Harrison v The Actors Workshop Australia Pty Ltd
[2014] QDC 40
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- Unreported Judgment
- Harrison v The Actors Workshop Australia Pty Ltd[2014] QDC 40
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Harrison v The Actors Workshop Australia Pty Ltd[2014] QDC 40
Harrison v The Actors Workshop Australia Pty Ltd[2014] QDC 40
DISTRICT COURT OF QUEENSLAND
CITATION: | Harrison v The Actors Workshop Australia Pty Ltd [2014] QDC 40 |
PARTIES: | GAVIN HARRISON v THE ACTORS WORKSHOP AUSTRALIA PTY LTD |
FILE NO/S: | 2020/13 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 5 March 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24, 25, 26 February 2014 |
JUDGE: | Reid DCJ |
ORDER: | Judgment for the defendant. The Plaintiff is to pay the defendant’s costs of and incidental to the action to be assessed on a standard basis. |
CATCHWORDS: | PERSONAL INJURY – whether requiring students to engage in slow motion tag unreasonable – purpose of activity – credit of plaintiff – causation |
COUNSEL: | Plaintiff appearing in person. R Ashton for the defendant. |
SOLICITORS: | Plaintiff appearing in person. Thynne & Macartney for the defendant. |
Introduction
- [1]The plaintiff claims $749,114.99 damages resulting from physical injury he suffered during the course of his attending evening classes as part of a Certificate IV in Film and Television Acting conducted by the defendant. It is not disputed that on 13 March 2012 the plaintiff fell during an improvisation class at the defendant's academy, suffering a fracture dislocation of his left elbow. The plaintiff alleges the defendant was negligent and in breach of an obligation owed pursuant to the Workplace Health and Safety Act 2011.
- [2]The defendant denies liability, alleges contributory negligence, and says that the plaintiff’s claim for damages is grossly overstated.
Background
- [3]The defendant is an accredited training organisation. The plaintiff enrolled in the Certificate IV course conducted by the defendant from premises at a hall in Trinity Lane, Woolloongabba. The course commenced on 30 January 2012. He was to attend classes three nights per week. Classes generally ran from 6.30 to 8.30 p.m.
- [4]On the evening of 16 March 2012 the plaintiff was one of ten students undertaking the improvisation class, conducted by an employee of the defendant, Emma Randall. The students were all adult persons and of both sexes.
- [5]The classes were conducted in a part of the hall. A number of items were stored on the periphery of the activities area within the hall. The defendant says that the space allocated for the improvisation class was very limited, being approximately 7.5 metres long and only about 2 to 3.5 metres wide of useable space, as shown in Exhibits 1 and 2. I prefer the evidence of a former student of the college, Loretta Kung, as to the dimensions of the space. Ms Kung is a qualified engineer and has no obvious interest in the outcome of the case. As will later become apparent, I have real reservations about the plaintiff’s reliability and credibility as a witness. Ms Kung’s diagram of the area where the activity was conducted is page 200 of Exhibit 40. It was about 10 metres long and from about 5-7 metres wide but was irregular in shape and had items stored in the periphery.
- [6]The plaintiff’s statement of claim does not clearly enunciate his case, but in essence he alleges:
- The defendant conducted the Certificate IV in Film and Television Acting in which the plaintiff enrolled in January 2012.
- As part of that course, he and nine other students engaged in an activity called “slow motion tag” as part of the improvisation class.
- The activity was conducted in an irregularly shaped space on the perimeter of which a number of objects were stored including a whiteboard and portable stairs to give access to a stage. This space consequently was significantly restricted, having regard to the nature of slow motion tag.
- Prior to the activity commencing, students were told:
- (a)to run as fast as possible to avoid being tagged when told to do so;
- (b)when told to do so by the teacher, were to then move as slowly as possible and continue to avoid being tagged.
- The game alternated between maximum and minimum speeds with rapidly varying and random duration of each as determined by the teacher.
- Participants were given no set direction in which to move during the activity.
- The activity was not a core skill required to become an actor.
- He participated in the activity in accordance with the instructions of the teacher.
- During a full speed segment, he tripped on an unidentified but firm and rigid object and fell forward at high speed, injuring his left arm which he put out to break his fall.
- The activity area was cluttered by objects stored on the periphery of the space.
- He was unable to identify the precise mechanism of his fall, which could have arisen from his striking a moveable whiteboard, moveable stairs or the legs of another student.
- The cause of his falling was the negligence of the defendant. He identified in his pleadings and his address to me the essential feature of the defendant’s negligence as instructing the 10 students to run “as fast as possible” within a confined space with obstacles on the perimeter and no control over the direction or speed of students running.
