Supreme Court New South Wales Medium Neutral Citation: Karaoglu v Fitness First [2022] NSWSC 1772 Hearing dates: 1; 2; 3; 4; 7; 8; 9; and 10 February 2022; 14 March 2022 Last written submissions 7 April 2022 Date of orders: 23 December 2022 Decision date: 23 December 2022 Jurisdiction: Common Law Before: Campbell J Decision: (1) Judgment for the defendant; (2) The plaintiff to pay the defendant's costs. Catchwords: TORTS – negligence – occupier's liability – duty of gym to member – question of breach – use of weight machine – allegation of defect EVIDENCE – witness – allegation of subornation – onus and standard of proof DAMAGES – personal injury – Conversion Disorder – no question of principle Legislation Cited: Evidence Act 1995 (NSW) s 140(2) Civil Liability Act (2002) NSW ss 5A; 16 Cases Cited: Blatch v Archer [1774] 1 Cowp 63; 98 ER 969 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Broadshaw v McEwans Pty Ltd High Court of Australia unreported 27/4/1951. Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Nagle v Rottnest Island Authority (1993) 177 CLR 423; (1993) 76 at [430] – [431]. Piening v Wanless (1968) 117 CLR 498; [1968] HCA 7 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 234; [2005] HCA 19 Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15. Category: Principal judgment Parties: Deniz Karaoglu (Plaintiff) Fitness First Australia Pty Ltd (Defendant) Representation: Counsel: J.M. Morris SC with M.J. Davis (Plaintiff); J. Catsanos SC with R. Perla (Defendant) Solicitors: Carters Law Firm (Plaintiff) Moray and Agnew (Defendant) File Number(s): 2018/192428 Publication restriction: Nil Judgment 1. The plaintiff, Mr Karaoglu, claims damages from the defendant, ("Fitness First") for personal injury he claims to have suffered on 25 June 2015 while training on gym apparatus at Fitness First's Auburn gym. The apparatus was a Technogym 45 – degree incline leg press machine. Mr Karaoglu had loaded weights totalling 240 kilograms on the weight arms of the apparatus. He completed a set of ten repetitions. At their conclusion, the footplate, which is located above head height and attached to the same "L" shaped sub-frame as the loaded weight bar, descended, just as he was rising from the bench to dismount, colliding with the crown of his head. The blow was a forceful one. Dr Hugh Stark, consultant mechanical engineer, in his report of 5 February 2021 (Exhibit JCB; p. 471) calculated the contact force as 819 Newtons or 84 kgsf. Depiction of the machine 1. To understand Mr Karaoglu's case and the issues for determination on liability, it is necessary to have a clear picture of the configuration of the apparatus and some understanding of its usual operation. I have copied part of the joint expert report of Dr Stark and Dr Tim White, also a mechanical engineer, qualified to give evidence by the defendant, to illustrate this (Exhibit JCB; pp. 644 – 646): "Please describe the various components of the subject machine and how the machine is used for exercise with reference to those components? Agreed with (Figures included by [Dr Stark]): 1. Although the taxonomy adopted in the extract from the joint report I have set out above is clear, different terms were used somewhat interchangeably during the evidence. Moreover, with respect, Dr Stark's fig.3 is no more than he has it: a "diagrammatic representation". During the hearing and since I have considered the many photographs in evidence mainly forming part of the expert reports and viewed various videos taken demonstrating the operation of the apparatus mainly emanating from the defendant's side of the record: Exhibits 1; 7 and 8. I have treated these video clips more or less as "portable views" for the purpose of s 53 Evidence Act 1995 (NSW). So far as differences in terminology are concerned, somewhat confusingly the "supports" were variously referred to in the evidence as "props", "locking bars" and, in Mr Karaoglu's evidentiary statement dated 11 February 2021 (Exhibit JCB 1 – 32), "bolts". As the joint report states, when each support was in the position depicted in fig.3, also referred to as "the one o'clock position", with the weight bars resting on the rubber padding at the top of the support, this was often referred to as the "locked" position. But it is important to appreciate that the apparatus is not locked as such: there is no locking device holding the support in place in the one o'clock position. Rather it is held there as a result of the mechanical forces involved in Newtonian physics. The yellow sub-frame and weight arm secure it from the top and contact of the lower end of the support with bumper B as depicted in Fig 3 above inhibits further lateral movement towards the 2 o'clock position. 2. The expression "rubber bumper 'B'" could also possibly involve some confusion. What is depicted as bumper "B", two of which are located below the black mainframe under the silver platform below the weight bars as depicted in figs 1 and 2, one on each side, was sometimes referred to as the "rubber stop limits". However, the Technogym literature uses this expression to describe the rubber pads affixed to the top and side of the support. When the supports have been lowered to their reclined position during the operation of the apparatus, the pads affixed to the sides of the supports limit the downward travel of the weight arms. Hence the expression, rubber stop limits (see Ex JCB pp 263 & 264). The operation of the apparatus is designed so that when reclined, each support rests against a curved component of the main frame at an angle of 45 degrees. These curved components are also fitted with a rubber pad against which the support rests in its fully reclined position. With some effort, this arrangement is visible in Fig 3. Issues 1. There is no real dispute that Mr Karaoglu received an injury of some kind in an incident of the type I have described (at [1] above). How and why this happened; whether Fitness First is legally responsible; and the nature and extent of the injurious consequences of the incident are all hotly contested. The competing liability lay evidence 1. Although the then Chief Justice directed that the matter proceed by way of live hearing in court, for COVID reasons, Mr Karaoglu gave his evidence by audio visual link. While the technology operated in a more or less satisfactory way, communication by AVL is rarely as effective or immediate as evidence given during a personal appearance in court. The natural limitations of conducting hearings by AVL are familiar to the courts and the profession by dint of the experience of each during lockdowns necessitated by the Pandemic. To the extent to which the necessity for Mr Karaoglu to give his evidence remotely may have placed him at some disadvantage as regards my assessment of his presentation as a witness, I have attempted to make allowances in his favour. 2. Given that the incident occurred nearly 7 years before the hearing, there was a good deal of territory for the cross-examiner, Mr Catsanos SC who appeared with Mr Perla for the defendant, to cover. The limitations of eliciting evidence remotely did not make the task of asking questions, or answering them, easy. Even so, my own impression of Mr Karaoglu as a witness is that he was frequently unable or unwilling to answer questions directly. He had a tendency to second guess the cross-examiner and talk over him by commencing to answer questions before they were complete. He seemed to wish to be allowed to tell his own story in his own way, at length and in all the detail that seemed important to him. He was not volatile or aggressive, but he was certainly discursive. While he was polite, he was warily defensive to the point, on occasions, of caginess. When it came to questions about his injuries, disabilities and activities, he was not forthcoming in a spontaneous way, but seemed to hedge, attempting to gauge what the cross-examiner might, or might not, know before giving a full answer. He seemed to be particularly guarded when asked about an incident involving an allegation that he attempted to suborn a witness. As this question is fundamental to Mr Karaoglu's credit, I will deal with it immediately before dealing with the substance of his evidence on liability. 3. I should record that Mr Catsanos submitted that I should find that Mr Karaoglu is not a witness of truth. He relied upon a number of factors, including the allegation of suborning the witness, evasiveness, inconsistency and obfuscation on several important matters, particularly in relation to damages. He also relied on the opinion of Dr Samuell, psychiatrist, that there was a strong possibility that the giving of misinformation by Mr Karaoglu was "calculated" (588.11 - .13, 26 – 7T). 4. Mr Morris SC, who appeared with Mr Davis for the plaintiff, accepted that "caution will need to be exercised in relying upon [Mr Karaoglu's] evidence and preference should be given to contemporaneous documents" (Plaintiff's Outline of Submissions ["POS"], [2]). Senior counsel argued, however, that on some important matters there was corroboration and that generally the evaluation of Mr Karaoglu's reliability and credibility should be undertaken in the light of the psychiatric evidence, his pre-existing ADHD and his unusual personality type. Mr Morris accepted that when giving evidence, Mr Karaoglu was: impulsive; apparently unable to follow directions from the Court; prone to rambling non-responsive answers; irrational and inconsistent to a degree; affected by poor short term memory; affected by "time blindness"; and inconsistent in presentation in as much as his recollection seemed to be very clear on some topics, but he gave vague and strange responses on others. 5. As Mr Catsanos pointed out (Defendant's Written Submission, [12]) when the cross-examiner attempted to pin Mr Karouglu down on the detail of topics he claimed to be afflicted by a poor memory. He used expressions such as, "well, my memory is not the best" (69.2 - .3T, 90.33 - .34T, 102.6T, 215.45T); and "my memory is terrible" (135.30T, 143.10T, 154.38T, 313.5 - .7T, 216.17T, 237.4T]); or "Yeah. My memory is literally that bad" (313.31T). There are many other examples that senior counsel gave of this approach to answering questions when, for example, inconsistencies were drawn to his attention. He claimed that his ADHD affected his memory. There were many other examples of this, or a similar phenomenon evinced by Mr Karaoglu, given by Mr Catsanos who submitted they were evidence of evasiveness. Mr Catsanos relied upon this exchange at (101.36 – 102.7): "Q. What I want to suggest to you, Mr Karaoglu, is that, in the time that you've been giving evidence in this court, you've given multiple inconsistent accounts of the effects of your injury. A. Yes. Q. And you're not being truthful with this court in relation to the effects of this incident on you? A. Mm. HIS HONOUR Q. You have to answer that, you can't just say, mm. It's being put to you that your evidence has not been truthful in relation to the accounts you've given me about the effects of the injury. So, what's your response to that proposition? A. Well, sir I can – if I can give you a graph-- Q. No, no, no, please, please, please. You're asked a question here, Mr Karaoglu which is a very important question which you have to answer, please? A. Well, I agree it probably won't be entirely 100 per cent accurate. Again, I'm going to reiterate; my memory has not been the best, but I will say, I have been suffering and I've been doing everything I can do to overcome those sufferings without doing any drastic measures." At that point there was a temporary interruption to the AVL connection which was immediately rectified. 1. Mr Catsanos also relied upon an additional passage from Dr Samuell's evidence (566.29 - .44T) where the expert was being cross-examined about his impression formed by reading the transcript of the plaintiff's evidence. In particular, Dr Samuell's was asked whether the evidence evinced "instances of lack of concentration". In fairness, Dr Samuell did not give a clear answer to the question. He stated his impression was that Mr Karaoglu "seemed to be concentrating on the intent of the argument that he anticipated counsel was making". That suggested impressive functioning to Dr Samuell. Although the question was asked in cross-examination for the purpose of bolstering Mr Karaoglu's case based on a psychiatric diagnosis and disability, I am not so sure that Dr Samuell's response was based wholly or substantially upon his obvious expertise as a consultant psychiatrist. I am not of the view that a psychiatrist is in any better position than a judge or a juror to make an assessment of these matters, with respect. It may be if a particular presentation is a recognised manifestation of a known psychiatric condition, a psychiatrist could explain that to the tribunal of fact so that a wrong impression could be dispelled. That evidence would be wholly or substantially based upon the psychiatrist's expertise. For instance, immediately following the passage relied upon by Mr Catsanos, Dr Samuell agreed that Mr Karaoglu's evidence "was marked by a degree of impulsivity". The expert said that Mr Karaoglu "says whatever comes into his head at the moment" and that was probably "a characterological feature". I understood the doctor to mean that that was part of his character or perhaps personality type. That evidence, I thought, was within expertise. 2. Putting Dr Samuell's impressions to one side, I formed a very unfavourable view of Mr Karaoglu's reliability as a witness. It was my view that pleading his allegedly poor memory was a strategy adopted for the purpose of evading answering uncomfortable questions. To say he is impulsive in the sense that "he says whatever comes into his head at the moment" may be another way of saying, he had a tendency "to make it up as he went along". To be fair, Dr Samuell accepted that Mr Karoaglu's impulsivity could be part of his Attention Deficit Hyperactivity Disorder (567.10T). When asked could that be "part of his personality" (567.19T), Dr Samuell said he agreed "with that completely" (567.10 - .50T). 3. Mr Karaoglu certainly told doctors that he has a past history of ADHD (Exhibit JCB, p. 878, report of Dr Ashraf Phillips dated 8 September 2019). I accept that history. However, I do not understand any of the psychiatrists who have examined him in recent times, whose reports are before the Court to proffer ADHD as a current diagnosis. For instance, Dr Phillips was of the view that Mr Karaoglu suffered "a depressive episode with co-morbid PTSD, panic attacks and OCD symptoms" (p. 79). I understood OCD to be a reference to obsessive compulsive symptom of repeatedly washing his hands "up to 50 – 60/day … he is compulsively counting things and worries about symmetry and organisation" (p. 876). 4. Dr Anthony Dinnen, qualified on behalf of the plaintiff, was of the opinion that Mr Karaoglu suffered from either an adjustment disorder or a conversion disorder, depending upon whether one accepted that there was a physiological or neurological basis for his physical symptoms (Exhibit JCB, p. 665B). Dr Samuell did not come to a definite conclusion about diagnosis. He seemed to be of the view that a number of conclusions were possible: "conversion disorder, a somatic symptomatic disorder, or malingering" (Exhibit JCB, p. 665E). 5. In his original report of 14 May 2018, Dr Dinnen gave the primary diagnosis as an "adjustment disorder with anxiety and depressed mood". He did note the pre-existing history of anxiety disorder/ADD and considered that Mr Karaoglu would benefit if he was managed by a psychiatrist experienced in managing ADD. I understood ADD to be Attention Deficit Disorder and synonymous with ADHD. Dr Dinnen did not find any indication of feigning, malingering or exaggeration of his physical symptoms. Obviously, he considered the ADHD remained relevant to Mr Karaoglu's management. In his subsequent report of 13 October 2021, Dr Dinnen did not re-examine Mr Karaoglu, but had the benefit of the joint expert conclave report of the neurologists, Professor Bruce Brew, Dr Yingda Li, and Assoc. Professor Paul Spira dated 3 September 2021. That report was not tendered, but it was common ground between the parties that the neurologists concluded that notwithstanding early suggestions of a cervico-thoracic spinal cord injury that possibility had been excluded by the absence of significant objective or consistent clinical, radiographic or electrophysiological signs of such injury. On this basis, Dr Dinnen reconsidered his opinion, discarded the earlier diagnosis of Adjustment Disorder and posited instead either a Conversion Disorder or a Somatic Symptom Disorder (Exhibit JCB, p. 746). Of them, he seemed to favour a Conversion Disorder because of the functional neurological symptoms involving the bladder, bowel and sexual function (Exhibit JCB, p. 747). 