Australia: The "Social Utility" of getting physical – The scope of Section 5B(2)(d) of the Civil Liability Act and a personal trainer's liability

Curwoods Case Note
Last Updated: 1 April 2011
Article by Shannon Say

Judgment date: 24 March 2011

Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63

NSW Court of Appeal1

In Brief

  • Section 5B(2) of the Civil Liability Act 2002 (CLA) requires a number of factors to be considered when determining whether a reasonable person would have taken necessary precautions against the relevant harm. The factors prescribed under s 5B(2) do not operate in isolation.
  • Section 5B(2)(d) relates to "the social utility of the activity that creates the risk of harm".
  • The concept of social utility has limited application, in that, the social utility of an activity must be sufficiently high to justify not taking precautions, ie rescuing people from floods, cyclones and earthquakes.
  • The standard of care of a reasonably competent professional personal trainer requires him/her to be aware of:
    • the risks of injury associated with different exercises;
    • the physical condition of their client; and
    • physiological consequences of requiring a client of a particular physical condition to perform a particular exercise.


In March 2008, Mr Wilson (plaintiff), aged 40, decided to lose weight and get fit. He consulted Vision Personal Training Studio (Vision) and underwent a pre-exercise screening assessment conducted by Ms Webb of Vision. The plaintiff informed Ms Webb that he felt overweight and unfit. During the assessment he was prescribed an exercise program based on 4 sessions a week with a personal trainer for a 12-week period. The plaintiff's program was divided into phases, with each new phase facilitating gradual progression to more difficult exercises.

Mr Draffin, a personal trainer at Vision (a 20-year old graduate from the Australian Institute of Fitness (AIF)) was allocated to train the plaintiff. The plaintiff was one of his first 10 clients.

In April 2008 during a session, Mr Draffin required the plaintiff to perform a crunch exercise involving the use of a 5.4 kg medicine ball and a twist motion of the torso (crunch exercise). As a result of this exercise the plaintiff sustained a prolapse of the lumbar spine (accident). At the time of the accident the plaintiff's program included an exercise called "supine floor crunch". This exercise involved lying on the floor and lifting the upper part of the body off the floor by approximately 6 inches to develop abdominal strength. This exercise did not involve the use of a medicine ball or twisting of the torso.

The plaintiff brought proceedings against Mr Draffin in negligence (based on the crunch exercise being dangerous) and against Vision, being vicariously liable for the actions of Mr Draffin.

District Court decision

The original proceedings were heard before McCallum J who heard evidence from:

  • Mr Draffin that:
    • the plaintiff was an absolute beginner when he commenced his fitness training and his abdominal strength was very poor;
    • the plaintiff's program was to change every 4 weeks;
    • at the time of the accident the plaintiff had been prescribed a supine floor crunch;
    • Vision's personal trainer manual stated that the trainer must follow each program exactly unless a client had a specific limitation;
    • he required the plaintiff to perform the crunch exercise;
    • he chose to prescribe the crunch exercise to challenge the plaintiff and progress the development of his abdominal strength. At AIF he had been trained to increase the intensity of exercise by adding weight. He thought that by adding a medicine ball to the supine floor crunch he would increase the intensity for the plaintiff. He had also observed other people carrying out this exercise at Vision;
    • he would only throw medicine balls to clients who he thought were "really advanced"; and
    • he had no idea whether throwing a medicine ball to a client (with poor abdominal fitness) who was doing a sit-up was dangerous.
  • Mr Tzarimas (Accredited Exercise Physiologist and Director of the Lifestyle Clinic in the Faculty of Medicine at UNSW) that:
    • the crunch exercise was an inappropriate exercise for a person of the plaintiff's age and physical condition;
    • twisting rotation and lumbar flexion is a dangerous combination especially when the impact of the medicine ball is added;
    • the crunch exercise was not referred to at all in the National Fitness Industry Training Package which set out the requirements for the industry qualifications obtained by Mr Draffin;
    • the crunch exercise was not a conventional exercise and that it ought to be confined to persons who exhibited an athlete's fitness.
  • Drs Hopcroft and Conrad opined that the cause of the plaintiff's injury was the impact of Mr Draffin throwing a medicine ball weighing 5.4 kg to the plaintiff at the top of the crunch. He was then required to rotate from side-to-side in a twisting movement and touch the floor with the ball before returning it to Mr Draffin. The crunch exercise placed pressure on the lumbar spine when the medicine ball was caught. This combined with the flexion of the spine created by the twisting part of the exercise probably enabled the disc to protrude.

Notably the defendants did not rely on any expert liability evidence.

Section 5B of the CLA relevantly provides:

"(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."