- [7]He did not identify any relationship between the Workplace Health and Safety Act 2011 and the injury he suffered or indeed identify how that Act related to his injury. He did, in his pleading, refer to a workplace health and safety code of practice “Managing the Risk of Falls at Workplaces” and said to me that the defendant was negligent in not identifying the foreseeable risk of his falling and then not eliminating that risk, but otherwise did not refer to the Act.
Plaintiff’s Credit
- [8]Before turning to the evidence about the incident, I shall first refer to an important issue of credit concerning the plaintiff.
- [9]The determination of the circumstances of the plaintiff’s fall and whether the defendant is liable in damages depends in part on whether I accept the evidence of the plaintiff on the one hand or that of other witnesses, in particular of his teacher, Ms Emma Randall, on the other.
- [10]The plaintiff’s credit was scarcely enhanced by consideration of evidence concerning his business affairs.
- [11]During his evidence, he said (T1-46 L10) that the biggest impact of his injury was on his business. He said it was “more or less a death blow to my business”. Subsequently and after cross-examination as to a number of issues to which I shall shortly refer, the following evidence was given at (T1-115 L26/44):
‘MR ASHTON: And do you remember, this morning, telling his Honour that the biggest effect of the injury was the business impact, “because I was the only employee” ---?--- Mmm.
--- “my wife couldn’t do the activities”?--- Yes.
“It was a death blow to my business”. Do you remember those words?--- Not really, but yeah, that would sound about right.
“Death blow to my business”. Now that’s simply false also, isn’t it?--- It’s overly descriptive, yes.
It’s false?--- Yes.
HIS HONOUR: So you’re accepting that that’s a false description?--- Yes, I’m accepting that’s a false description.
MR ASHTON: And it’s a description you gave on oath to his Honour this morning, is that right?--- Yes, I accept that.’
- [12]The circumstances that led to that telling admission involved an examination of his taxation records and of his dealings with the ACCC and subsequent court action involving that organisation.
- [13]In his statement of loss and damage (Tab 10, Exhibit 40), the plaintiff claimed:
- that in the period January 2009 to March 2012, the date of the accident, companies owned and operated by him, Pro Teeth Whitening (Aust) Pty Ltd (“Pro Teeth Whitening”) and NaturaMed Health Pty Ltd (“NaturaMed”), had total gross income of $593,363 and that he “earned approximately 70% of company income in benefits”;
- that in the period from March 2012 to July 2013 (the date of the SLD was 11 July 2013) the total gross income of the two companies was $117,561 and that as before the accident, he earned approximately 70% of that income in benefits;
- that he claimed future economic loss “estimated at 20% reduction in average income” until age 65.
- [14]It can be seen that in the three years and two months from January 2009, when he says he returned to Australia and commenced his businesses through those two companies, the average annual gross income of his business was $187,358. 70% thereof was therefore $131,150 his estimated income by way of benefits. For the period of one year and four months after the incident, the average annual turnover was only $88,391, 70% of which amounts to $61,873. If this reduction were in fact due to the effects of the accident, this would support his claim for at least a 20% reduction in average net income as a result of the incident. Indeed, it might be said to be a 50% reduction.
- [15]Two issues arise with respect to that method of estimating his loss attributable to the accident.
- [16]As I have indicated, the plaintiff attributed 70% of the gross income of the business as income earned by him by way of benefit. In evidence he said, for example, that the business paid the whole of the rent on the home where he and his family lived, paid for his car which he used for business but also privately, and paid for internet, phone, postage and other matters which at least in part he also used privately.
- [17]Examination of the company records do not support his claim that 70% of the company’s gross income was for his benefit. Exhibits 7 and 8 were the balance sheets and profit and loss statements of the two businesses. For the year ended June 2010 the profit and loss of Pro Teeth Whitening shows, inter alia, the following expenses which he said were for his benefit:
due and subscriptions | $2,078.18 |
internet | $1,109.49 |
Jeep vehicle expenses | $15,797.69 |
car maintenance/repairs | $1,458.34 |
rent | $16,426.86 |
telephone | $2,942.00 |
TOTAL | $39,812.56 |
- [18]It can be seen that this represents only 20.3% of the gross turnover for that period of $284,663.46 and of course some, perhaps much of the expenditure would undoubtedly have been for business purposes, even if I were to accept the plaintiff’s evidence that some was for private use. A similar analysis can be conducted for each of the 2009, 2011 and 2012 financial years and for the records of NaturaMed.
- [19]The plaintiff’s credit was also hardly advanced by his claiming privilege from answering questions about the issue of fringe benefits tax, and whether he or the company paid such tax, on the basis that to do so might incriminate him.
- [20]I do not accept that he benefited from the companies by anything like the 70% of the gross income of the business that he asserted.
- [21]The reason why he claimed loss based on the turnover of the business, rather than the loss of personal income or business income, is apparent from an examination of his and the company’s tax returns for the financial years ended 2009, 2010, 2011 and 2012.