6. In his original report of 21 September 2018, Dr Samuell expressed uncertainty about the diagnosis. He regarded Mr Karaoglu's presentation as puzzling with physical and psychological symptoms, which were difficult to explain. He noted "the pre-existing history of ADHD" (Exhibit JCB, p. 1030). In his second report of 17 December 2021, Dr Samuell contented himself largely with criticising Dr Dinnen's methodology. He accepted the possibility of either Somatic Disorder or Conversation Disorder, but did not discount the applicability of either a Factitious Disorder or a Feigning Disorder being intentionally generated conditions for the purpose of secondary gain. 7. I am not persuaded on the balance of probabilities that Mr Karaoglu's presentation as a witness is a manifestation of his pre-existing ADHD even if one accepts, as Dr Dinnen suggested, it remained relevant to the management of any valid ongoing recognised psychiatrically diagnosable condition. 8. I should also add that were one to form the view that Mr Karaoglu's presentation was a manifestation of ADHD or some other diagnosable condition, that consideration, as I think Mr Morris accepts, would not thereby render his evidence more reliable. It would simply serve to provide an "innocent" explanation for what is nonetheless unreliable. Whatever the explanation, unreliable evidence will always provide but a poor foundation for findings of fact required to be established on the balance of probabilities. Did Mr Karaoglu attempt to suborn Mr Stanford? 1. As the attempted subornation of a witness is irremissible conduct by a party to litigation, inevitably fatally undermining his or her credit, it is necessary, as counsel have done in their submissions, to deal with this question immediately. At the outset, I should say that while the plaintiff carries the ultimate burden of proving all the necessary elements of his case on the balance of probabilities, this question is an instance of the application of the maxim, "he who asserts must prove". That is to say, Fitness First carries the onus of proof on this question and on the civil standard of proof. As what is involved is an allegation of not only discreditable, but criminal, conduct, the principles discussed in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 as reflected in s 140(2) Evidence Act 1995 (NSW) apply. By that I mean, given the allegation of serious misconduct, "clear or cogent or strict proof" is required. The ordinary civil onus in such circumstances cannot be discharged "by inexact proofs, indefinite testimony, or indirect inferences": Briginshaw at pp 361 – 2. 2. Timothy Stanford was Fitness First's member services manager at the Auburn Gym during 2015 and 2016. He was the senior person on duty when the incident involving Mr Karaoglu occurred on 25 June 2015 at about 9:20 pm (Exhibit JCB p. 673 statement 11 March 2021). He completed the incident report form (Exhibit JCB p. 676) and called an ambulance for Mr Karaoglu. His previous statement, presumably to investigators, made on 10 August 2019 formed Annexure C to his statement. Importantly, also on 11 March 2021 he made a supplementary statement (Exhibit 3) which formed the basis of the subornation allegation against Mr Karaoglu. His evidence was that he had received a call in January or February 2021, "about four weeks ago". He understood that Mr Karaoglu was the plaintiff in these proceedings claiming compensation for injuries from Fitness First. Mr Stanford said the following exchange occurred (Exhibit 3[5] – [7]): Mr Karaoglu: "If you change your story about how my accident happened, I will take care of you." "If you help me, I will help you". "I'm going to get some money and I'll give you a piece of the pie". Mr Stanford: "I want nothing to do with that sort of thing and I'm not interested". Mr Stanford said the conversation was then terminated and he has not heard from Mr Karaoglu since. 1. When Mr Karaoglu was asked in cross-examination on 4 February 2022 (316.5T) when he'd last spoken to Tim? He said: "would have been maybe three years ago". When asked the same question again he said, "probably would have been maybe two to three years ago" (316.25T). That "last" conversation occurred at the front counter at the gym (316.33T). When asked directly whether he had spoken to Mr Stanford in January or February of 2021, Mr Karaoglu responded, "It's possible. You know, my memory isn't the best, but - " (316.37T]. 2. When the apparent inconsistency was pointed out, Mr Karaoglu explained, "I am not very good with exact timelines" (316.40T). In a process akin to the proverbial "pulling of teeth", Mr Karoaglu eventually said (at 317.35T): "I was trying to get his mobile, I think for some - I remember the reason why I was going to get his mobile. I wanted to talk him - it was about - I think it was about the case but I just - I wanted to clarify a few things and I just asked him like - I know I was - I complained to him a few times about the incident report. I complained to [someone else] about it and I think I had tried - I think - I think I remember I asked him if I could get a statement from him; if it would be possible if we could get a statement." Senior Counsel, perhaps understandably, wanted to continue to take Mr Karaoglu to task about variations in the accounts he had given on this topic. After further non-responsive evidence, and backtracking, when asked directly by me to answer the question whether he "actually did speak to [Mr Stanford] on the telephone early in 2021" [318.28T] he responded, "I believe so. I may have, yes." When asked by Mr Catsanos why he hadn't said that when first asked, he said "I didn't know, I didn't know it was required of me, sir" (318.36T). 1. Mr Catsanos continued to highlight the inconsistencies and Mr Karaoglu continued to cascade answers talking around the question. But he agreed that he spoke to Mr Stanford to ask him to make a statement (319.35T). He couldn't explain why he made the call, rather than his lawyers. When asked if it was the truth that he actually spoke to Mr Stanford, he interrupted the questioner by saying "I don't even remember – I can't even remember actually" (319.46T). When asked (at 320.1T): "Q. Is the truth of the matter that you did speak to Tim Stanford in the early part of 2021. Is that the truth? A. I'm not too sure if I talked to him on the phone. I know I - I attempted to call him, and that's - that's pretty much all I remember." 1. While Mr Catsanos was attempting to question him to emphasise that Mr Karaoglu must have been obfuscating by recapitulating the process, Mr Karaoglu said (at 320.31T): "You refreshed my memory there, sir, about the whole calling me back, I remember that". When it was put that he could hardly have forgotten the call in the circumstances, Mr Karaoglu went into a long monologue about his childhood "memory problems" punctuated by further attempts at questioning. 2. The following exchange appears at (321.31 – 322.3T): "Q. What you said to Mr Stanford in this phone call was something along the lines of, "If you change your story about how my accident happened, I'll take care of you"? A. That's properly bullshit. Sorry. Sorry. Q. Will you please let me finish my question? A. Yep. Q. "If you help me, I'll help you. I'm going to get some money, and I'll give you a piece of the pie or a piece of the pot" or something to that effect? A. No. No. No, no, no, no, that's a complete lie on his end. Q. Well, what conversation did you have with him? A. I was asking about a statement. Q. What did he say to you? A. Sorry? Q. What did he say to you? A. What did he say to me? He says he has no recollection of the event I asked him about. I said, "But you were there when the leg press snapped", and he says, "I don't remember that". He goes, "It's been such a long time ago", and he pretty much brushed me off." 1. He recalled asking Mr Stanford for a statement but denied the attempted subornation (323.20T - .50T). 2. In cross-examination, Mr Stanford rejected the suggestions made that his account of the telephone conversation with Mr Karaoglu of January 2021 was "wrong" or "incorrect" (374.5T - .29T). He did not accept he was "appalled" by Mr Karaoglu's approach, but he was "just uncomfortable and … wanted the conversation to end quickly" (374.40T). He did not recall Mr Karaoglu's solicitors ever contacting him, but he accepted that Mr Karaoglu had asked him whether he would speak to his solicitor and give him a statement (375.15T). He also agreed he said something like he didn't mind doing a statement, but he did not remember much at all (375.20T). He did not remember any arrangement for him to speak with junior counsel for the plaintiff on the following Monday (375.25T). He accepted that he did not wish to speak to Mr Karaoglu's lawyers because he "found the conversation awkward" (375.35T). He rejected the suggestion that he had given a wrong account "to poison the Court's impression of Mr Karaoglu's honesty" (375.45T). He said he wanted "to remain neutral". But he did remember being asked to make a statement. He made it clear that following the conversation with Mr Karaoglu he "did not want to speak to his lawyers" (376.48T). He did not agree that he'd made any such arrangement (377.1T). Mr Stanford said that Mr Karaoglu asked him to speak to the latter's lawyers and he said, "No" (377.31T). He accepted that if he in fact had made such arrangement "that would not be consistent with what [he was] saying today" (377.35T). 3. Mr David Hansen, the solicitor with the daily carriage of Mr Karaoglu's matter, affirmed an affidavit on 9 February 2022. Mr Hansen said that in mid-January 2021 he "caused" attempts to be made to contact Mr Stanford for the purpose of obtaining a statement. That task was apparently delegated to an administrative assistant, Ms Mirella Rigo. Ms Rigo sent Mr Hansen a memo on 19 January 2021 stating she had called Mr Stanford and left a message on his voicemail. I infer that someone asked Mr Karaoglu to follow him up because on 20 January 2021 he emailed Mr Hansen stating he had been in contact with Mr Stanford who said he had already given a statement to the other side a few months ago. Mr Karaoglu stated: "He said he doesn't mind doing a statement, but practically does not remember much at all." 1. On 23 January, Mr Hansen spoke to junior counsel to obtain availability for a conference with Mr Stanford. On the same day he rang and spoke to Mr Stanford who informed him that he was "in a position to participate in a teleconference with counsel at any time during the afternoon of Monday 25 January 2021" (affidavit [7]). Mr Hansen's handwritten file note of his conversations with counsel and Mr Stanford is Annexure "C" to his affidavit. He there recorded that Mr Stanford expressed a willingness to speak with counsel "anytime on Monday afternoon". 2. Perhaps a little cryptically, Mr Hansen states (affidavit [8]): "Despite the above communications, I am informed and verily believe that a teleconference between Mr Timothy Stanford and [junior counsel for the plaintiff] did not ultimately take place". Conclusion on the subornation issue 1. I have not found this question easy to resolve. Despite my unfavourable impression of Mr Karaoglu generally, including my reservations about his reliability, I found his eventual forthright denials of offering a financial benefit to Mr Stanford spontaneous, direct and more persuasive than other aspects of his evidence. Moreover, as Mr Morris pointed out, it was not shown that Mr Karaoglu was aware of the content of Mr Stanford's previous statement, or in fact even knew that he had made one when he commenced his telephone call. In fact, Mr Stanford's previous statement is at least in part supportive of the plaintiff's case to the extent to which he corroborates that some untoward event occurred while Mr Karaoglu was dismounting the leg press. Bearing in mind the apparent logic of events, it is difficult therefore to understand just what it would have been that Mr Karaoglu supposedly knew or believed was harmful to his case and that he wanted changed. 2. It was not put to Mr Stanford that he was in any way actively dishonest, just that he was wrong or incorrect. To put this another way, that he was mistaken. While he rejected those suggestions, it was clear from his evidence that his recall about substantive matters was not crystal clear, especially about one material fact. 3. Early in his cross-examination, he made it clear that when interviewed by "counsel" he "got the machine wrong" (363.8T). He "thought it was a different type of machine, this entire time". He "believed it was the older version of the machine" (36.25T). His recollection was that the Technogym apparatus was not brought into the gym until it was taken over by another company after the incident (363.35T). He did not believe that an email he had written about the event about 12 months later on 12 July 2016 (Exhibit JCB, p. 677) was "correct in some places" (364.48T]. He rejected the conventional question that his memory in 2016 would have been better than at any later point of time. He said, "I am not an expert on memory" (365.6T). He repeated "I believe this email was rushed, and I believe it was wrong" (365.23T). He said he had not seen the Technogym "diagram" until very recently and when he made his statement in 2019 to investigators he had a grey machine, not the Technogym apparatus, in mind. He did not believe he had used the Technogym apparatus and he was not really familiar with it (379.25 - .45T). While this does not go to his recollection of the conversation in January 2021, it does call into the question the accuracy of his recall about important matters, at least in a general way. 4. Perhaps more pertinent is his adamantine rejection of the suggestion that he actually spoke to Mr Karaoglu's solicitor at any time. This is directly inconsistent with Mr Hansen's unchallenged account that he spoke to Mr Stanford on 23 January 2021 and in fact made arrangements for him to confer with counsel by telephone on 25 January. This is inconsistent with his evidence that because he was "uncomfortable" and felt "awkward", he refused to speak with Mr Karaoglu's solicitor. 5. It is not beyond the experience of the courts that a litigant soliciting a statement from a reluctant witness may unadvisedly say something about "making it worth the witness's while" if he co-operated. But this is conjecture and that is not the charge laid against Mr Karaoglu. Given the seriousness of the allegation, the proofs proffered, which solely consist of Mr Stanford's evidence in this regard, do not rise to the level of cogency necessary to reasonably satisfy me that Mr Karaoglu attempted to suborn Mr Stanford. His testimony is too indefinite and the proof too inexact. I reject Mr Stanford's evidence in that regard. I am not suggesting he is a dishonest witness. But I find that he is wrong in his recall. 6. While I am not satisfied that Mr Karaoglu attempted to suborn Mr Stanford's evidence, this does not dispel the generally unfavourable impression of his presentation I formed from the whole course of his evidence. Mr Karaoglu's evidence about the incident 1. The plaintiff was born in October 1993 and was aged 21 years on 25 June 2015. His pre-existing ADHD and anxiety did not prevent him from being a keen young sportsperson who was "passionate" about fitness (Exhibit JCB, p. 3). He commenced weightlifting at about the age of 15 years in his high school gym under the supervision of the PE teacher. He first joined a gym in about 2010. This was the Fitness First Gym at North Strathfield. He joined another gym in 2012 at Lidcombe. From about that time, he decided he wished to engage in serious body building to compete in Men's Physique events. The idea of these events is the competitors present as "a fit muscular athletic physique type". Extreme muscularity is marked down. With this aim in mind, from 2012 he attended a gym between 4 and 7 days per week. Certainly, by June 2015 from the photographs included in Exhibit 2, Mr Karaoglu was a young man of an impressively muscular build. 