draffin (T184.17).

Each of those gentlemen presented, in my view, as an intelligent, reasonable and independent witness who was eminently well qualified to give the opinion he expressed. In addition, there was a report from Dr Conrad (who was not required for cross-examination) that supported Mr Wilson’s causation case and a report from Dr Maxwell (who gave evidence but not concurrently with the other doctors) that supported the case put by Vision.

Before considering those competing opinions, it is necessary to determine one factual issue. It was Mr Wilson’s case that he had no history of back pain. That appeared to be contradicted by a note taken by Mr William Lam, a massage therapist seen by Mr Wilson on 22 April 2008. The note stated: “History of chronic lower back pain problems about six months ago, client confirmed he did not require seek medical treatment advice and confirmed no history of disc bulge or protrusion or any spinal problems.”

Mr Wilson denied any history of chronic lower back pain. He said (at T29.18) that he had never had any lower back pain prior to the incident on 5 April 2008. I accept his evidence on that issue. As submitted on behalf of Mr Wilson, the history recorded by Mr Lam is contrary to all other medical histories in evidence in the proceedings.

Mr Lam’s notes recorded a brief discussion between Mr Wilson and Mr Lam in preparation for massage therapy. In my view, there is ample scope for confusion in such circumstances. I note that the period of “six months” referred to in the notes coincides with the timing of Mr Wilson’s knee operation, and it is possible that confusion was generated by reference to that history. In any event, it is not necessary for me to determine that issue. However the confusion arose, I am satisfied that Mr Wilson did not in fact tell Mr Lam that he had been suffering from back pain for a period of six months. I am further satisfied that, so far as he recalls, Mr Wilson had not previously suffered lower back pain. Of course, it does not necessarily follow that there was no degenerative change in his back at that time.

The one thing on which Dr Hopcroft and Dr Matheson agreed was that Mr Wilson had a right-sided prolapse of the L4/5 disc with associated nerve compression causing pain. In his first report, Dr Hopcroft attributed that injury to the leg press exercise and the medicine ball exercise: “I believe this patient suffered his intervertebral disc protrusion by not being prepared in any reasonable or adequate way by a core muscle strengthening programme prior to being directed to commence leg presses of 200kg followed by sit-up exercises and the catching of a medicine ball, twisting from side to side and returning it to his personal trainer. Both these activities are highly threatening to the intactness of the lumbar discs and has without doubt been the cause of an acute L4/5 intervertebral disc protrusion in an otherwise healthy and normal lumbosacral spine.”

Dr Matheson was provided with Dr Hopcroft’s report. He noted Dr Hopcroft’s view that the L4/5 disc lesion was caused by the supervised gym activity on 5 April 2008 and said “while I would have some doubts about this, there is certainly no other history to go on.” In a second report, he expressed the opinion that neither the leg press nor the medicine ball caused the intervertebral disc protrusion. When he was cross-examined at the hearing, Dr Matheson explained that, in the first report, he was being polite and that he should have said that he disagreed with Dr Hopcroft.

It was submitted on behalf of Mr Wilson that Dr Matheson had changed his mind on the issue of causation. I can easily understand the basis for that submission. Dr Matheson expressed himself in obscure terms in his first report. However, I was satisfied, after hearing his explanation as to what he meant in that report, that he has consistently been of the view that the exercises undertaken by Mr Wilson on 5 April 2008 were not the cause of the disc lesion.

After he was seen by Dr Matheson, Mr Wilson was seen by Dr Maxwell on behalf of the defendant. Dr Maxwell stated that about 50% of disc protrusions commence spontaneously with no history of any specific injury. He concluded that, in the case of Mr Wilson, in the absence of a specific acute episode of back or leg pain, the disc protrusion was idiopathic.

Dr Hopcroft disagreed. He stated: “It is important to note that this patient had no pre-existent history of back pain or sciatica prior to undertaking two dangerous activities namely the medicine ball abdominal crunching exercise routine and the 200kgs leg press on 5 April 2008 and although he did not develop back pain and sciatica at the moment of that activity, such a mechanism of injury is without doubt the cause of the patient’s significant L4/5 intervertebral disc protrusion. Quite often disc prolapse does not incapacitate a patient for 24 to 48 hours, a fairly classical comment being of a patient describing an injury, going home to bed but being unable to get out of bed the following day. Such was the case with this patient becoming intractably incapacitated within 24 to 48 hours of injury.”

At the time he prepared that report, Dr Hopcroft was still labouring under the misapprehension that the weight pressed on the leg press machine was 200 kilograms. In a further report dated 14 May 2009, Dr Hopcroft said: “I do not believe that the weight involved in his leg press was the significant cause of incurring his back injury and disc pathology and that it was in fact caused mainly by the acute forward flexion strain of this lumbosacral spine while catching a medicine ball, sitting up and rotating to the right and left. In fact the further information of the leg press weight convinces me even further that the primary cause of this patient’s back injury was the sit-up manoeuvre using a medicine ball and not the leg press in isolation. The leg press exercise was also a significant contributing factor to the protrusion of the disc.”

Dr Hopcroft expanded upon those views in a further letter dated 9 June 2009. In that letter, he stated that the strains applied to the back by the horizontal leg presses were “virtual vertical compression forces across each lumbo-sacral disc” and therefore “of less significance than sit-ups which apply irregular forces across an intervertebral disc.” His conclusion on that issue appears to have been that the leg press exercise was not irrelevant, and could well have caused a capsular tear, but that the significant forces were those involved in the “sit-up while catching a medicine ball”. In the written submissions filed on behalf of Mr Wilson, it was acknowledged that Dr Hopcroft ultimately favoured sit-ups as the probable cause.