- [22]The position regarding taxable income can be summarised in the following table:
YEJ | 2009 | 2010 | 2011 | 2012 |
Plaintiff | Nil | Nil | 12,171 | 31,300 |
Taxable profit - Pro Teeth | 56,812 | 9,323 | 9,623 | 18,224 |
NaturaMed |
|
|
| Nil |
- [23]Furthermore, the plaintiff’s credit was substantially undermined by his cross-examination. In his evidence-in-chief he made no mention of any other adverse events on his capacity to income personally or through his businesses.
- [24]During cross-examination Mr Ashton put to him a number of documents relating to proceedings in the Federal Magistrates Court, the Federal Court and the Supreme Court. Those proceedings all related to a decision by the ACCC to issue a recall notice for two products – an advanced teeth whitening kit and a professional teeth whitening pen supplied by Pro Teeth Whitening. My concern, of course, is not with the merits of the recall decision but with the effect of that decision on the plaintiff and his businesses and the relevance of material filed by the plaintiff in those proceedings to his credit in these proceedings.
- [25]Submissions of the plaintiff in the Federal Magistrates Court proceedings commenced by Pro Teeth Whitening (the applicant in those proceedings) on 9 June 2012 (Exhibit 22) indicate:
- that he first received notice from the ACCC demanding recall of product on 12 December 2011 and on 2 February 2012 was served with orders for compulsory recall of products;
- in para 1.11 of his submissions he said that Pro Teeth Whitening had suffered “financial hardship as a result of (such) decisions”.
- [26]In further submissions of 10 July 2012 (Exhibit 23) in that court Mr Harrison said:
“The Respondent’s actions have already caused significant damage to the Applicant which cannot be reversed. All applicable products of the Applicant have already been recalled and the business is unable to continue trading.”
- [27]In an affidavit sworn on 13 July 2012 and filed in that court (Exhibit 24) Mr Harrison said:
“Annexure GH-3 is a copy of the website of the Applicant company as of 13/7/12. The Applicant’s website has been closed for business pending the outcome of the court decision for approximately 2 months, preventing any further sales.”
- [28]In submissions of 8 October 2013 in the Federal Court to which he appealed from a decision of the Federal Magistrates Court (Exhibit 25) Mr Harrison wrote:
“10. Appellant business was profitable and operating within the laws of Australia immediately prior to the Respondent’s actions. The business had financially supported the livelihood of its sole Director and his family.
- The impecuniosity of the Appellant was caused by the Respondent [sic] actions, which are the subject of the Appeal and is the reason the Appellant is unable to afford Security for Costs. Primary judge acknowledges in his written reasons at Para 1 (also in Respondent Affidavit Annexure JAM-3 at page 22) that ‘For all intents and purposes that business was brought to a halt when, on 6 February 2012 the respondent certified that compulsory recall notices in respect of two of the products sold by the applicant should be issued without delay.’ Further, Respondent has admitted facts in the original trial which conclude the impecuniosity of the Appellant is directly attributable to the decision and resultant actions of the Respondent.”
- [29]Exhibit 26 before me was the claim and statement of claim of 23 April 2013 of Pro Teeth Whitening against, inter alia, the ACCC relating to the recall decision and filed in the Supreme Court. Pro Teeth Whitening seeks damages of almost $6 million arising from the recall decision. The claim for damages is based on the premise that the recall decision very significantly adversely affected the capacity of the company to operate profitably. A sales forecast, prepared by the plaintiff and attached to the Statement of Claim indicates sales were projected for YEJ 2012 and beyond, on a base of $183,915, said to be the average annual sales for the 2009-2011 period, with an increase of 20% per annum over 10 years thereafter. I presume it is suggested these sales figures were achievable but for the actions of the defendants in those proceedings.
- [30]I note there is nothing in any of the documentation in the Federal Magistrates Court, Federal Court or Supreme Court to indicate that the plaintiff had suffered the injury complained of in these proceedings or that such an event had adversely affected the earnings of Pro Teeth Whitening. It must of course be remembered that the defendant did not in these proceedings tell me anything of any product recall referred to in those proceedings or of any other circumstance which might have adversely affected the earning capacity of the companies when giving his evidence-in-chief.
- [31]His statement to me that he did not think the product recall was relevant to the assessment of the damages I was required to make was in my view disingenuous at best and more probably deliberately dishonest. The cross-examination does little to enhance his credibility about all aspects of his evidence. It causes me a very significant concern about accepting him as a witness of truth with respect to the circumstances of the accident himself, or with respect to what instructions he says he was given by Ms Randall.