2. It is common ground that he joined Fitness First's Auburn gym around 10 June 2015. While he states that he was not given any training on using the equipment including the 45-degree leg press apparatus, nor was he provided with any risk warnings concerning use of that apparatus or other machines. I am satisfied that when he joined the gym as an extremely muscular young man who was serious about bodybuilding, he was very experienced in the use of the various apparatus employed by him during his gym work. He had developed his own routine, devoting a separate gym attendance to each of his chest, his legs, his arms and abs and his back (Exhibit JCB p. 1037). He would also do an extra day or two when he would work on "a muscle group of [his] choice". He usually warmed up with five minutes on an exercise bike. He then performed compound movements followed by isolation movements. On his leg day after his warm-up he would use the 45 degree incline press, moving onto leg extensions, hamstring curls and leg raises. I have no doubt that he was thoroughly familiar with the use and operation of the equipment at the gym. In cross-examination he volunteered that as at the date of the incident he "already had a huge frame" and weighed 105 kgs (143.25T). I interpolate, he has now reduced to 67 kgs. 3. While in cross-examination he denied that he was offered a free personal training session or explanation of the apparatus when he joined the Auburn gym, he agreed that he had never sought assistance from anyone at the gym (260.25 - .30T). If he had needed assistance he "most likely" would have asked for it (260.38T). But he also said he did not believe the gym staff were trained "in any shape or form on how to use the equipment". He would not have asked them for assistance because he did not believe they were "qualified" (261.10 - .15T). In a somewhat discursive answer, he said (262.10T): "… I've never felt the need to ask for assistance, sir. I was doing quite well at the time. I was doing quite well. You know, I didn't feel the need to ask for assistance, but if I did need to ask for assistance, I probably would have asked my friend, Sonny, but he - you know, he's rarely there." 1. On 25 June after his warmup, Mr Karaoglu went to the Technogym leg-press apparatus and loaded it with 250 kilograms in weight plates. This was not particularly heavy for him to lift on the inclined leg press. He said he noticed some rust and paint cracking around the supports, but there is no evidence before me that these were other than innocuous signs of wear having no relevance to what happened. His usual routine was to do 4 sets of 10 repetitions on the leg-press. 2. After completing his first set, his legs were extended and the footplate (F on fig. 1) was at its maximal height (see fig. 2). He said he then reached down to the sides of the machine and pulled the handle (H in fig. 2; fig. 3 yellow H) and pulled them upwards so that the supports rose from their reclined position into their "locked position" and stopped moving. He removed his hands from the handles. He then flexed his knees to lower the footplate, so the weight bar rested on the rubber pads (stop limit) on top of the supports (fig. 3, W). I interpolate that Mr Karaoglu's recollection about the operation of the handles is incorrect. Pulling up the handles reclines the support. To return them to the "locked" position you push them down: concurrent evidence Dr Stark and Dr White, (452.35 – 453.8T); [2] above. 3. Mr Karaoglu continued (Exhibit JCB pp 11 – 12 [43] – [45]): "When the footplate part of the machine had stopped and was resting on the rubber pads, I removed my feet from the footplate, lowered my legs and put both of my feet on the ground in front of me. I then leaned forward in the sitting position for a short time. I do not know the exact amount of time I was in that sitting position, but it was more than five seconds, but less than ten seconds. I started to get up from my sitting position to get out of the machine. I was leaning forwards as I was rising to my feet. … As I was getting to my feet, I heard a noise which I would describe as a bang or a crack, and about the same time as hearing that noise, I recall feeling something hit the top of my head. I then remember waking up or coming to in a sitting position in the chair of the leg press machine." 1. When he came to, Mr Karaoglu said the footplate was immediately in front of him in the sitting position. He felt dazed and felt pain in his neck, head and upper thoracic area. He had numbness below the level of his nipples and his legs would not work. The numbness was transient, but he said he had to be helped out of the machine by Mr Stanford and a person he described as a security guard. The feeling gradually came back into his legs, but they still felt a bit numb, and he had pins and needles. He said he was placed in a chair or bench near the machine. 2. Controversially because it is disputed by Mr Stanford, Mr Karaoglu states that Mr Stanford sat in the apparatus and pushed the footplate up, raising the weights. He then "engaged the locking mechanism" (Exhibit JCB p. 13 [54]), a reference to the supports, and lowered the footplate resting the weight bar on the pads at the top of the supports. Mr Karaoglu said, "the weight platform and footplate almost immediately snapped out of place". He heard the same cracking sound. When this occurred, the supports moved not away from, but towards Mr Stanford by about one inch or so. From his account I infer he is saying that the supports were beyond the "lock" position and the weight bar was in its reclined position at the lower head of the red arrow in fig. 2 above. Mr Karaoglu said that Mr Stanford dismounted the apparatus in that configuration. Someone removed the weight plates and an "out of order" sign was placed on the machine. 3. Mr Karaoglu was accompanied to the office where the Incident Report Form attached to Mr Stanford's statement was completed and an ambulance was called, which took him to Westmead hospital. 4. In cross-examination Mr Karaoglu agreed that the normal operation of the apparatus is depicted in the photographs included in Dr White's report of 18 December 2019 commencing at Exhibit JCB 480. These photographs are figures 2, 9 and 10 in that report. He also agreed that figures 5 and 6 (Exhibit JCB 497 and 498) showed the correct position of the weight bar on the support's upper stop limit. When in the "locked" position the weight bar or that end of it which forms part of the yellow sub-frame depicted in figures 1 and 2 above, rests directly on the centre of the top stop limit. He confirmed that he had achieved the position of the weight bar resting directly on top of that stop limit at the completion of his repetitions (295.48T). He agreed that if he did not reposition the weight bar on the upper stop limits properly, the apparatus "could be dangerously unstable". Mr Karaoglu added, "something could happen" (297.38T). When it was put to him that in fact, contrary to his earlier evidence, he did not follow the correct procedure on the day of the incident, after some cavilling, he said he believed he did (300.8T). He said he was quite adamant that he did it correctly (300.15T). He denied that he had "started lowering the weight bar while [he was] raising the [supports]" (300.33T). 5. Contrary to his earlier statement that he pulled the handles up, Mr Karaoglu said he pushed the handles down and held them there so the support was in the locked position before lowering the weight bar (301.30T). Mr Catsanos put to Mr Karaoglu that he had only achieved the position where the support was in the 12 o'clock position, not the 1 o'clock position depicted in fig. 3 above, as the weight bar was lowered, and it did not rest directly on the stop limit as depicted in Dr White's fig. 14 (JCB p. 513). Mr Karaoglu denied that but sought to say in any event that the yellow triangular lugs welded to the underside of the arms of the yellow sub-frame depicted in figures 1 and 2 above could hold it in place (302.15T). He agreed again, however, that if the weight bar was not sitting securely on the upper stop limit of the support when the support was in the locked position "it could have been unstable and dangerous" (303.3T). Mr Karaoglu said, "something probably could have happened". But he did not agree that is the position he left the support and weight bar in when he "finished the exercise" (303.23T). 6. When asked again about whether he had placed the apparatus in the position depicted at JCB 513, that is with the support in the 12 o'clock, rather than 1 o'clock position and the weight bar not resting directly on it he said (304.45T): "Well, it happened a very long time ago, and, sir, just by the way it's actually situated, it's actually quite difficult to see, so, you know, that's hence why I didn't use, you know, a full yes or a 100% no. I'm saying I believe I left - I left it in the correct position …" When asked if he was saying that he was not sure of the rest position of the weight arm just before his incident, he said (305.5T): "I'm saying it would have been very hard to see, you know, just by the way it's situated. The pad is actually right under the yellow arm itself, so it could be - you know, there could be, you know, a mistake on my end, a minor one, but I'm somewhat adamant that, you know, it was locked out correctly, and the plate was not moving, it was not vibrating. It seemed pretty stable, and I was - it was like that for a good ten seconds, and there was no issue, sir. He said he was assuming he lowered it into the correct position (305.24T). Having said there was a possibility he may have placed the weight bar in the wrong position (305.37T), he then denied this, saying he was sure the support was in the correct, "locked" position (306.5T). 1. Mr Karoaglu denied that Mr Stanford did not test the machine in his presence (313.50T). He denied there was no failure of the machine while Mr Stanford was there (314.5T) or that Mr Stanford did not inspect the machine in his presence (314.10 - .20T). Mr Stanford's evidence about the substantive issues 1. As I have said, Mr Stanford was the night manager in charge of the gym at the time of the incident and the person who completed the incident form and called the ambulance for Mr Karaoglu. There are some difficulties, as I have already indicated, with the acceptance of his evidence. As I have already said, I did not find him to be a dishonest witness and he was not challenged on that basis. Rather, as I have said, he was uncertain of some important details. He doubted that the apparatus involved was the Technogym equipment. He disavowed the accuracy of his email of 12 July 2016 and his statement to investigators of 10 August 2019. This makes the evaluation of his evidence somewhat difficult. 2. In the first of his statements dated 11 March 2021 (Exhibit JCB 673 – 4), he acknowledged that his email and statement were different. He put these differences down to the passage of time. However, he stated [11]: "I am confident that I observed no fault with the machine on the night of the incident and that I had received no complaints in relation to that machine prior to the incident." This, of course, does not grapple with the issue that his doubts about the machine were not assuaged by the attempts to refresh his memory out of court in conference. 1. The short description of the incident he received from Mr Karaoglu and recorded in the Incident Report Form (Exhibit JCB 676) was that "leg press machine gave way and hit in head (sic)". In his email of 12 July, slightly more than a year later, he said he was alerted to the incident by another person at the gym and rushed over to the leg press machine and saw Mr Karaoglu "laying against" it. I assume Mr Karoaglu was still on the seat of the machine. Mr Stanford continued: he asked what happened, Mr Karaoglu replied that he went to stand up and the weight fell on top of his head. Mr Stanford said, "I looked down and saw that the lever used to support the weight wasn't clicked in all the way". He asked Mr Karaoglu about symptoms and with the assistance of the security guard helped him back to the reception area. 2. In his statement he said that Mr Karaoglu told him he had been "knocked out". Mr Karaoglu also said the incident occurred because "its 'clips' didn't lock in properly as they were supposed to". I took "clips" to be another synonym for the supports. 3. Mr Stanford stated he had not been previously advised of any problems with the apparatus. When they were back at the reception area waiting for the ambulance Mr Karaoglu again complained that the clips, which Mr Stanford referred to as the levers, did not lock in and he was hit in the head by the footplate. Mr Stanford was not able to understand how the accident happened because the footplate has two locking positions and neither of them can strike you in the head while you are lying back (Statement [10]). I understand the two positions to be the "locked" position with the supports in the 1 o'clock position and their reclined position. 4. Mr Stanford said that after Mr Karaoglu was taken away in the ambulance, he inspected the machine. He stated (Statement [14]): "I sat in the machine to test it and saw that the levers on either side were working normally. Even though I thought there was nothing wrong with the machine I followed company policy by quarantining it from further use until it had been inspected by one of Fitness First's maintenance staff." 1. When he was next at the gym, he was informed that the maintenance team had been in earlier. Mr Stanford also said he viewed the CCTV footage at some stage. According to Mr Stanford it showed that Mr Karaoglu had not properly activated the "lever" to lock the footplate, then as he got up to dismount, he grabbed the footplate with both hands for leverage and pulled it onto his head. 2. Mr Stanford said that Mr Karaoglu had mentioned ongoing symptoms to him as a result of the incident on occasions when he later attended the gym. 3. So far as I can tell from cross-examination, the matters that Mr Stanford now disavows from his email and investigator's statement are: 1. he is unfamiliar with the Technogym apparatus; 2. it is not his recollection that Mr Karaoglu used two hands to pull himself up, but one hand only; and 3. he does not recall inspecting the apparatus while Mr Karaoglu remained on the seat; and 4. he disavowed that he noticed "the lever used to support the weight wasn't clicked all the way in" while Mr Karaoglu remained in situ (364.45T). None of these matters affect in any material way the central thrust of his evidence. 1. Mr Stanford was asked about his recollection of the CCTV footage (commencing at 358.40T). He believes he watched the CCTV footage the day after the incident with Mr Tassone, the maintenance manager and Ms Burt, the assistant manager for the Parramatta and Auburn gyms. Mr Ramachandra, the manager, may also have been present. He said it was reasonable to say that the footage may have been played and played again to review it several times (359.5T). Mr Stanford said, the CCTV footage depicted Mr Karaoglu performing a leg press. He remembered that "he tries to use the lever and then he uses … the top of the weight plate to sort of lift himself up from the chair … I don't think the weight was secured and it just bops him on the top of the head" (359.30T). I understand the lever in this context to be a reference to the handle marked "H" on fig. 3 above. 2. Mr Stanford denied that after activating the lever, Mr Karaoglu sat there for some seconds. At this point, he was prepared to accept that his recollection in 2019 would have been better than now (360.10T). It was later that he said he was not an expert on memory. He did not recall that the footplate was ever stationary in its top position. He said at (360.27T): "As I recall, that didn't happen because the plate was constantly moving. So, I've discussed this with fitness professionals. As I recall, to the best of my knowledge, he didn't complete the eccentric phase of weightlifting. He just lifted the weight and didn't lower it properly and tried to get up too quickly". 