Duty of care breached and the wrist is history10 March 2020 | Insurance Issues
An appeal in the ACT Supreme Court has found that injuries sustained by a plaintiff during an “aerial sling” exercise class were the result of negligence by employees of the defendant company, iSpin.
- Whether iSpin breached its duty of care to the plaintiff by failing to give her proper instructions, not directing her to use a “spotter” or suggesting she use a thick crash mat during an exercise class.
This matter is an appeal from an earlier decision in the ACT Supreme Court (see our previous case note for details). On 11 February 2014, Carrie-Ann Cornwall (plaintiff) was participating in a sling class, where participants take part in exercises using a fabric sling which 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 wrists. The plaintiff commenced proceedings against Sophie Jenkins as trustee for the iSpin Family Trust (defendant) in the ACT Supreme Court.
The decision at trial
At first instance, the plaintiff gave evidence that she had been attending classes for approximately a year. In that time, she had only been provided with a yoga style mat for fall protection, as opposed to a thicker crash mat. She also gave evidence that she had never seen anyone use a “spotter” to assist with manoeuvres using the sling.
In considering whether there had been a breach of the defendant’s duty of care, the trial judge found that although there was a foreseeable risk of harm which was not insignificant, the plaintiff could not establish that the defendant did not take reasonable precautions by not, for example, ensuring that spotters were used, or requiring the use of thicker crash mats.
The issues on appeal
- Whether the defendant failed to take reasonable precautions by not insisting on the use of thick crash mats, thereby breaching its duty of care to the plaintiff.
- If so, whether there should be a deduction in the plaintiff’s damages for contributory negligence.
The decision on appeal
The Court of Appeal found 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. Based on expert evidence concluding that the thick crash mats would have reduced the likelihood of injury, it was held that a reasonable person in the position of the defendant would have provided matting adequate to protect class participants from injury by reason of a fall from the greatest anticipated height, having regard to the manoeuvres to be undertaken.
A finding of contributory negligence was also 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.
Implications for you
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 (ie. the use of thicker crash mats in this instance).