The Incident
- [32]The evidence of the teacher of the improvisation subject, Ms Emma Randall is critical. I found her evidence cogent and reliable and generally consistent with other evidence, other than that of the plaintiff, which was given at the trial.
- [33]Ms Randall identified four purposes of the slow motion tag activity namely:
- As a warm up exercise to ensure students were mentally and physically prepared for the lesson.
- To renew the student’s ability to play. She said this was an important aspect of training to be an actor.
- To teach what she termed “chivalry” which she explained as playing with respect for other students, playing with care and goodwill and overcoming any tendency to be unduly competitive. She said these concepts had been explained to the students over the initial six weeks of the course.
- To develop an ability to slow down and to speed up one’s performance in accordance with a cinematographer’s demands. She said a cinematographers do adjust the frame rate of the film speed to achieve a particular visual effect. She has described this as a “very practical” function and said it was a technique she has herself been asked to do in films (see generally her evidence at T2-97/2-98).
- [34]This latter purpose was spoken of by another witness, Ms Lynn Kidd, who was the principal of the defendant’s college. Ms Kidd is an experienced actor and teacher of acting skills. Her CV is part of Exhibit 40. Ms Kidd gave the following evidence at T2-58 L38 to T59 L6.
‘PLAINTIFF: I put to you that normal fast tag without the slow motion component is not an essential activity to learning skills required to be an actor; do you accept that?--- Improvisation is very prominent in learning skills to be an actor.
That wasn’t the question. I’m sorry. The question was: normal fast tag as an activity is not an essential activity to learning the skills required to be an actor?--- I think it is an essential activity.
Okay. Did the – the true value to the acting skills come from the slow-motion parts of the activity?--- It comes from both.
HIS HONOUR: Can you just explain that for me. I think I have a fair understanding, but just put it in your words?--- Well, basically, the slow motion is for you to become aware of your body movement, basically. And the – the fast motion is for you to become of – on a film set sometimes you will have to instantly lift your energy up as well. So it’s the lifting of the energy. It’s the focus of what you’ll have to do. And it’s the – the – the whole physical of the exercise. I’m not an improvisation teacher. I’m [sic] done---
No. No. But you’ve?--- it myself.’
- [35]That matters were explained to the students as Ms Randall said occurred (see T2-98 L19) is in my view confirmed by a journal prepared by one of the plaintiff’s fellow students, Yen Sen Chio (Exhibit 37). In his journal relating to the class held on 13 March 2012 he writes:
“We were first told to run as fast as we could and we would only slow down when Emma gave us the slow motion cue. At one point I was running so slowly which allowed me to focus on every small detail of how a person should be running – the calves or thigh muscles contracting. Little did I know Beck was right behind me and she managed to tap on my shoulders although she was in slow motion. This exercise is definitely more than just a warm up. I reckon in scenes, especially in fighting scenes like those in Hong Kong may require actors to move really slowly because most actors aren’t experienced fighters. This will then allow directors to increase the speed of the scene so that the fight will look normal, hence, being very focused on the little small details such as out (sic) hand movements, the eye contact and how our leg muscles contract is essential in order to look realistic on a screen in normal speed.”
- [36]Ms Randall also gave evidence of what she told students before they undertook the slow motion tag activity. I set out this part of her evidence in full:
‘HIS HONOUR: Replicate exactly what you told the students?--- Okay. I explained that it was a game of slow motion tag and they were to alternate at my direction between playing a normal faster paced game of tag with a very slow motion game of tag.
So alternate between what?--- A faster pace/normal page – a normal game of tag and very slow motion. And I did explain that the focus, in particular, was on the slow motion. I advised them that they needed to pay attention to their muscularity and how their bodies moved in slow motion. I told them that I would call when the change of pace was to happen. I reminded them to play with chivalry, as that was a concept that we had already discussed and done other exercises.
And when you say you’d already discussed it?--- Yes.
You discussed the concept of respect and care for others and avoiding being competitive?--- Yes, and – yes, yes, yes. And I also advised – I, first of all, demonstrated the pace of the slow motion that I was after and coupled with that I advised the students to avoid making sudden erratic movements to avoid being caught, and I demonstrated that.
And what did you demonstrate?--- Well, stepping forward and reaching out in very slow motion and then I replicated what I didn’t want them to do in order to avoid getting caught, whi9ch was to make, you know, a sudden movement to jump.
Jump to one side?--- Yes. Because people’s instinct can be when they’re particularly competitive people when they’re getting – and somebody is, you know, close to catching them to wriggle and writhe and try and get away and that’s what I was trying to tell them I didn’t want them to do.
Ms RANDALL: That’s what I was coming from---
MR ASHTON: Yes, okay?--- was the purpose. So that then when they replicate or continue the movement in slow motion, they are very aware of the difference between the faster pace and the very slow motion and being precise with their movements and careful with their movements.