1. When senior counsel sought to take him through it methodically (360.45T ff), Mr Stanford said: "As I recall, it was faster than that. He didn't complete the eccentric phase and attempted to get up; that's as I recall." The incident took "less than a second" (361.5T). He agreed that as the footplate was descending Mr Karaoglu moved into a position where the footplate struck his head (361.20T). He agreed that it was only after he had attempted to activate the lever and start to get up that the footplate dropped (362.14T). 1. Mr Stanford said at (362.37T): "I think what I'm saying is that he gets up really fast, and he's trying to use the safety lock at the same time." Mr Stanford said that Mr Karaoglu did not fully engage the lever so as to restrain the footplate properly. He believed the footplate was always moving. Mr Stanford denied that when he attempted to secure the apparatus after the incident, the incident was replicated while he was on the machine. He said, "again, none of this is true, sir. I don't know where it's going" (368.30T). He accepted that there were some 20 minutes between the occurrence of the incident and the ambulance being called. He had ample time to carry out an inspection and test of the machine (371.25T). His recollection was that he did not leave Mr Karaoglu's side at reception, but "your statement is reasonable, if the parameters that you set (sic)". By this he meant he had time to carry out an investigation before he called the ambulance. I did not regard this as a concession that he actually carried out an investigation that evening before Mr Karaoglu was taken to the hospital. Evidence of Tiana Burt 1. Ms Burt provided a statement dated 14 January 2021, to which was attached her investigator's statement of 10 July 2019. She also provided a supplementary statement dated 28 April 2021. As I have said, she was the assistant manager for Parramatta and Auburn. She states that she was not aware of any prior complaints regarding the Technogym leg-press apparatus. In her supplementary statement she said the apparatus was a popular machine used in 2015 by many males with heavy weights. 2. In her investigator's statement she stated that she was familiar with the apparatus but had never used it. She attended the Auburn gym the morning after the incident and noticed that the apparatus had been placed "out of order". She said this was the standard precautionary measure until it could be inspected by the maintenance team. She said either Charlie Tassone or a person named John attended the gym to inspect the machine and she was present during the inspection. It was in fact Mr Tassone who attended with a technician named Steve Robbie. Before the inspection she viewed the CCTV footage. She stated that from her viewing, it appeared that Mr Karaoglu had not locked the machine correctly by manually turning the levers on the side before attempting to exit it (Statement 10 July 2019 [7]). Having not properly locked the lever, he took his legs off the footplate and sat up in the same motion as he attempted to dismount from the machine. She remembered the footplate struck his head quite hard and he was knocked backwards into the seat. From the CCTV footage, he appeared unconscious for a short period. I interpolate, in context, the reference to the levers is to the handles. The handles do not "lock", as such. By proper use of the handles the supports are placed in the so-called locked position. 3. As stated, she was present during the inspection by maintenance staff, who tested the machine. She said that it was put back into immediate use. 4. In cross-examination, Ms Burt said that she did not recall seeing Mr Karaoglu put his hands on the lever (385.20T). She said that there was a simultaneous motion of removing his feet from the footplate and placing his hands "on the press" and that is when the incident happened "very quickly" (385.20 - .35T). 5. Although Ms Burt had said in her statement that her recollection was that there were not many weights on the machine at the time of the incident, she agreed that statement was inconsistent with a load of 240 kgs (386.45 – 387.1T). 6. Ms Burt maintained that Mr Karaoglu did not operate the levers at all, which I interpolate cannot be correct. 7. Ms Burt was cross-examined about the precise sequence of events and her evidence, was not clear to me at the time and is not clarified much by reference to the transcript. As far as I can tell the gravamen of it was that Mr Karaoglu attempted to dismount from the machine while it was still in motion and before he had attempted to put the supports in the locked position. However, there is no doubt in her mind that he was knocked unconscious (391.30 - .35T). When Mr Karaoglu's version was put to her in detail, she rejected most of it other than to say that he leant up to grab the footplate and it struck him in the head knocking him back into the seat (392.20 - .40T). Evidence of Mr Kumar Ramachandra 1. From November 2012 to October 2019 Mr Ramachandra was employed as the manager for the Parramatta and Auburn gyms operated by Fitness First. He supervised Ms Burt and oversaw the day-to-day operations of the gym. Ms Burt was based mainly at Auburn. 2. He said that technicians attended the gyms on a weekly basis to carry out any required maintenance, attend to general maintenance and repair issues as required. If there was a complaint about a machine, Fitness First procedures required the machine to be isolated from use with an "out of order" sign. As technicians were frequently at the gym, staff would alert them to the need for repair. If the machine could not be repaired, it would be withdrawn from service. 3. He is familiar with the Technogym apparatus, the subject of these proceedings. He said that even if the supports are "not locked in properly" the footplate can only move a small distance toward the bench before it arrives at the bottom of its range of travel. 4. Mr Ramachandra made a supplementary statement on 3 May 2021 dealing with the contractual terms between the gym and members. He said the information provided to a new member depended upon that member's experience with gyms in general and with gym equipment. He instructed staff to correct members who were not using apparatus properly or safely. The only signage provided in relation to use was the manufacturer's signage on the machine. He said Technogym is the "Ferrari" of gym equipment. 5. In cross-examination Mr Ramachandra said that he had no technical knowledge and was unaware of the systems for procurement of the Technogym equipment: whether they were imported by Fitness First directly or who assembled them. So far as he was aware the only people who had technical knowledge about the apparatus were the internal maintenance technicians (335.30 – 336.15T). He was aware of an employee at Auburn named Neo and another named Biren Desai, who had been mentioned in other evidence (336.35T). He had actually used the machine himself working out at the gym (337.10T). 6. Mr Ramachandra gave some evidence about there being two locking positions. One for a short person and the other for a tall person (337.25T). There was cross-examination about this. However, Mr Ramachandra with respect to him is simply wrong about this and his evidence in that regard can be readily rejected. To the extent to which there are two locking positions, these are really the two positions which inhibit the further movement of the weight bar and footplate. The first position is, of course, the 1 o'clock position when the support is more or less upright in that position. That is what is referred to by me as the normal "locked" position. The second "locked" position is when the support is reclined, which sets the limit of the downward movement of the weight bar. This in turn controls the downward movement of the footplate as they are connected in the right-angled, "L" shaped yellow sub-frame depicted in figs 1 and 2 above. Mr Ramachandra's evidence about locking positions for short and tall people, was with respect, a forensic red herring. I have disregarded it. I did not understand either counsel to place any reliance upon this evidence as being in any way relevant to understanding how the incident involving Mr Karaoglu occurred. To mix my metaphors it turned out to be no more than a blind alley. 7. Mr Ramachandra agreed that grabbing the footplate was a common way for a person to dismount from the apparatus (341.50T). The whole of the weights area was visible from the reception area (343.5T). The evidence of Charlie Tassone 1. As at 26 June 2015, Charlie Tassone was employed as a regional maintanance manager at Fitness First responsible for all maintenance in the south west region of Sydney. He was responsible for 16 gyms. I did not understand him to be a tradesman, but he had some practical experience in assembling and disassembling the gym equipment installed in Fitness First's gyms. Indeed, he seemed to say he was initially employed as a maintenance technician. But in the light of the whole of his evidence, I very much doubt this. He left the organisation about 6 years ago. He was very familiar with the Technogym apparatus, the subject of these proceedings. 2. In 2015 a maintenance technician was allocated to particular gyms. The technician would attend each gym on a weekly basis as a matter of routine and could be called out to deal with particular incidents such as that involving Mr Karaoglu. Mr Tassone said he personally attended the Auburn gym on average once per week to perform maintenance and repairs on equipment as required. The procedure required any machine having operational issues to be isolated with an "out of order" sign attached to it. 3. As at 2015, Fitness First imported the Technogym equipment from Italy directly. They were received in flatpacks at the warehouse and were assembled by Fitness First employees, including Mr Tassone, prior to being installed at a particular gym. Maintenance work was carried out on site. From time to time, it was necessary to withdraw a machine or apparatus from service and return it to the warehouse for more extensive work. 4. He attended the Auburn gym on 26 June with a technician, Steve Robbie. Mr Robbie did not give evidence in the proceedings. Mr Tassone had not seen Mr Robbie for about six years, I infer since the former left the employ of Fitness first. He was shown the CCTV footage of the incident. His description of it was as follows (Exhibit JCB 699c, at [25]): "I recall observing in the CCTV footage that Mr Karaoglu finished a repetition and then grabbed the plate to the top of the machine as he stood up. I saw some impact with his head. I did not observe him to appear to have lost consciousness and he was rubbing his head. He got up and moved around straight after the incident". 1. Contrary to what emerged in cross-examination, in his statement (commencing Exhibit JCB 699a), he claimed to have carried out a thorough inspection without observing any problems. He tested the apparatus himself, decided it was free from fault, the locking mechanism was fully functional, and the apparatus was fully operational. He had no difficulty operating "the locking mechanism". He was satisfied there was nothing wrong with the machine. 2. In a supplementary statement, (Exhibit JCB 699f) he said prior to his test on 26 June 2015 he loaded the apparatus with 100 kilograms. He stated that the Technogym equipment carried signage as to use. No signage was provided by Fitness First. 3. It became immediately apparent in cross-examination that he was possessed of management qualifications, "maintenance-wise" (395.20T). His team consisted of fitter-machinists and electricians. He did not possess those trade qualifications (395.25T). When he attended the gym, he attended with Mr Robbie who had trade qualifications. Despite his absence of trade qualifications, he had personally built many hundreds of Technogym leg press machines over the years he worked for Fitness First (396.34T). He identified the material commencing at Exhibit JCB p. 130 as Technogym material relating to the leg press machine (397.10T). This material ran through to Exhibit JCB 156. It consists of more than one document. One document is a "manuel". 4. It turned out that he had not assembled hundreds of leg press apparatus. It also appears that his involvement, although he used the first-person plural pronoun was observing and receiving instruction from tradesman (397.45T). 5. Mr Tassone said that Fitness First had a computer program named Emergence which generated a monthly schedule of maintenance for each gym (398.25T). Tradesmen would attend and work to the schedule generated by Emergence. He did not, however, give any evidence about the content of the regular maintenance on the 45-degree leg-press apparatus. 6. Mr Tassone said he was personally aware of the working of the locking mechanism on the apparatus (400.5T). He agreed that the levers or arms (handles) "bring two arms up with a rubber bumper on it for the weight bar to sit on" (400.10T). I interpolate, in the quote the two arms are the supports and the rubber bumper for the weight arm to sit on is the rubber stop limit. The bumper is installed below the machine. 7. When asked about the risk of the weight bar falling off the rubber stop limits if they are not positioned correctly, Mr Tassone volunteered that there was an adjustment underneath to make sure the weight bar "centres on the rubber" (400.20T). He was asked about a spring that draws the weight bar into its correct position and he responded by saying the spring was on the handle, "when it gets completely locked in, then you know its properly engaged yes" (400.25T). Mr Tassone identified the spring by reference to an extract from Technogym's manual at Exhibit JCB 263. He agreed that JCB 259 and 260 provided guidance on disassembling the spring. I interpolate it appears to be located under the seat (401.1T). It is not shown as being connected to the handle. 8. He then gave evidence from which it was apparent he was relaying in a hearsay fashion what a technician had told him. If the spring is not properly adjusted the weight bar may not properly engage with the rubber stop limit and the weight bar may protrude past the rubber stop limits and would not be properly secured (401.5 - .10T). When asked what might happen in that situation, he said (401.15T): "I'm not - I haven't been working on these machines for so long. At the moment, I haven't thought it through. Like, I can't remember, sorry." But when Mr Morris persisted, Mr Tassone agreed that if the weight bar is not properly secured on the rubber stop limit "it is not properly secured to take the weight" (401.23T). It may appear stable, but it is not actually stable (401.27T). When asked "if further loads applied to it, to the footplate, what can happen is the locking mechanism, as it's called, can give way and the footplate can descend suddenly", Mr Tassone responded: "If it's not locked in place properly, and the spring's not working as it should be, yes, it may." (401.33T) When asked if that scenario would pose a risk of injury to anyone using the footplate to get out of the machine he responded, "well, if the spring was broken, and the handle wasn't put in place, possibly" (401.37T). 1. When he went to the Auburn gym on 26 June 2015, he was relying on Steve Robbie to actually undertake any necessary technical work (402.21T). He believes that he only watched the CCTV footage once (403.5T). While he was watching the CCTV footage, Mr Robbie was attending to the machine, Mr Tassone did not know what, if anything, he had actually done from his own observation (403.10 - .34T). 2. Mr Tassone agreed that the CCTV footage showed that Mr Karaoglu was struck on the head as he started to pull on the weight of the footplate and it descended suddenly striking him (404.30T). He recalled that Mr Karaoglu grabbed the footplate with both hands, went to get up and the footplate hit him on the head (405.5T). 