Dr Conrad expressed the opinion that the medicine ball exercise was responsible for the disc disruption. However, his opinion was expressed in brief terms and without any exposition of the reasoning that led him to that conclusion. I do not think I should attach much weight to that opinion.

Similarly, Dr Kwok, a neuro-surgeon stated: “[Mr Wilson] was starting on gym exercises in April and on one particular day, he was doing leg presses, up to 200 kilograms. I think the exercise that caused the problem was a sit-up with a twisting holding onto a Swiss ball.” That report does not enable me to evaluate the reasoning by which Dr Kwok reached that conclusion and carries little weight, in my view.

I should also note that the report of Mr Tzarimas addressed the question of causation, and Mr Wilson placed reliance on that opinion. In my view, however, Mr Tzarimas was manifestly not qualified to express a medical opinion as to the probable cause of Mr Wilson’s injury.

I am not satisfied on the balance of probabilities that the leg press exercise was a cause of Mr Wilson’s injury. During the concurrent evidence, Dr Hopcroft acknowledged that the medicine ball exercise was the “much more likely cause” (T190.14). It seemed to me, at the conclusion of his evidence, that he really put the matter no higher than to say that the leg press exercise may have made a contribution to the injury, but that the medicine ball exercise was the significant cause (see T194.39).

Dr Matheson gave a compelling explanation as to why he did not accept that the leg press exercise caused the injury (at T177). In light of that evidence, together with Dr Hopcroft’s equivocation on that issue, I am not persuaded that the leg press exercise was a cause of the injury.

In relation to the medicine ball exercise, Dr Hopcroft stated during the concurrent evidence session (at T194.39): “Well Dr Matheson and I agree on that, that lifting of the medicine ball and flexion, rotating is in fact the described mechanism and a well-known mechanism of back pain which is proven substantially by radiology to disc eruption.”

As submitted on behalf of Mr Wilson, Dr Matheson’s evidence suggested that, in fact, he only agreed in part with that proposition. However, his reasoning rested heavily on the delay between the alleged date of the injury and the time when Mr Wilson experienced sciatic pain. Dr Matheson acknowledged that the medicine ball exercise posed a greater theoretical risk because there was a “rotatory component” put into it, but said that the increase was only slight.

As noted in the plaintiff’s written submissions, Dr Matheson stood alone in his view as to the significance of the delay in noticing symptoms. Dr Maxwell’s evidence on that issue was (at T386.22-T386.36): “Q. Doctor, just as a matter again of general principle, do you often see patients who have some delay between the initiating event or the protrusion occurring and the development of the symptoms? A. Sometimes it is very, very difficult to say because at least half the patients I see can't recall any specific incident when the disc protrusion occurred. About another half will notice a pop and a sharp pain in their back and that pain may cause immediate sciatica or they may have back pain for a couple of days and it can progressively get worse, but at least half of the patients I see in my practice, and my practice is mainly treating backs, about half of them have got no idea of when the protrusion occurred. Q. So it may be, for example, that a patient on a Monday has a protrusion for whatever reason and that on the Tuesday they have got back pain in that area and on the Wednesday the sciatica starts? A. That may occur, yes.”

The resolution of the issue whether the medicine ball exercise (be it a crunch or a sit-up) was a cause of Mr Wilson’s injury must rest, in this case, on a scrupulous application of the standard of proof. In Nguyen at [63], McDougall J said: “Where B (not having occurred before) closely follows A, and where there is expert evidence to suggest that an event of the nature of A may cause a result of the nature of B, then the inference of causation may be drawn if, on the evidence, there is no acceptable alternative cause available. See Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724; and note the comments of Mahoney JA on this topic in X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26 at 33. I would add that the same inference may be available if ordinary human experience, rather than expert evidence, suggests that “A” events have been know to cause “B” results, and if there is no evidence of any other acceptable cause.”

In the present case, there is some evidence of another “acceptable cause”, namely, that the injury was idiopathic. However, the fact that Mr Wilson did not experience sharp pain does not preclude the twisting motion as the cause. It could easily have been something else that caused Mr Wilson’s disc to prolapse, but equally it could easily have been the twisting motion. The sequence of events described by Mr Wilson points to the twisting motion as the likely material cause.

I have not found this issue easy to resolve. The evidence of Dr Matheson and Dr Maxwell caused me to have some doubt (perhaps even a reasonable doubt) as to the mechanism of the injury. However, measured on the balance of probabilities, I am 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 (at T199).

Dr Maxwell stated that disc protrusion does not require “lots of force”. It is his professional opinion that disc protrusion is largely a genetically based occurrence. He cited studies of identical twins indicating that the degree of disc degeneration in their spines has nothing to do with their occupations. His reasoning on that issue was compelling, and it may well be that there was degeneration in Mr Wilson’s spine and that disc protrusion was an event that was likely to occur at some point. In my view, however, that does not derogate from the probability that the twisting component of the medicine ball exercise was a material cause of its happening when it did.

For those reasons, I am satisfied that the injury was caused or materially contributed to by the medicine ball exercise. Orders

The orders are: (1) That there be a verdict and judgment for the defendant. (2) That the plaintiff pay the defendant’s costs of the proceedings.