And what did you tell them about that?--- Well, I told them how that’s relevant in the real world.
MR ASHTON: Now, my question is: what did you tell the students about that? You said something about the real world example or something that you say?--- Well, yes, I gave an example of when it’s necessary and why it’s necessary to be precise. And the example I gave was the one I gave a few moments ago, if the film speed is adjusted. But also specifically I talked about their body awareness, that that’s what the purpose of – and that they were to pay attention to was the shift between the faster pace and the slow motion will happen to their bodies, to their physicality, to any sounds that they may be making at that time, and how that changed between as they speeds adjusted.
- [37]It is clear the plaintiff fell and injured himself when engaged in a faster section of the slow motion tag activity. I do not however accept his evidence about exactly how that event occurred because of my serious reservations about his credibility as already outlined, and because of conflicting evidence of other witnesses. In my view his evidence was designed to further his case, rather than being a genuine recollection of what occurred.
- [38]Two other students involved in the activity on that day also gave evidence – Ms Eleni Petridis and Mr Yen Sen Chio, whose journal I have already referred to.
- [39]Ms Petridis had limited recall of Mr Randall’s instructions given prior to commencement of the slow motion tag exercise. Given the passage of time this is perhaps not surprising. She said that she saw the plaintiff fall. She said “suddenly he just tripped”. She said she saw nothing to make him do so and specifically said she did not see his foot strike any other person. She described the position where he fell as being an area of the hall more than two metres from a mirror, situated where the whiteboard referred to in evidence by the plaintiff appears to have been stored against the wall between two windows in the hall. She said she estimated the spot where he fell was two metres from the castor wheel of the white board. She described the area where the plaintiff was at the time he fell as being where the figure “8” (as part of an 8.3 metre measurement) is shown in Exhibit 1. The point she makes, and which I accept, is that he was in an area of the floor well clear of items stored on the perimeter of the room at the time he fell.
- [40]Mr Chio gave broadly similar evidence although he appeared to have a better memory of the instructions given to students by Ms Randall. He said she explained the purpose of the exercise as being to “engage with your own body, understanding how your muscles actually moved” and said she had spoken of an example of a fight scene in a movie being enacted in slow motion, then sped up in the film. As I have said, I think a reading of his journal is also generally consistent with the evidence of Ms Randall. He said the plaintiff fell when he was “in front of the mirror”. He was asked if he had seen the plaintiff trip on anything and said “no, he just fell”. He said there was nothing on the ground to cause him to fall. He, like Ms Petridis, said he did not see him collide with or strike the foot of any other student.
- [41]I accept the evidence of Mr Chio and Ms Petridis that at the point the plaintiff fell he was not near to any inanimate object which might have caused him to trip. This is also generally consistent with the evidence of Ms Randall. She herself said she did not see the plaintiff fall, as her attention at that time was directed to a group of students to her left performing the exercise. She was upon a stage overlooking the activity area, but said she turned, as would be expected when one heard the undoubted sound of the incident, and saw the plaintiff in a position well away from any such inanimate objects as were around the perimeter of the room. I am however unable to accept the evidence of Mr Chio and Ms Petridis that they positively saw the plaintiff did not trip on the feet of another student. If there was such an impact, it might not have been easily seen by either of them. I think the occurrence of such an impact with another student is a possibility. So too is it a possibility that the plaintiff fell without any involvement of any other person. He said in his evidence that he was running and turning behind to look at another student who was attempting to tag him at the time he fell. In such circumstances it is possible he lost his footing or stubbed his foot on the floor causing him to fall. I do not accept his evidence that he felt his foot impact with either the foot of another student or an object such as the leg of the white board or moveable stairs which were each stored in different parts of the room. I find that no such inanimate object caused him to fall but cannot determine if he struck the foot of another student or fell without with the involvement of another student. He may have tripped over his own feet when looking behind him, as he says he was doing. The fact that he may not have fallen in the past does not assist me to conclude that he must therefore have struck the foot of another student, and in any case I do not accept his evidence of the cause of his falling because of the significant concerns I have about his honesty.
Conclusion
- [42]I find:
- The use of slow motion tag involving a variation of alternating between slow motion and faster motion was a well recognised improvisation technique training for would be film actors.
- The exercise was, as Ms Randall said, important for a number of reasons and it was relevant to learn how to alternate between fast and slow movements, a technique relevant to actors.
- That as a result of the six weeks of prior training members of the class were aware that one of the purposes of the exercise was to pay attention to and to respect other members of the group and to avoid undue competitiveness. They were also told by Ms Randall to pay attention to musculature movement so as to know how one’s body moved, especially during slow motion segments and to avoid sudden movements especially such movements designed to avoid being tagged.
