On 11 February 2014, Carrie-Anne Cornwall (the plaintiff) was participating in a sling class, where participants take part in exercises using a fabric sling that is attached to the ceiling alongside a pole. When the plaintiff was performing a particular manoeuvre, she fell to the ground, breaking both of her wrists1 (the accident). The plaintiff commenced proceedings against Sophie Jenkins as trustee for the iSpin Family Trust (the defendant) who ran the fitness class and occupied the premises.
This article was originally published in the Lexis Nexis Health Law Bulletin Volume 28 No 4.
Supreme Court proceeding
The plaintiff gave evidence that she had been attending classes for approximately a year prior to the accident2. She claimed that in her year of attendance, she had only ever been offered a thin yoga mat as opposed to a thicker crash mat that provides greater protection in the event of a fall.3 The plaintiff also stated that she had never seen anyone use a 'spotter' to assist with manoeuvres using the sling. A friend of the plaintiff, who was a witness to the accident, alleged that the instructor told the students to let go of the carabiner at the top of the sling whilst performing the manoeuvre.4
The instructor gave evidence on behalf of the defendant. Her recollection was that the plaintiff had performed the move on one occasion prior to the accident, and that she was spotting someone else when the accident occurred, so did not see the accident.5 She agreed that the nature of the manoeuvre, and the sling’s material made it difficult to successfully complete it without a spotter helping place the student’s foot back into the sling.6
She stated that students were specifically instructed to not let go of the carabiner, and to use spotters when performing this exercise.7 Both thick and thin mats were provided, and students could choose which type of mat to use. In this instance, the plaintiff chose to use the thinner mat.8
The plaintiff relied on expert evidence of Ms Armour, a work health and safety, human factors and ergonomic risk consultant. She was of the view that if the defendant had provided an appropriate crash mat, and required that the manoeuvre be performed at ground level first until skill was developed, it was very likely that any injury sustained by the plaintiff would have been minimal — in the form of a sprain or soft tissue injury only.9
The defendant tendered expert evidence from Dr McIntosh (a biomechanics and ergonomics consultant), who considered that the defendant had appropriate harm minimisation mechanisms in place, and provided adequate instructions.10 The defendant also relied on evidence from Mr Armanasco, a consultant in workplace safety who also had gymnastic training. He considered that the defendant had discharged its obligations to the plaintiff, in that the plaintiff had been appropriately instructed in how to perform the manoeuvre, she was instructed to use a spotter and matting was available for her to use. He gave evidence that it was still possible for injury to occur, even with substantial matting in place.11
Justice Mossop found that the elements of s 43(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT) were satisfied. He found that it was reasonably foreseeable that a student would suffer injury if she fell, and while the risk of injury was low, it was not insignificant.12 He found, however, that there was no breach of duty by the defendant on the basis, inter alia, that:
- the risk of injury would be obvious to a reasonable adult and there was no requirement for the defendant to specifically provide a warning to the plaintiff,13
- while the use of a yoga mat provided less protection, the evidence does not permit a conclusion that the insistence on the use of one or mats, or a thicker mat, was a measure that a reasonable person in the position of the defendant would have taken,14
- the instructor had instructed the students to use a spotter, and the instructor was not required to supervise (adult) students to prevent them acting against her instructions.15
In the event his findings about breach of duty were wrong, Mossop J also considered the issue of causation. In this regard, he found that it was not possible to conclude that the plaintiff’s injuries would have been avoided if crash mats were used, in the absence of medical evidence to that effect, and a clear understanding as to the mechanism of the accident.16 He was also not satisfied that the absence of a spotter was a necessary condition for the happening of harm.17
Court of Appeal proceedings
The plaintiff (at first instance) appealed the Supreme Court decision18, with the essence of her appeal being that the primary judge:
- erred in finding that the defendant (at first instance) had not breached its duty of care by failing to require the plaintiff to use a crash mat,
- and in the alternative, that any breach of duty had not caused her injuries.19
The Court of Appeal unanimously agreed that the primary judge erred in determining that the evidence did not establish a breach of the defendant’s duty of care, by failing to insist on the use of crash mats while the plaintiff was attempting to perform the manoeuvre.20
The judges found that the risk of fall was, as the primary judge concluded, plainly foreseeable, and the expert testimony established that the thin yoga mats provided were inadequate to protect a person performing the manoeuvre if she fell from the top of the sling. They found that a reasonable person in the position of the defendant would provide matting adequate to protect a participant from injury by reason of a fall from the greatest height anticipated, having regard to the activities being undertaken.21
They also disagreed with the primary judge’s conclusions on causation, finding that, bearing in mind the expert evidence, on the balance of probabilities, the plaintiff’s injuries would have been avoided, or significantly reduced, by the defendant requiring the use crash mats in the fall zone beneath the sling.22
A finding of contributory negligence was however made on the basis that the plaintiff failed to follow the instructions provided to her, and failed to use a spotter. Her damages were reduced by one-third as a result.23
Takeaways
Despite the fact that the plaintiff had difficulty establishing the exact mechanism of the fall and had issues with witness credibility, she was able to succeed on appeal on the basis of the expert evidence. This case serves to reinforce the importance of expert evidence in cases which turn on their own facts, providing an avenue for the court to determine what would have occurred if certain precautions were taken (i.e. the use of thicker crash mats in this instance).
1 Cornwall v Jenkins as trustee for iSpin Family Trust [2019] ACTSC 34; BC201901016.
2 Above, at [3].
3 Above n 1, at [6].
4 Above n 1, at [26].
5 Above n 1, at [32].
6 Above n 1, at [71].
7 Above n 1, at [34].
8 Above n 1, at [84].
9 Above n 1, at [50].
10 Above n 1, at [52].
11 Above n 1, at [56].
12 Above n 1, at [76].
13 Above n 1, at [81].
14 Above n 1, at [88].
15 Above n 1, at [95].
16 Above n 1, at [105].
17 Above n 1, at [107].
18 Cornwall v Jenkins as trustee for iSpin Family Trust [2020] ACTCA 2; BC202000862.
19 Above n 18, at [2].
20 Above n 18, at [57].
21 Ibid.
22 Above n 18, at [61].
23 Above n 18, at [64].