3. Mr Tassone said he could see the holders, which I take to be the supports, and the handle "go forward at the same time". He said that means the supports were not locked in position properly "and it went forward" (405.10 - .13T). 4. Mr Morris took Mr Tassone back through his statement and had him confirm that when he tested the apparatus after he had seen the CCTV footage and Mr Robbie "was finished" he was able to position the supports so that the weight bars rested directly on the rubber stop limits, "the centre of the pads" (407.3T). He said when he tested it "it worked the way it was meant to work" (407.46T). 5. Mr Tassone was shown the photograph from Exhibit JCB p. 513, which depicted a weight bar having overshot the top rubber stop limit. It was resting on the stop limit one of the two welded triangular lugs on the underside of the yellow sub-frame just above the weight bar. Mr Tassone could not say whether the subject machine featured those lugs (408.25T). But he agreed that if the spring was broken or in the wrong position it could "end up in that position" (408.30T), JCB p. 513 is fig. 14 from a report of Dr White. 6. Mr Tassone said that Mr Robbie would have recorded any work he performed on the Emergence program. 7. In questioning from me Mr Tassone explained that when a user is bringing the supports up from the recline position, when the supports are 80 percent up "you actually feel the spring pull it the rest of the way so that it engages the [locked] position" (411.31T). However, I did not understand how the spring operated when the supports were lowered into the reclined position. 8. In re-examination, Mr Tassone said that he had been watching the CCTV footage for about 5 to 10 minutes (412.26T). In answer to leading questions, he said that Mr Robbie did not have any tools or any parts with him when he went over to the machine (412.40T). Mr Tassone said that the only tool necessary was a shifting spanner (414.42T). He didn't observe Mr Robbie to obtain any tools or parts (415.6T). It was put to Mr Tassone in further cross-examination that he couldn't know what Mr Robbie was doing in the five or ten minutes he was in the office watching the CCTV footage. He denied that and said "with my peripheral vision, that you could see him walking around. I never seen him leave the machine" (419.26T). He couldn't swear 100 percent that Mr Robbie didn't go back to the truck to obtain a tool or parts (420.23T). Mr Tassone did not know Mr Robbie's present whereabouts because he lost touch with him when Mr Tassone left Fitness First (421.20T). As I explain when dealing with liability, the adjustment of any spring like that depicted in JCB 263 requires more than a shifting spanner. The absence of evidence from Steve Robbie 1. Obviously on the evidence of Mr Tassone, Mr Steve Robbie is a witness of whom it could be supposed he could give material evidence. He was the technician responsible for checking the apparatus and making any necessary repairs or adjustments to it. Fitness First sought to circumvent this issue by attempting to elicit circumstantial evidence from Mr Tassone from which I am invited to draw an inference that Mr Robbie did not carry out any work on the apparatus at all, other than perhaps checking it. I will evaluate that evidence at the appropriate time. 2. To explain his absence, Fitness First read the affidavit of its solicitor, Mr Brian Maroney affirmed on 9 February 2022. Apparently, on 13 April 2021, a now former employed solicitor of Mr Maroney's firm emailed the client insurer, not the client insured, enquiring whether Fitness First held contact details for Mr Robbie. An officer of the insurer replied on 23 April 2021 stating she would make enquiries. However, no further information was received, and no further enquiries were made. 3. The evidence does not establish that the whereabouts of Mr Robbie are in fact unknown had reasonable enquiry been made of Fitness First, or that he was otherwise unavailable to give evidence. As things stand, his absence is entirely unexplained which may have ramifications. 4. It should also be said that on the evidence of Mr Tassone, Mr Robbie would have entered a record in the Emergence program, recording his attendance and detailing any work undertaken. I appreciate that these events occurred nearly seven years before the hearing, but the absence of contemporaneous business records relating to the attendance of Mr Tassone and Mr Robbie at the Auburn Fitness First gym are likewise unexplained. 5. In respect of both matters, a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference may be available, but the utility of this from the plaintiff's point of view really depends upon not so much the inference that the absent evidence would not have advanced Fitness First's case, but rather on whether there is an available inference favourable to Mr Karaoglu on the liability question which can be more readily drawn because of the absent evidence. The expert liability evidence 1. The relevant experts for the plaintiff are Dr Betul Sekendiz, a Sports Management Consultant and a self-styled Safety and Legal Risk Management expert whose reports of 10 November 2019 and 29 December 2020 were tendered (Exhibit JCB 75 and JCB 98 respectively). Dr Sekendiz was not called to give evidence and there was little emphasis laid upon his opinions in the proceedings. I do not propose to make further reference to his reports. 2. As I have already indicated, Dr Hugh Stark, Consultant Mechanical Engineer, provided five reports which were tendered (Exhibit JCB 424ff). Dr Tim White, Mechanical Engineer provided two reports (Exhibit 479ff). The defendant also relied upon a report of Mr Rod Diamond of 30 April 2021 (Exhibit JCB 590). Mr Diamond is an experienced exercise physiologist, however, as with Dr Sekendiz, Mr Diamond's opinions did not feature in the issues presented for determination and I will not make further reference to his reports. 3. I do not propose to go through each of the reports of Dr Stark and Dr White. As occurs with the refinement of issues in the case, particularly in the case of Dr Stark who was involved from an early time, opinions develop and to some extent change over a period of time. More significantly, Dr Stark and Dr White conferred and produced their joint report, as I have said dated 10 August 2021, (Exhibit JCB 643ff) and gave concurrent evidence. The Court's procedures in this regard rather reduced the differences between them and it is to my mind more pertinent to focus upon the joint report and the concurrent evidence. 4. As I have indicated, both experts agreed on the manner of the proper use and operation of the machine and I have set out the terms of their agreement above (at [2]). Dr Stark was of the view that the account given by Mr Karaoglu in the evidential statement was consistent with the supports "being able to travel too far backwards", as I would put it towards the 2 o'clock position, "such as the weights … were able to slip off the front of the supports". Dr Stark expressed the opinion that "this is possible if the rubber bumpers … are either absent, broken or maladjusted or a combination of same" (Exhibit JCB 647). 5. Dr White did not regard Dr Stark's hypothesis as sustainable. He accepted that a maladjustment of the bumpers would allow the supports to travel back too far out of the 1 o'clock position, but by attaching fig. 5 (Exhibit JCB 649), he sought to illustrate that even if both bumpers were absent, the weight bar would be supported by the top stop limit even if the weight bar was sitting on the edge, rather than middle of it. He also regarded, for what it is worth, Mr Karaoglue's account as being inconsistent with Mr Stanford's evidence. 6. Dr Stark was of the view that if the bumpers "were either absent, broken or maladjusted or a combination of same" and the supports went too far back, this would enable the weights to slip off the supports causing the footplate which moves with the weight bar to move in a downward direction striking Mr Karaoglu's rising head as he sought to dismount. Dr White remained of the view that Mr Karaoglu through inattention failed to satisfactorily ensure the supports were in the fully locked position before attempting to dismount (Exhibit JCB 651). On this scenario, Mr Karaoglu did not move the supports back far enough. 7. If the supports had moved back too far, Dr Stark said the weigh bar would rest on the edge of the supports' top stop limits. Dr White agreed but found the expression "too far" indeterminate. He repeated his view that even with the weight bar resting on the edge of the top stop limit, "the weights are actually satisfactorily supported". 8. It is obvious from the joint report that the experts disagree in a material way: Dr Stark is of the view that the complete absence or maladjustment of the bumpers would permit the weight bars to slide off the upper stop limit forward of the support. Dr White is of a different view. In his opinion, although not ideal, if the bumpers were maladjusted the weight bars would remain supported resting on the edge of the top rubber stop limit and the accident could not have occurred as Mr Karaoglu described it. If both bumpers were entirely absent, the supports would move too far back in the locked position such that the weight bars would fail to make contact with the top stop limits at all and would descend to the reclined position. In this scenario the accident still would not have occurred in the way described by Mr Karaoglu. 9. Turning to their concurrent oral evidence. Neither expert had the opportunity of inspecting and testing the actual apparatus involved in Mr Karaoglu's incident. Both were satisfied that they had the opportunity of inspecting appropriate exemplars (450.47 – 451.10T). The experts agreed that there is no actual locking device for the user to engage when the user finishes with the equipment. Rather it depends upon the operation of ordinary physical forces. In particular, positioning the support by use of the levers or handles in the correct position (451.40 - .452.5T). As I have said before, lifting the handles reclines the supports. Pushing them down lifts them. The handles are connected so that both supports can be moved with the use of one hand (452.10T – 453.8T). 10. If the apparatus is properly adjusted, the supports cannot move beyond the 1 o'clock position because their further movement is impeded by the rubber bumpers which are bonded to a steel plate which is screwed through the frame of the apparatus with a nut on either side (453.20 – 454.10T). The stop limits at the top and side of the supports impede the movement of the weight arm beyond them: the top stop limit when the support is raised to the 1 o'clock position; and the side stop limit when the support is reclined. Although one speaks about two supports, in fact, they form two arms of a U-shaped steel component that goes under the frame to both sides of the equipment and they move, not separately but, simultaneously because they are attached to each other (454.5 - .45T). 11. The footplate has a limited field of movement which Dr Stark measured at 274mm (455.38T). 12. The subframe to which both the weight bar and the foot plate are attached is referred to as a parallelogram mechanism. The yellow subframe is L shaped, as I have said. The weight bar rises as you push the footplate with your feet (456.10T). In the "locked" position the footplate is halfway between "its reasonable extremities" (465.22T). 13. Assuming that the bumpers are appropriately adjusted, the user should know that the supports had been returned to the 1 o'clock position beneath the weight bars by taking the handles to their limit of travel: you push down until you cannot push any further (457.15 - .29T). 14. In the 1 o'clock position and when fully reclined, the support will remain stationary. But in the spectrum between those two positions "gravity will likely push it in either one direction or the other" (458.35T). It may be that carefully placed in the 12 o'clock position with the weight bars on the top stop limit, the weight bar would remain in equilibrium (458.5T). Dr Stark thought this would occur in the "neutral" position, but he wasn't able to say that the 12 o'clock position would necessarily be the "neutral" position (458.20T). 15. If the condition of the bumpers permitted the supports to travel beyond the 1 o'clock position in the direction of 2 o'clock, Dr Stark was of the view that the weight bar might rest on the edge of the top stop limit and by the application of additional weight, "perhaps by pulling on the footplate", the weight bar may tip over the edge (459.20T). 16. Dr White was of the view that assuming the apparatus and the bumpers were appropriately adjusted, for the weight bars to fall forward, the operator must have left it in a position somewhere less than the 1 o'clock position. On this scenario that the supports would be "in equilibrium". Dr White said (459.30 - .45T): "But perhaps in simple terms [he] was just in a hurry and let the weight or let his force off the footplate just a little bit before the locking bars were all the way back to the 1 o'clock." … "… with his hand or hands … pressing down on the handles so that [the supports] were moving back up, but then he let the weight off the footplate just fractionally too soon such that the weight bars came down and stopped the movement of the props before they'd reached the 1 o'clock position. So maybe the whole system stopped with the weight bars teetering on the edge, if you will, of the [stop limits] on {[top of the supports]." Both agreed that whatever the cause of a sudden fall of the weight bar an essential element is "a misalignment between the weights and [the supports]" (460.22 – 44T). 1. It is important to point out that neither Dr White nor Dr Stark were aware of any spring mechanism forming part of the operation of the handles and movement of the support arm (466.1 -.50T). Dr White did comment that "the mechanism might feel a bit springy as the user moves the handle, as weight from [the supports] comes on and goes off the handles, as [the supports] move across the over-centre position". But he could not recall seeing any type of mechanical spring on the machine (466.20T). 2. Dr Stark said he was entirely unaware that there was a spring in the system. He was of the view that it relied on gravity, and he could not see what a spring would add to the system (466.50T). 3. Both Dr White and Dr Stark were given the opportunity to consider Technogym manual in detail over an adjournment on 8 February 2022. Having done so, Dr Stark adhered to his previous view. He had no recollection of seeing a spring on the apparatus he examined or in any documentation he had previously seen. In his view, the spring was attached to "another model of machine" (468.10T). From examining the manual, he did not regard it as part of the handle mechanism. Dr White was quite certain that the exemplars he had examined did not have a mechanical spring fitted to them (468.25T). From his inspection of the manual, he was not able to satisfy himself that the spring depicted at JCB 263 had anything to do with the handle mechanism for raising and lowering the support (468.30T). 4. Having been given the opportunity to read that part of Mr Tassone's evidence concerned with the spring, Dr Stark said the evidence did not make mechanical sense to him (469.6T). He adhered to the view that given the mechanical design, he could not see what the spring would do. The relevant adjustment is not that of a spring, but of the rubber bumper (469.10T). Dr White generally agreed with Dr Stark. While he could conceive of a manner in which a spring could assist gravity, he regarded it as unnecessary. He said the final position of the supports "will surely be determined by the rubber [bumpers]". He added "I just can't imagine any engineer who would use a spring like that to actually limit the position" (469.30T). He also said that the spring is just too unpredictable a mechanical component to bring the support to the final 1 o'clock locked position. You need a hard stop to do that such as that provided by the rubber bumper (469.35T). Dr Stark agreed. 