- Although the plaintiff gave evidence, and put to witnesses, that avoiding being tagged was an object of the exercise, I find that a reasonable person in the plaintiff’s position would not have concluded that an important part of the exercise was to avoid being tagged, or could have thought that it was relevant to any part of a student’s assessment that he or she avoid being tagged.
- The exercise had been regularly used in the past as part of the defendant’s training of students without any prior mishap.
- The plaintiff suffered the fall and consequent injury because he tried to run excessively fast to avoid being tagged whilst he was looking behind him to enable him to see the would be tagger. Such an approach was, I find, contrary to purpose of the exercise as explained to him by Ms Randall as set out in paragraph [36] hereof.
- [43]In such circumstances to have allowed ten adults to perform such an exercise in the space provided, as demonstrated in the plan supplied by Ms Kung, (p 200, Exhibit 40) which I find was an accurate representation of the hall space, was reasonable. It of course involved the risk of persons colliding or tripping but the foreseeable risk was small and the risk of significant injury if one fell also relatively slight. Undoubtedly an injury such as that the plaintiff suffered was foreseeable but as I have found he fell and suffered the injury he did because he engaged in the exercise in the way he said which in involved him running quickly and looking backwards to enable him to avoid being tagged. I see no utility in his doing so and find that to do so was contrary to the way Ms Randall had instructed students to perform the exercise.
- [44]Whilst I conclude a reasonable person in the defendant’s position would have foreseen that the activity involved some risk of injury to the plaintiff or to others, it was not unreasonable to conduct the activity as Ms Randall directed. I reject the plaintiff’s evidence that he was told to run as fast as he could and do not accept he was told by Ms Randall that the object of the exercise was to avoid being tagged. I find that running quickly as he did whilst looking backwards was because he wished to do all he could to avoid being tagged. His reasons for doing so were personal and contrary to Ms Randall’s specific instruction to play with “chivalry” and to avoid sudden movement designed to avoid being tagged. In my view the exercise was shown to have relevance to the plaintiff’s training as an actor and the defendant acted reasonably in having students, including the plaintiff, engage in the activity.
- [45]I also reject the suggestion made by the plaintiff in his evidence that he may have tripped on an inanimate object such as the stairs or whiteboard marked in Exhibits 1 and 2. I find that the plaintiff fell in a clear area of the hall set aside for activity and away from items stored in the periphery. I find that an area of approximately eight metres in length and varying between five and six metres in width was generally available. Such dimensions are consistent with the evidence of Ms Kung whose evidence I accept. I think a consideration of the dimensions of the space itself would make it clear to any reasonable participant that the avoidance of being tagged was not an important element of the exercise. The plaintiff’s perception of the area available – 7.5 metres in length and with the width found between 2 and 3.5 metres as set out in Exhibit 2 – makes it even more obvious that avoiding being tagged was not an important part of the exercise (although I indicate I do not accept the plaintiff’s evidence as to the available area). Running fast as the plaintiff said he did, albeit as he said on Ms Randall’s instructions (a notion I reject), was clearly pointless. In my view any reasonable person in the plaintiff’s position would have realised that. It is in my view not possible to draw any comparison with games of tag involving young children in a playground, as the plaintiff sought to do both in evidence and during his submissions.
- [46]The determination of liability in this case involved consideration of the issues raised in the following passage from Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”
- [47]In my view, whilst a reasonable person in the position of the defendant, or Ms Randall, would have foreseen that the slow motion tag activity as undertaken involved some risk of injury to the plaintiff, such reasonable person would have concluded that to conduct the activity as Ms Randall did was reasonable, and that whilst there was a risk of injury, the risk was low. The school had conducted the activity in the past without incident. Even if someone fell, generally the effect would be inconsequential. It was a well recognised activity referred to in literature on the subject of training actors. It taught skills that were relevant. Ms Randall’s specific evidence about both of those matters was unchallenged, and I accept this.
- [48]It is important that neither Mr Chio nor Ms Petridis expressed any reservations about undertaking the activity or about feeling unsafe whilst it was conducted. It involved little more than adults moving, at times somewhat quickly, on a level, wooden floor in a relatively confined space. Undoubtedly similar activities, particularly involving indoor sports participation or dancing, are conducted innumerable times throughout Australia on a daily basis without mishap.
- [49]In my view it was not necessary to take any specific precautions against such a risk, other than giving the directions to participants that Ms Randall did, not only on the day of the incident but even the progress of the course as she taught them the concept of chivalry, as she explained.
- [50]The plaintiff suggested that the activity could have been omitted from the course and that it was unnecessary for the training of students. I have referred already to the utility of the exercise and references to it in academic literature on the subject of training actors. The defendant did not propose any alternative exercise which would have achieved the purposes Ms Randall outlined.