McCallum J found that the provisions of s 5B(1)(a) and (b) were satisfied and this was not challenged on appeal. So far as s 5B(2)(c) is concerned the relevant negligence, if it existed, was the failing to take precautions (being the non-prescription of the crunch exercise) when taking into account the plaintiff's age, fitness level and limited ability to undergo challenging weight exercises.

McCallum J ultimately decided that:

  • The evidence of Mr Tzarimas ought to be rejected. She was not satisfied that he brought a completely independent mind to the task. This was based upon her observations that Mr Tzarimas approached his assessment looking for fault in Vision according to his exacting standards, instead of standards that were reasonable in the circumstances.
  • There was no breach of duty by Mr Draffin in requiring the plaintiff to perform a twist from side-to-side whilst sitting up from a prostrate position and catching a heavy medicine ball. She was not satisfied that it would have been negligent for Mr Draffin to see whether the plaintiff could undertake the exercise at the stage that he had reached. She was not satisfied that Mr Draffin took a risk that a reasonable personal trainer in his position would not have taken thereby rejecting Mr Tzarimas's evidence on this issue.
  • The operation of personal training studios was an activity of high social utility as contemplated by s 5B(2)(d) of the CLA. Gyms were meeting places, progenitors of community health and designed to keep burgeoning health costs down. Her Honour found:

"The legislation appears to assume that it might be reasonable to take fewer precautions against the risk of harm created by an activity of high social utility. I accept that physical exercise is such an activity".

Court of Appeal decision

On appeal the dismissal of Mr Tzarimas's evidence was challenged as well as the finding that Mr Draffin had not breached his duty of care to the plaintiff.

The Court of Appeal found that:

  • Mr Tzarimas's evidence on the appropriate standard of care ought to have been accepted.2 His evidence was unchallenged. He was an appropriate expert who, whilst giving evidence in a passionate matter, was forthright and honest.
  • The standard of care of a reasonably competent professional personal trainer requires him/her to be aware of:
    • the risks of injury associated with different exercises;
    • the physical condition of their client; and
    • physiological consequences of requiring a client of a particular physical condition to perform a particular exercise.
  • Mr Draffin breached his duty of care owed to the plaintiff in that he:
    • failed to appreciate the consequences of prescribing the crunch exercise (an advanced exercise) to a client who was not at the appropriate level of fitness. This was determinative of whether Mr Draffin departed from the standard of care required of a reasonably competent professional fitness trainer; and
    • introduced the crunch exercise that was not only a variation from the AIF written material, but merely because he had observed other trainers using it. He failed to consider the appropriateness of the crunch exercise for the plaintiff.
  • The CLA does not "assume that it might be reasonable to take fewer precautions against the risk of harm created by an activity of high social utility". While it can be said that physical activity is of social utility, what the CLA required to be taken into account is "the social utility of the activity that creates the risk of harm". In this case the activity was the crunch exercise, which of itself had no relevant social utility.3
  • Social utility is but one factor which s 5B(2) requires to be taken into account in determining whether a reasonable person would have taken necessary precautions against the relevant risk of harm.
  • There may be cases where the social utility of an activity is sufficiently high as to justify, notwithstanding other factors, a finding that a reasonable person would not have taken necessary precautions against the identified risk of harm, ie rescuing people from the impact of floods, cyclones and earthquakes.

The issue of causation was determined in accordance with s 5D(1) of the CLA. The Court of Appeal held as a result of the High Court decision in Adeels Palace Pty Ltd v Mourbarak4 it is now established that factual causation is to be determined by the "but for" test in all but the undefined group of exceptional cases contemplated by s 5D(1)(b) of the CLA.

The court agreed with the primary judge's findings that the plaintiff's injuries were caused as a result of Mr Draffin's breach of duty so as to satisfy factual causation in s 5D(1)(a) of the CLA.


We are now seeing significant growth in the fitness sector and consequently we are likely to see more litigation and tighter regulation of an industry that has traditionally been unregulated for a long period of time. Personal trainers need to ensure that they not only obtain the relevant educational qualifications but have a good understanding of the effect of their programs when considered against an individual's needs. This may impact on the scope of cover they receive under their liability policies.

This decision also highlights the Court's insistence of a limited interpretation of social utility under s 5B(2)(d) of the CLA. As held by the Court of Appeal the social utility of the relevant activity is but one factor which s 5B(2)(d) of the CLA requires to be taken into account in determining whether a reasonable person would have taken the necessary precautions against the relevant risk of harm. This is a promising development as had the broad interpretation adopted by McCallum J remained, the application could have potentially been widespread.

1 Beazley JA, Tobias JA, Whealy JA
2 Whealy JA dissented on this point and Beazley JA did not express a concluded view.
3 Whealy JA did not decide on this point.
4 [2009] HCA 48

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