5. Both Dr White and Dr Stark were asked to consider the pictogram located on the yellow subframe, depicting the movement of the apparatus (Exhibit F). Both agreed that it did not provide any information about the operation of the locking mechanism. And it provided no guidance at all as to the ideal position for the levers (476.25 - .45T). I understood this to mean the supports. 6. Dr Stark said that one bumper may be lost without noticeable affect so long as the other is fully there (480.35T). If the second is lost, then the supports would move too far back in the "locked" position. He agreed that the movement of the supports beyond the 1 o'clock position would require the failure of both bumper stops (480.47T). 7. Dr Stark said that if the weight pad was sitting securely on the centre of the top stop limit as depicted at JCB 498, and as the plaintiff described it, "there was no accident" (482.17 – 483.11T). If the relationship between the weight bar and the top stop limit was as depicted at JCB 498, "it is pretty close to being in the correct position" (483.26T). Dr White agreed. He said, "there's no realistic chance whatsoever that the weight bars could have slipped off the top of the [supports]" (483.33T). Dr White also agreed that if only one of the bumpers was maladjusted, damaged or missing and the other in place, then the supports should be essentially in the correct position (485.30T). He also incidentally said that he was able to remove, and I infer replace, a bumper on an exemplar machine using a shifting spanner only in about one minute from start to finish (486.30T). 8. Dr White described the experiments that he carried out on an exemplar at the Fitness First at Dee Why where he adjusted and then removed both bumpers (492.30 – 497.18T). In short, the only way he could achieve failure by a mode involving the supports remaining upright and the weight bar falling to the reclined position, was by fully removing both of the bumpers. In that part of the experiment, the weight bars in descent did not make any contact whatsoever with the top stop limits. They "missed" it by "at least an inch". The weight bar could never have sat on the top stop limit at any time to enable the exercise repetitions to be commenced if both bumpers were missing. The only contact to be made with the top stop limit would be in a position short of the 1 o'clock position, requiring conscious manipulation of the supports into a position of contact with the weight bar (494.25T). Legal considerations 1. Mr Karaoglu's case against Fitness First is brought in negligence. Accordingly, questions of liability are determined under the common law as modified by the provisions of the Civil Liability Act 2002 (NSW). The essential relationship giving rise to a duty of care owed by Fitness First to Mr Karaoglu is that of occupier and lawful entrant. However, as the High Court of Australia pointed out in Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 (at 243 [24]), the status of Fitness First as occupier of the land on which Mr Karaoglu allegedly suffered injury is but one aspect of the relationship giving rise to a duty of care. Fitness First's status as an occupier of the land gave it the measure of control which the justices regarded as important to identify the existence and nature of the duty. However, there was more to their relationship than that and the question of Fitness First's control went beyond the static condition of the premises to the condition of the dynamic equipment it supplied for the use by its members for training purposes. These other aspects of the relationship are important "as considerations relevant to a judgment about what reasonableness requires of [Fitness First], a judgment usually made in the context of deciding breach of duty [negligence]." I accept, as Fitness First submitted that the terms of the contract of membership are also relevant to the characterisation of the relationship and questions of reasonableness between Mr Karaoglu and Fitness First: Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15. I should record that the plaintiff does not say that he is owed the higher duty owed by an occupier to an entrant under contract cf Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23. 2. In Thompson v Woolworths the justices referred with approval to the judgment of Mason J (as the Chief Justice then was) in Papatonakis v Australian Telecommunications Commission (1985) 157 CLR 7; [1985] HCA 3 (at 20): "The content of the occupier's duty to exercise reasonable care for the safety of an [entrant] must, of course, vary with the circumstances including the degree of knowledge or skill which may reasonably be expected of [the entrant] and the purpose for which [the entrant] enters upon the premises." 1. For the purpose of assessing the question of breach of an established duty, the justices said (Thompson v Woolworths at 246 [35]): "When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case. To take a commonplace example, in ordinary circumstances a motorist in a city street, approaching a pedestrian crossing, will reasonably assume that the pedestrians assembled on the footpath will observe the lights which control the crossing. Most people drive as though it may be expected that other road users will be reasonably careful. At the same time, it is often judged reasonable to expect a motorist to allow for the possibility that some other road users will be inattentive or even negligent." I interpolate that the same consideration applies to the duty of an occupier: Nagle v Rottnest Island Authority (1993) 177 CLR 423; (1993) 76 at pp 430 – 431. 1. Questions of breach of duty in this case are of course to be determined in accordance with the provisions of Divisions 1 to 5 of Part 1A of the Civil Liability Act. The starting point is the correct identification of the relevant risk of injury against which it is said Fitness First ought to have taken precautions. In this regard it is well to remember that Mr Karaoglu's case has two limbs. The first is that reasonable care was not taken to maintain the apparatus in good order and repair so as to eliminate any unnecessary risk of injury to a person using the apparatus because of a defect. The second was that reasonable care was not taken to provide instruction to him in the correct use of the machine to eliminate unnecessary risks of injury arising out of its ordinary user. 2. Looked at in this way, the correct identification of the risk of injury involves the risk of personal injury arising out of the unexpected descent of the weight bar from the top stop limit of the supports as the user was in the process of dismounting from the apparatus. Section 5B Civil Liability Act establishes the fundamental considerations: was that correctly identified risk both foreseeable and not insignificant; and in the circumstances would a reasonable person in Fitness First's position have taken the posited precautions having regard to the provisions of s 5B(2). 3. The plaintiff's case so far as defect is concerned is that the weight bar fell or moved off the supports as he attempted to dismount from the apparatus, bringing the footplate into heavy contact with his head for one of three reasons: either the rubber bumpers were out of alignment, damaged or missing; or the spring referred to at JCB 263 was out of adjustment; or, I interpolate as a last resort, that the yellow arms of the subframe supporting the weight bar were not fitted with the triangular lugs on their underside which might have provided restraint to the descent of the weight bar had the supports been out of position. 4. Mr Karaoglu's case concerning instruction is that the pictogram affixed to the yellow subframe was entirely inadequate to explain to the user the proper operation of the apparatus. Reasonable care therefore required Fitness First to instruct him and demonstrate proper operation of the apparatus and in particular achieving the "locked" or 1 o'clock position of the supports before lowering the weight bar to the centre of the top stop limits and removing one's feet from the footplate to dismount. 5. Quite clearly, in the circumstances each of these questions involve the resolution of primary questions of fact as to what happened and why. It is logical to determine these questions before considering whether if negligence might otherwise be established the matters of exoneration pointed to by Fitness First including under Div. 4 and 5 Civil Liability Act apply. 6. In determining these questions of fact, in cases of negligence involving the workings of apparatus or machines beyond the experience of ordinary people, the inferential reasoning process referred to as res ipsa loquitur is not available: Piening v Wanless (1968) 117 CLR 498; [1968] HCA 7. This principle does not exclude other processes of inferential reasoning: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18. As Dixon CJ said in Jones v Dunkel at 304: "In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in negligence and one which they establish to the reasonable satisfaction of a judicial mind". The circumstances established by the evidence must do more than give rise to conflicting or competing inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture: Broadshaw v McEwans Pty Ltd, High Court of Australia unreported 27/4/1951. What happened to Mr Karaoglu and why 1. To my mind, from the analysis of the evidence I have already provided, a number of matters of fact are reasonably clear and can be comfortably found. First, it is virtually beyond question that Mr Karaoglu suffered an injury while he was dismounting from the Technogym 45-degree leg-press apparatus on 25 June 2015. The footplate descended as he was rising from the user's position and struck his head hard. This is supported not only by his own evidence, unsatisfactory as it is in so many ways, but also by the evidence of Mr Stanford, who was present on the evening and he subsequently viewed the CCTV footage, Ms Burt and Mr Tassone who both also gave secondary evidence of what was recorded in the CCTV footage which was not produced at the hearing. The evidence of Ms Burt, although challenged in many ways was not challenged in respect of this basic fact. Nor was the evidence of Mr Tassone disputed in this regard. 2. Probably, on the basis of the same body of evidence, the descent of the weight bar drawing the footplate down was precipitated by Mr Karaoglu taking hold of it to pull himself free of the operator's position. 3. The essential mechanism of the descent of the footplate involved the weight bar separating from the supports' top limit stop and descending to the reclined position. This is the effect of the evidence of Dr Stark and Dr White and on which they both agree. Again, it is also the evidence of Mr Karaoglu that this occurred and, in this regard, he is supported by Mr Stanford, Ms Burt and Mr Tassone. 4. It is also abundantly clear to me that Mr Karaoglu's evidence about the manner of his completion of his repetitions and in particular having brought the supports into the "locked" position with the weight bars resting on the centre of the top stop limits must be rejected. It is directly contradicted by evidence of the mechanical engineers upon which they both agree. If the weight bars had been brought to rest in the centre of the top stop limits, there was and could be "no accident". On my appreciation of their evidence, this is so whether the supports were in the "locked" position, or the weight bar had been brought to rest in that position at some intermediate point of equilibrium short of the 1 o'clock or locked position. This compelling evidence of the engineers, and what I have already said about the many unsatisfactory features of the presentation of the plaintiff, lead me to reject his evidence about the procedure he followed to bring the apparatus to rest prior to attempting to dismount. 5. This then leaves a consideration of the other possibilities thrown up by the evidence. First, the weight bar separated from the top stop limits on its supports because of a maladjustment of the rubber bumpers below the main frame. Secondly, the weight bar separated from the top stop limits of the supports because of a maladjustment of a spring fitted somehow to assist the achievement of the proper "locked" position. Thirdly, the weight bar separated from the top stop limits on the supports because the weight bar arms on the yellow sub-frame are not fitted with triangular lugs which may have, in the event of either of the two prior scenarios or a combination of them being in play, provided enough support to maintain the weight bars on at least the edge of the upper support limits. Fourthly, Mr Karaoglu inattentively failed to bring the supports on a well-maintained Technogym leg-press to the full lock position before attempting to dismount and the weight bar separated from the top stop limits on the supports because they lost equilibrium and moved forward towards the recline position causing the footplate to descend as Mr Karaoglu was rising from the user's position. 6. In assessing the evidence as to the first three possibilities, I will bear in mind that no satisfactory explanation has been given for the absence of Mr Robbie or, indeed, his electronic "job card" recorded on the Emergence program. However, as I have said, the significance of those matters will depend upon the question whether the evidence in any event supports the affirmative drawing of an inference of negligence in any event. The Jones v Dunkel inference available to be drawn from the unexplained absence of this potentially important evidence does not entitle me to draw an inference of negligence which is not otherwise available from proved circumstances. That is to say, neither a Jones v Dunkel inference, nor, for that matter, a Blatch v Archer [1774] 1 Cowp 63; 98 ER 969 approach, which in many cases may amount to the same thing, enables me to fill in gaps in the plaintiff's case. 7. The first possible scenario can be dealt with fairly shortly having regard to the evidence of the engineers including Exhibit 1 which is Mr White's explanatory video during which he attempted to replicate the alleged failure by modifying the position of the rubber bumpers. Given the design and construction of the apparatus including that the supports were in truth part of the one U shaped component, it was common ground between the engineers that both rubber bumpers would need to be maladjusted, damaged in the same way or missing for their condition to cause the weight bar to separate from the top stop limits in the manner necessary to cause Mr Karaoglu's injury. It seems to me that the probabilities are simply against this. That is to say, it seems improbable that both would be equally affected or fail at the same time, especially in circumstances where there had been no prior suggestion of any irregularity in the operation of the apparatus. But I would go further. I was very impressed by Dr White's demonstrations. As his oral testimony established, and my viewing of Exhibit 1 confirms, all his various attempts to replicate the accident by maladjusting the bumpers failed to cause the requisite separation of the weight bar from the stop limit. It was only when Dr White completely removed both bumpers that the supports moved far enough back from the 1 o'clock position, to say 2 o'clock, to enable the weight bar to pass the supports unimpeded. And that is what happened during his demonstration. It was not a case of the weight bars teetering on the edge of the stop limits then falling. When the bumpers were removed, the weight bars made no contact with the top stop limits in their descent to the lower or reclined position. In all other instances of maladjustment some contact was made with the upper stop limits, which was sufficient to support the weight bars, accepting that in the demonstrations they were not laden with 240 kgs. Even when one bumper was removed and the other maladjusted sufficient contact between at least one weight bar and its corresponding top stop limit to support the sub-frame and restrain the footplate's descent. 8. Part of the beauty of the simple mechanical operation of the apparatus is, as Dr White said, an element of redundancy. Provided the bumpers were in place, even if maladjusted there was sufficient contact between them and the weight bar to support the whole sub-frame. 