- [51]In my view the following comments of McHugh J in Dovuro Pty Ltd v William (2005) 215 CLR 317 at 38 are apposite:
“A defendant is not negligent merely because it fails to take an alternative course of conduct that would have eliminated the risk of damage. The plaintiff must show that the defendant was not acting reasonably in failing to take that course.”
- [52]In my view the plaintiff has failed to demonstrate the defendant was not acting reasonably in this case. On that basis, the plaintiff’s action fails.
- [53]The defendant's counsel also submits that the plaintiff’s action should fail because “in the element of causation … the plaintiff’s case is fatally flawed”. He submits that the plaintiff must alleg and prove a specified breach of an identified duty and submits the plaintiff has done no more than show that he may have fallen as a result of striking the feet of another student, or in a number of other identified ways.
- [54]Whilst it is unnecessary to the resolve the matter, because of the view I have taken as to the reasonableness of the defendant’s conduct in conducting the activity of slow motion tag as Ms Randall did, it is possible in my view to identify the risk the defendant ought have forseen as a possibility that a participant might fall, whether as a result of striking the feet of another student or falling without any such impact, for example, as a result of stubbing his foot on the floor or tripping over his own feet, either of which, as I have found, was a possible cause of his falling in this case.
- [55]Seen in this way – that there was a risk of falling, which materialised, but that the precise mechanism of falling cannot be identified – the issue of causation would not of itself have caused me to dismiss the plaintiff’s case.
- [56]In Chappel v Hart (1998) 195 CLR 232 McHugh J at 27 said:
“If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring.”
- [57]In my view, if the conduct of the exercise had been wrongful, it is undoubtedly the case that to have so conducted it would have contributed to the plaintiff’s falling. If I had found the defendant's conduct to have been unreasonable, I would therefore not have found the plaintiff had done no more than show an increased risk of injury by such conduct. I would in such circumstances have found that the exercise carried a foreseeable risk of falling, either from tripping on another student’s feet or from tripping on one’s own feet without impacting another, and that such event occurred because of the risks inherent in the activity. In my view, in such circumstances the fact that the event may have occurred from one of two possibilities – either impacting another student or from tripping over his own feet – would not have overcome the plaintiff’s claim for relief.
- [58]Ultimately however, as I have said, it is unnecessary to determine the matter in that way because of my finding that the plaintiff has not established the criteria referred to in what is often described as “the Shirt calculus”. The defendant’s conduct and that of Ms Randall, has not been shown to be unreasonable.
- [59]In circumstances where, for the reasons I have expressed, the plaintiff’s claim must be dismissed, it is necessary in any case to consider both contributory negligence, which I would have had to consider if the plaintiff had been successful, and the assessment of the plaintiff’s damages.
- [60]The plaintiff said he was running and looking backwards to avoid being tagged. He said in evidence that he had been instructed by Ms Randall to run as fast as possible. Whilst I reject such evidence and prefer that of Ms Randall, the plaintiff’s evidence that he did so is nevertheless an important factor in consideration of the issue of contributory negligence. It strongly suggests the plaintiff was being unduly competitive in undertaking the exercise contrary to Ms Randall’s instructions. That this was so was confirmed by the evidence of Ms Randall (T2-102) of a conversation she said she had with the plaintiff whilst waiting for the ambulance to arrive. She said he “mentioned about being overly competitive” and said he was asserting that it was he who was over‑competitive. Such conduct was of course contrary to her instructions to play the game with chivalry, as I have earlier set out, and consistent with his evidence about running as fast as possible, whilst looking back to avoid being tagged.
- [61]It is in my view always difficult to attempt to make a finding of contributory negligence in a case where a defendant is found not to have been negligent. Nevertheless, with these difficulties in mind, if I had found the defendant to have been unreasonable in having students engage in the activity of slow motion tag, I would have found the plaintiff liable for one-third contributory negligence on account of his own conduct in engaging in the activity in the way he did.
- [62]Assessment of the quantum of his claim presents significant difficulties also. In addition to the problems associated with my finding that his evidence was not credible, as stated in his evidence about the consequence of his injury upon him I also do not have the benefit of the report of a specialist medical practitioner giving an informed opinion about the effect of his injury on his capacity for employment or the likely future prognosis for his left arm. The only medical records are initial hospital records.
- [63]It is clear he presented at Princess Alexandra Hospital with a left elbow posterior dislocation and a fracture of the radial head. This dislocation was reduced and was discharged that same evening. Subsequently he underwent surgery on 30 March 2012. Two significant bony fragments were reattached to the radial head using cannulated screws. Ligamentous damage was repaired. He remained in hospital overnight.
- [64]A medical report at the Princess Alexandra Hospital of 27 April 2014 says:
“Mr Harrison sustained a fractured left radial head and dislocated elbow on 13 March 2012.
He required surgery for fixation of the fracture.
He is going to be slow in recovery and stiffness will likely persist. He will improve from his current state considerably but will likely always have a slight loss of end range motion. We are still waiting to see how the bone heals – if it doesn’t future surgery may be needed and his progress will change based on that.”
- [65]It seems clear the attachment has healed as no further surgery has been required.
- [66]Before me the plaintiff demonstrated difficulties he has with movement of his left hand. Despite my concerns about the voracity of much of his evidence I accept he has ongoing impairment in the range of movement of his left arm and some ongoing pain and stiffness. I so conclude because his demonstration appeared to me to be reasonably genuine and because he was not cross-examined significantly to suggest that he was feigning such disabilities.
- [67]He has however a history of being employed or engaged in sedentary occupations. His evidence was of a history of involvement in the IT industry up to the end of 2008. Thereafter he is engaged in the businesses I earlier referred to, conducted through his two companies Pro Teeth Whitening and NaturaMed.
- [68]His personal taxable income in the year ended June 2012 was $34,197.00. I have not been provided with a tax return for that year to know whether such income was earned before or after the subject accident or whether he obtained any payments which might have been included in that assessable income as a result of the injury he suffered. No group certificates were put into evidence. His statement of loss and damage discloses total personal gross income of only $16,496.00 between January 2009 and 2012. His 2011 tax return indicates gross earnings of $13,633.00, and his 2010 return discloses not taxable income. One can only assume the bulk of the $34,197.00 referred to in the notice of assessment for the year ended June 2012 was therefore earned after the incident but, ultimately, I am unable to untangle an impossibly tangled situation.
- [69]The position was further blurred by his own vague and unsatisfactory evidence as to his employment. For example, when asked about the description in his 2011 tax return as his main occupation being “real estate salesman” he indicated he had engaged in that activity for L J Hooker, Capalaba on a commission only basis but had earned nothing. He also said the ABN number shown in the 2011 return, which accounted for the whole of the $13,633.00 earlier referred to was that of a business, New Age Solutions, where he said he worked in IT until November 2011. In court, and in the absence of any group certificates I asked my associate to check that ABN number on the ABN look up site. It transpired the number was in fact the ABN of his company, NaturaMed. He was asked about that but was unable to give any explanation. It seems therefore that his returns do not record any income he earned from New Age Solutions, despite his evidence of employment with that company.
- [70]In the circumstances it is not possible to make precise findings as to either his pre-accident or post-accident employment history and of course any assessment of his loss must take account of the fact of the ACCC involvement in his businesses and the fact that thereafter he must necessarily have been very significantly involved in preparing for the litigation in the Federal Magistrates Court, Federal Court and Supreme Court to which I have referred. Necessarily that itself involves significant keyboard work, an activity which he says he has difficulty with.
- [71]In the circumstances, I think I can do little other than make a global assessment of loss based on my own observations of the extent of his incapacity. Because it is the plaintiff who has failed to particularise his past employment and earnings or proven the extent of any ongoing incapacity by way of a medical report, a conservative approach to such assessment is appropriate.
- [72]The plaintiff was born on 7 December 1965 so was 46 in March 2012 and is now 48.
- [73]In my view a proper assessment of past and future economic loss including superannuation and interest is about $75,000 which I note represents a loss of about $130.00 per week net for 20 years discounted on the 5% tables and further discounted by 15% for contingencies.
- [74]I calculate past special damages from Exhibit 12 at $844.00, making an allowance therein for $300.00 for travel expenses excluding parking which are separately included in the allowance. I would allow an additional $156.00 for pharmaceutical purchases Julay 2012 and for interest. In all I would allow $1,000.00 for special damages and interest.
- [75]The absence of medical evidence makes assessment of general damages necessarily imprecise. It is likely the plaintiff’s injury falls either under item 102 (serious elbow injury) or item 103 (moderate elbow injury) in the Civil Liability Regulation Scale. The comments relating to Item 102 do not in my view fit well with my own assessment of his injury. In my view the comments to item 103 of the Civil Liability Regulations seem more appropriate. They provide:
“The injury will cause moderate long term disability but does not require protracted surgery.”
Such an item has an ISV range of 6 to 12. I note that the injury is to the plaintiff’s left, non dominant hand. In the circumstances I assess the plaintiff’s injury as having an ISV of 10 which attracts general damages of $14,850.00.
- [76]In all therefore I would assess the plaintiff’s damages in the sum of $90,850.00 which if he had succeeded with liability, would have been reduced by one third on account of contributory negligence to an award of $60,566.66.
- [77]In the circumstances I order:
- the plaintiff’s claim be dismissed; and
- the plaintiff pay the defendant’s costs of and incidental to the action to be assessed on a standard basis.