9. I am not satisfied that there is an available inference, more probable than other competing inferences, that the accident happened because of maladjustment or damage to the bumpers. I regard it as highly improbable that both would have been absent. As I have said, even were that the case, the accident could not have happened in the manner described by Mr Karaoglu. It seems to me that for this scenario to have any degree of probability one would have to postulate that the maladjustment developed, or the damage was sustained or the bumpers fell out completely between the start of Mr Karaoglu's ten repetitions and their conclusion. 10. Even if the absence of Mr Robbie and his records invites an inference that their availability would not advance Fitness First's case, there is no available inference favourable to the plaintiff which can be more readily drawn because of their absence. 11. Clearly, the second scenario depends upon the particular leg-press used by Mr Karaoglu at Fitness First's Auburn gym being fitted with the relevant spring. With respect, that has not been established. Neither Dr Stark nor Dr White, the latter of whom had examined a number of exemplars of the leg-press, had in their previous investigations been aware of the existence of such a spring designed to assist in bringing the supports back to the locked position, or any spring at all. 12. Mr Tassone's evidence on this topic is unsatisfactory. He is not a technician. While he possibly may have assembled and disassembled many of these machines, his evidence about the purpose of the spring was entirely hearsay. It may not have been objected to, but that consideration does not render it any more reliable. He made it clear that his understanding was solely based upon what technicians had said to him. I do not find it a sufficient basis for comfortably drawing an inference, not just about the existence of the spring on the subject apparatus, but its function, and a conclusion that the accident happened because of its maladjustment. 13. Dr White and Dr Stark were given the opportunity to consider the Technogym manual during a break in the proceedings. That opportunity did not persuade them that the model of leg-press the subject of the proceedings was fitted with the spring in question. 14. From the Technogym manual (JCB p. 263) the spring depicted in fig. 6.2-1 is said to be a feature of apparatus fitted with "levers with easy start". There is no evidence that the model in use on 25 June 2015 at the Fitness First gym at Auburn was equipped with "levers with easy start". The demonstration contained in Exhibit 7 shows that the supports on the model tested can be manoeuvred into a stationary position other than the 1 o'clock position which would not be possible on the hypothesis put forward by Mr Tassone. It is only Mr Tassone who gives this evidence and as I have said, it is hearsay. 15. From the Technogym manual (Exhibit JCB 259 – 260), the spring is located below or behind the upholstery of the operator's seat in equipment to which it is attached. It's removal and adjustment involve five steps involving the use of three different handtools. Thus, the process of disassembly and reassembly for the purpose of adjustment is likely to take some little time, certainly more than Dr White's 1 minute to remove the rubber bumper with a shifting spanner. While I have some doubts about Mr Tassone's evidence about what Mr Robbie did while the former was viewing the CCTV footage, there is nothing in the evidence to suggest that he may have undertaken the process shown in the manual, other than his absence. 16. Given the hearsay nature of Mr Tassone's evidence about the spring and the doubts of the professional engineers, JCB 263 notwithstanding, I am not satisfied on the balance of probabilities that such a spring was fitted to the apparatus used by Mr Karaoglu at the Auburn Fitness First gym on 25 June 2015. It follows I am not satisfied that its maladjustment was the cause of Mr Karaoglu's accident. I repeat a Jones v Dunkel inference of itself cannot make good the absence of persuasive evidence. 17. I turn now to the possibility of the absence of the triangular lugs from the underside of the weight bearing arms of the yellow sub-frame. Obviously, their absence could not itself be a cause of the accident. Their possible relevance depends upon the consequences of some other defect which I have rejected. The purpose of the lugs was not established in evidence. The engineers were not able to say definitively what their role was except that they seem to have been deliberately added to the underside of the weight bearing arms of the yellow sub-frame on the models inspected and photographed. A photograph taken by Mr Karaoglu of another exemplar did not depict them. But that may have been simply because they were not in view from the standpoint of the photographer. However that may be, I am not satisfied that when present they were some kind of backup device in case the supports for the weight bearing arms failed or were out of alignment. That they may have been capable of incidentally providing a degree of support to the weight arms in the case of some maladjustment of other components does not prove that reasonable care required them to be fitted to every leg-press apparatus. Fundamentally, however, Mr Karaoglu has not proven that they were absent on 25 June 2015. 18. Of the various possibilities thrown up by the evidence, only one is left and that is that through some inattention or otherwise on the part of Mr Karaoglu, he failed to bring the supports fully back to the locked position before lowering the weight arms onto the top stop limits. That is to say, he brought the weight bars down onto the top stop limits inattentively while the supports were in a position of near equilibrium but short of the "locked" position. While they were in that position, which was of itself unstable, his action in taking hold of the footplate to lift himself from the chair caused the weight bars to separate from the top stop limits on the supports. The downward movement of the weight bars brought the footplate into hard contact with his head, knocking him back into the chair and probably causing a short period of loss of consciousness. I am satisfied from the evidence of the engineers and from viewing Exhibit 7 that this is a possible consequence of inattentive operation of the leg-press apparatus. It's also consistent with what Mr Stanford says that Mr Karaoglu said to him on the evening of 25 June 2015; and consistent with the impression of him, Ms Burt and Mr Tassone formed from viewing the incident on the CCTV footage. Whatever criticisms might be levelled at Ms Burt's evidence, at least in this respect, her evidence fits in with the evidence of Mr Stanford and Mr Tassone. I have detailed the shortcomings of the evidence of each of them, however, in circumstances where they all agree on this important point, I am not of the view it can be discounted. 19. I am left in the state of persuasion that this possibility is at least of equal probability as the other possibilities put forward by Mr Karaoglu to justify his case based upon a failure to maintain the apparatus. And in the circumstances, I am necessarily left in the position where I am not persuaded on the balance of probabilities that a defect due to a failure to exercise reasonable care to maintain the leg-press apparatus caused Mr Karaoglu's injury. 20. I will now deal with the question about whether Mr Karaoglu has proved a failure to instruct. There are a number of matters here. First, it is accepted by the engineers that the pictogram as shown in Exhibit F and as displayed on the leg press machine is inadequate to convey the necessary information about its safe operation. Secondly, the terms of the contract between Fitness First and Mr Karaoglu cast responsibility on him to ask for instruction if necessary. Thirdly, and most importantly, by 25 June 2015 he was a very experienced bodybuilder well versed in the use of the Technogym 45 degree leg-press apparatus. He had used the particular machine at the Auburn gym frequently without difficulty since he joined the gym on 10 June 2015 until the date of his accident. Moreover, he regarded himself as being better qualified than the Fitness First staff in the use of the equipment. Had he had a problem, which he did not, he might have consulted one of his friends whom he respected, but he did not regard the others as qualified to advise him on the use of gym equipment. 21. Even had the exercise of reasonable care on the part of Fitness First required it to instruct Mr Karaoglu as an affirmative obligation prior to allowing him to use the apparatus, I am not satisfied that he has proven that he would have accepted and followed instruction given his attitude, his previous experience and his familiarity with the apparatus. I am not satisfied that on the balance of probabilities that Mr Karaoglu has proved the necessary facts to establish negligence on this basis. 22. On my findings of primary fact, Mr Karaoglu's case in negligence has not been established, and I am obliged to enter judgment in favour of Fitness First. In the circumstances, it's unnecessary for me to consider specific matters of defence or exoneration relied upon by Fitness First. 23. Obviously, Mr Karaoglu had made good his claim of defect in the apparatus, it would hardly have been an obvious risk within the meaning of s 5F of the Civil Liability Act and according neither s 5G nor s 5L would have been in play, although undoubtedly using the apparatus was a recreational activity within the meaning of s 5K. 24. Given Mr Karaoglu's evidence that he was aware that the weight bar may have been unstable if the supports were not properly brought back into the "locked" position, absent defect, that risk of harm would have been an obvious risk and Fitness First would have been under no duty to instruct or warn him about that risk: s 5H. Moreover, the materialisation of the risk as occurred on 25 June 2015 on this hypothesis would have been the materialisation of an obvious risk of a dangerous recreational activity: s 5L. 25. Had I been of a different view in terms of Mr Karaoglu's case based on the failure of Fitness First to instruct him in the proper use of the leg press, his knowledge of the risk and his inattention constituted by failing to bring the supports to the "locked" position would have justified a finding of contributory negligence. I would assess his contribution to the cause of the accident in those circumstances as 40 percent. 26. Fitness First did not press a defence based on the materialisation of an inherent risk: s 5I. A defence based on an exclusion clause in the membership contract was also abandoned. Contingent findings as to damages 1. As I have said in June 2015, Mr Karaoglu was a young man of 21 years of age. He is now 29. He is single. He attended public schools and completed his HSC in 2011. As a child he was treated for ADHD and has given a history of pre-existing anxiety and panic attacks. 2. Prior to his injury, he had formed a relationship with a young woman he met when visiting a friend in hospital. She suffered from a terminal illness and died in August 2014 (JCB p. 7 [26]; JCB 741). He told Dr Dinnen that she had died about one month before his accident. In any event, he suffered from untreated depression following her death. He suffered similar problems when a good friend of his from primary school who had a severe disability died on 30 June 2014. In his evidential statement (JCB 830) he said he was "a bit depressed and socially withdrawn". He took a break from his studies towards a diploma of science at the University of Western Sydney which he had commenced in February 2014. He had hopes to eventually qualify as an automotive engineer, like his father. 3. Prior to the injury, he was working in his father's business on a casual or spasmodic basis. It was voluntary work. His father had a background in motor sports and conducted an automotive business in respect of performance vehicles. While not having any trade qualifications Mr Karaoglu said he was able to do practical work on the vehicles which were largely racing and show cars and for that reason did not require registration. 4. The case presented on behalf of Mr Karaoglu is that he suffered physical injury as a result of the blow to his head on 25 June 2015. It is accepted on his behalf that the balance of the evidence does not support ongoing physical injury and disability. Instead, it is argued relying really for this purpose solely on the evidence of Dr Dinnen that he suffers from a conversion disorder, which manifests itself in neurological and physiological symptoms. These symptoms are claimed to be severe neck and back pain and perhaps most significantly bladder, bowel and sexual dysfunction. In my view it is necessarily implicit in the concession that notwithstanding the nature of the original injury, it is accepted that the bowel, bladder and sexual dysfunction, none of which manifested itself until much later, have never at any time had a neurological or physiological basis. 5. Mr Morris and Mr Davis presented a Schedule of Damages (MFI 11), totalling $2.7m. No claim is made for past economic loss or for past domestic assistance and attendant care. Otherwise, ample claims are made for non-economic loss, future loss of earning capacity, future loss of superannuation benefits, future domestic assistance and attendant care on a commercial basis, past out of pocket expenses (in the sum of $6,377.45), future medical expenses and an allowance for domestic aids and appliances. 6. It is the defendant's case that other than a temporary or self-limiting physical injury suffered on 25 June 2015, there were no injurious consequences, physiological, neurological or psychiatric, flowing from the accident. The necessary implication in the defendant's case is that Mr Karaoglu had fully recovered from any injury suffered by the time he returned to the gym in September 2015, at the latest. 7. Fitness First submits that no damages are payable. There is no claim for past economic loss or domestic assistance. The only medical treatment received was an attendance at a public hospital for which no charge was raised. If it is accepted that Mr Karaoglu suffered a temporary injury only from which he recovered within three months, Fitness First argued that the severity of the non-economic loss represented by such a matter for the purpose of s 16 Civil Liability Act must be assessed at less than the threshold of 15 percent of a most extreme case. 8. On the night of his accident, Mr Karaoglu was taken by ambulance to Westmead Hospital (Exhibit JCB 706 ff). After giving the history of the incident, Mr Karaoglu complained of a loss of consciousness for a period, a loss of feeling in both legs, but sensation return after "[a] few seconds". He had a headache, but no visual symptoms. On examination, his central nervous system was grossly intact; power, sensation, motor, proprioception in the upper and lower limbs were intact, but the doctor was unable to elicit a reflex bilaterally. There was tenderness at the T4-6 level in the thoracic spine and Mr Karaoglu's "anal tone" was intact. CT scans taken were reported as "no abnormality detected". There was tenderness in the intrascapular region on re-examination, but no neurological symptoms were found. Mr Karaoglu was discharged with paracetamol and Neurofen. He was advised to see his doctor or to return to hospital for further investigation if new neurological symptoms emerged. As I have said, it is the fact he did neither. 9. It is the incontrovertible fact that after being discharged from Westmead Hospital on 26 June 2015, Mr Karaoglu did not consult a doctor about the effects of the incident until he mentioned it to his general practitioner, Dr Nicholas Harvey on 22 July 2016, more than 12 months later. He then gave a history of the blow to the top of his head, numbness in his upper legs, which according to his evidential statement was transient, developing into "less urge to defecate, with constipation and less anal sensation". Dr Harvey's findings on examination were restricted to the constipation issue, although he did prescribe Voltaren for backpain and referred Mr Karaoglu to Dr Peter Brimage, a Neurologist. 10. It is also incontrovertible that on 5 August 2015, about 6 weeks after the accident, Mr Karaoglu consulted a Dr Jay Lin complaining of a painless lump on his left earlobe which was first noticed 8 months earlier and was slowly enlarging. He complained of ear pain (Exhibit DSB 2 1858 – 9). Mr Karaoglu gave no history of the injury or any consequences of it notwithstanding that he had been advised at Westmead Hospital to seek medical attention if his symptoms persisted. 11. He consulted a Dr Kwok Chung Wan on 4 October 2015 complaining of constipation, "especially if he eats junk food" and requesting laxatives. No history was given of the injury and there was no suggestion that the symptom of constipation was related to the incident historically or otherwise. 12. Mr Karaoglu consulted a Dr Min Fang on 18 December 2015 giving a history of an injury to his pectoralis muscle. No history is recorded, but given he had resumed weight training, the obvious inference is that it was gym related injury (91.41-50T, 92.1T). No history was given of the injury of 25 June 2015. On 15 February 2016 he consulted Dr Jay Lin again seeking medication to help him cease smoking which he had previously used successfully. Again, no history of the injury was given nor was any complaint made of any symptoms possibly referrable to it. 13. Mr Karaoglu acknowledged that he had received advice at Westmead Hospital to consult his doctor (65.3 - .9T). He agreed that he regarded the injury as minor and felt "it should be ok". He had no concerns about it (65.45 - .49T). 14. Notwithstanding these objective facts including the absence of any further medical complaint for over 12 months, in his evidential statement Mr Karaoglu stated that he was in a lot of pain and found it very hard to leave the house. He spent a lot of his time in bed or lying down on the loungeroom floor. He had balance problems if he stood up and he was in a lot of pain (JCB 16 [66]). He was not able to walk 100 metres to the BP service station or 170 metres to his father's workshop unless he had pain medication (JCB 16 [67]). 15. When he saw Dr Dinnen on 3 May 2018, he gave a history that after the injury he was bedridden for "months on end". He stated that it took him 6 to 8 months to get around on his own and in the meantime, he was looked after by his mother. He told Dr Dinnen that he did not obtain prescription medication from the doctor "because he considered that he had an addictive personality and expected he would prescribed opiates". 16. Once again, the objective facts are quite different. During the trial there was much attention paid to what his bank records showed about the use of his ATM card. A schedule attached to Mr Morris's Supplementary Submissions of 25 March 2022 as Appendix A demonstrates in the period from 26 June 2015 to 30 June 2016 his card was used frequently at places such as Darling Harbour, Guilford, Lidcombe, Macquarie Park, Merrylands, Olympic Park, Parramatta, Pemulwuy, South Grandville and West Ryde. Although the purpose of the Schedule is to show that Mr Karaoglu's movements were more restricted than in the pre-accident period, they are in my opinion certainly inconsistent with a person who was bedridden or even housebound because of pain. 17. Mr Karaoglu returned to the gym, on his statement, on 10 September 2015 and he continued to attend the gym in each month until he consulted Dr Harvey. In October 2015, he attended on 15 occasions; November 20 occasions; December 13 occasions; January 2016 14 occasions; February 2016 8 or 9 occasions; March 19 occasions; April 13 occasions; May 12 occasions; June 18 occasions; and July 8 occasions (124.4 - .35T). 18. It is also the case that he commenced work with a labour hire company, Works 4 You Pty Ltd on 24 August 2015. Although he said the work was beyond him and he was fired after 2 weeks, his group certificate for the financial year ending 30 June 2016 shows that during that period he received gross pay of $2,046, $1,785 net. This seems to be the first time he ever had a paying job. 19. As Mr Catsanos and Perla submit, the plaintiff's case on damages entirely depends upon the acceptability of his evidence of his symptoms, their development and their effect on him. Much of the cross-examination of Mr Karaoglu was directed to matters relevant to the damages case. Frankly, I am not persuaded that I can accept him either as an accurate medical historian or as a witness of complete truth in relation to those matters. A potentially important issue was the question of the onset of his bladder, bowel and sexual dysfunction. As Mr Catsanos pointed out, the history to medical referees varied. For instance, to some he gave a history of the onset within days of the accident or at least shortly after it. To others, he claimed it was over 12 months later. In evidence, he claimed that he started getting odd symptoms after 3 months (66.6T). He later accepted that the history he had given of onset after a few days was incorrect. He accepted that it wasn't until 2016 that he began to have anything that sounded like those problems. When it was put to Mr Karaoglu, "that's a year's difference" he responded (95.1 - .16T): "Yes, sir. I'm not very good with timelines." 1. It is important to bear in that throughout the period since his accident, the plaintiff has largely resided with family. His parents or his sister would have been able to corroborate his complaints if they were true. Mr Karaoglu had said that his family had "seen [him] suffer on a day-to-day basis, and they're quite aware of [his] court case" (108.8 - .9T). 2. Although, as I have said, the plaintiff's case is presented as a purely psychiatric one, I wish to make it clear that I am not satisfied that the plaintiff suffered any significant spinal or spinal cord injury on 25 June 2015. I appreciate, as I have said more than once, that it is accepted by counsel that there is no spinal cord injury. However, less there be any doubt about a spinal injury more generally, I prefer the evidence of Dr Simon Kinny to Dr Medhat Guirgis. Dr Kinny stated that the radiological evidence, which he had reviewed, suggests "that there was no significant damage at all to the discs of the thoracic spine" (519.20T). 3. Having regard to the history of Mr Karaoglu's resumption of and persistence with gym training from September 2015 onwards, Dr Kinny opined at (520.45T): "Had he suffered a significant thoracic spine injury that's causing pain that's more than just trivial, he would not have been able to train to that level of intensity during that period and that suggests to me that, any initial injury, pain, that he suffered in the 2015 incident, had settled for a significant period of time, during which the claimant was able to go back to the gym. Dr Kinny also said that the circumstance that Mr Karaoglu was an extremely fit well-muscled young man at the time would not make any difference to that opinion. He explained (521.15T): "Some of the exercises involve putting himself in a posture where he would be putting significant mechanical stress on the allegedly injured parts, and I do not believe he would be able to do some of those exercises, if he were getting pain from those parts. So, I don't think he would be able to carry on those exercises, even if he was already well-muscled. 1. Dr Kinny was also of the view that Mr Karaoglu had no lumbar spinal injury connected to the accident. He pointed to a delay in the onset of symptoms. Despite his youth, Mr Karaoglu had congenitally short pedicles and an MRI scan taken approximately 2 years later showed two slightly bulging discs and some facet joint wear. Dr Kinny felt this suggested a slow degenerative process was occurring, notwithstanding Mr Karaoglu's youth. The congenitally short pedicles would make him prone to back pain "particularly if they are performing heavy physical activity, in this case, gym training" (523.36T). 2. Turning then to the psychiatric injury, I have in broad terms summarised the different opinions of the psychiatrists above. To my way of thinking it is significant that Dr Harvey did not consider referring Mr Karaoglu for psychiatric assessment until July 2019 more than 4 years after the accident. 3. The history received by Dr Phillips was of anxiety "precipitated by the gym incident in June 2015". I interpolate it is common ground that Mr Karaoglu was a lifelong sufferer from anxiety and panic symptoms. However, Mr Karaoglu denied any past history of anxiety disorders to Dr Phillips. He did mention his ADHD (JCB 877 – 8). Mr Karaoglu gave, what is in fact, a false history of investigations showing him to have suffered damage to his spinal cord (JCB 875). He complained of his bowel and bladder problems as well as constant numbness in his legs. While it may be necessarily implicit in his report, Dr Phillips did not expressly state that the conditions diagnosed were caused by the accident. He regarded the physical symptoms as aspects of a physical injury. Mr Karaoglu's fitness for work was dependent upon the prognosis for the physical injury (JCB 879). 4. Dr Dinnen in fact saw Mr Karaoglu once only. Dr Dinnen received the correct past history of ADHD and pre-existing panic attacks and anxiety from which Mr Karaoglu had suffered for "most of his life" (JCB 741). Dr Dinnen at that time treated the psychiatric symptoms as a result of physical injury. It was for that reason he diagnosed Adjustment Disorder with anxiety and depressed mood. He said (JCB 742): "The psychiatric disorder is the least important of his ongoing problems, which certainly suggest to me that he had spinal injury to the lower spinal cord affecting control of bowel, bladder and sexual function." The hypothesis of spinal injury has, of course, now been dispelled. It was for this reason that Dr Dinnen reviewed his diagnosis in his second report of 13 October 2021 (JCB 743 ff). He explained his change of view in the following terms (JCB 746): "The absence of any neurological injury of an ongoing nature to cause the symptoms which the patient reports, particularly where the experts are in full agreement that his symptoms are psychogenic rather than neurological, can only be interpreted as causing either a conversion disorder or a somatic symptom disorder, according to our current state of classification of psychiatric disorders. In essence, what the diagnoses can convey is the patient's physical complaints are of psychogenic origin, without any organic, physical, neurological or medical basis to cause them. Classic examples dating back to the first world war are hysterical blindness, Freud's cases of hysterical paralysis or conversion disorder and a venerable history of hysteria and hysterical illness." 1. As I have said, Dr Samuell was unable to arrive at a definite diagnosis, but was not prepared to exclude feigning or malingering. 2. Dr Dinnen related the conversion disorder he diagnosed to the incident of 25 June 2015 because Mr Karaoglu related his bladder, bowel and sexual dysfunction to that incident. Dr Dinnen said (554.34T): "Well, again, the history that I got was that these problems had developed over that first period of months. Like, he'd been reluctant to complain about it, or admit to it, and eventually had been left with no option but to report to his local doctor, a year later, and my assumption was, that those symptoms had gradually developed over time, following the original injury". (My emphasis.) 1. Dr Dinnen had also said that he related the physical manifestations of the conversion disorder to the injury (547.40T): "Because the account he gave to me, was that his condition derived, insofar as his ongoing bowel and bladder problems were, from being hit on the head with a 240 kilogram weight at the gym." 1. Dr Dinnen said two things of potential significance in the context of the case in terms of an assessment of the genuineness of Mr Karaoglu's complaints of the bowel, bladder and sexual dysfunction. The first is contained in this question and answer (543.45T): "Q. Somebody tells you, for example, they have difficulty walking and then at that same time they're riding a motorcycle that might cause you to contemplate the potential for feigning or malingering, is that fair to say? A. Absolutely." The second matter is that in forming an overall opinion as to the nature of the patient's history, corroborative information is always very helpful, particularly from those close to the patient (551.30T). 1. I found these matters significant for these reasons: first, Mr Karaoglu does have an interest in riding pocket motor bikes. This was an area where he was not forthcoming in cross-examination. It was the perfect example of his caginess, only making occasional admissions when he felt he had to. Motorcycles of this type, or perhaps minibikes, are illustrated in social media printouts forming part of Exhibit 2 from page 47. Mr Karaoglu eventually admitted to riding such a motorcycle at a public racecourse on two occasions but sought to underplay the extent of his involvement. His involvement with these matters was the subject of extensive cross-examination from 204.33T to 242.10T. I formed the very firm view that Mr Karaoglu was not telling the whole truth about his involvement in this activity. 2. This material also feeds into the question of corroboration in as much as he gave evidence that his father was the one performing necessary mechanical work on his motorbike (239.40T, 241.45 - .50T and 242.1 - .8T). As I have said, the father was not called to corroborate those matters. 3. It was also apparent from that cross-examination based largely on Mr Karaoglu's engagement in social media that he drove not insignificant distances to participate in this activity. To my mind it provided a snapshot into his lifestyle albeit a brief one which is inconsistent with the large measure of disability he claims. 4. It's possible that Mr Karaoglu may have a conversion disorder. However, given the inconsistencies and the absence of corroboration, I am not persuaded that that inference is more likely than the inference that he is feigning his disability. 5. Were I wrong in that conclusion, I would not be satisfied on the balance of probabilities that the conversion disorder was caused by the accident of 25 June 2015. From the passages in Dr Dinnen's testimony, which I have extracted, it is quite clear that the expert had in mind the onset of the concerning symptoms within at most a few months of the accident. In fact, leaving aside constipation, which necessarily seems to be something completely different from faecal incontinence, the earliest corroborated instance of the latter, is on 29 January 2017, when Mr Karaoglu attended Concord Hospital with a history of being unwell for a period of 4 days after the consumption of junk food. He was suffering from profuse diarrhoea, vomiting and jaundice. He was admitted under the care of the Infectious Diseases Team with a diagnosis of salmonella enteritis. Other diagnoses were acute renal failure on admission due to dehydration and liver function derangement. Incidentally he gave a history of being a personal trainer and "admits to injecting steroids weekly – testosterone replacement". I should record that Mr Karaoglu claimed that the reference to testosterone was erroneous and that he mentioned testolone, which is not a steroid. 6. I am not satisfied on the balance of probabilities that there is a sufficient temporal connection, even if a very relaxed and evolving one is sufficient, between the accident and the onset of the physical manifestations of what is said to be a conversion disorder. He has had many psychological stressors in his young life. For these reasons I am of the view that the plaintiff has not proved other than a temporary physical injury resulting from the accident of 25 June 2015 which had resolved by the time he recommenced regular gym work in September 2015. In my judgment this would not cross the s 16 threshold and there are no other heads of damage applicable during the period of disability. 1. For these reasons my orders are: 1. Judgment for the defendant; 2. The plaintiff to pay the defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Amendments 08 February 2023 - Various minor errors of proof reading corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2023