Powell v JFIT Holdings Pty Ltd t/as New Dimensions Health and Fitness Centre [NSWDC 2020]

Key Takeaways

In this recent case a gym member who severely injured her lower back tidying up heavy weights left abandoned by others was awarded very substantial damages without deduction for contributory negligence and Civil Liability Act 2002 defences involving recreational activity and waiver were ruled not to apply.

This case serves as a reminder that while a close and careful focus on facts is generally necessary in addressing issues such as breach of duty and causation in tort and ACL cases, less common issues such as consumer guarantees and the host of statutory defences in the Civil Liability Act 2002 also require thorough investigation and attention.

Brief Facts

Ms Powell sued JFIT Holdings Pty Ltd, the owner and operator of the New Dimensions Health and Fitness Centre, Leonay NSW, alleging negligence in respect of a lower back injury. She suffered a lumbar disc prolapse while lifting weights from the floor. She did this to clear the floor of weights left by other members in order to commence her workout. This apparently occurred just after ‘tradie hour’ and the condition of the gymnasium floor at the time was described as ‘disgusting’.

Signage around the gym reminded members to put away weights and equipment after use. This was not followed and no staff had been rostered to supervise the area.  

As a result of the injury Ms Powell required a series of surgical procedures and evidence tendered to suggest she had exaggerated the severity of her injuries was rejected.

Judgment

Risk of harm

The defendant submitted that the relevant risk of harm was no greater than the risk of suffering injury whilst lifting up a weight and putting it away.

Levy J considered this to be too narrow as it ‘failed to recognise the avoidable untidy and hazardous circumstances that prevailed in the weights area of the gymnasium under the defendant’s watch.’ The important distinction made was between the risk of injury occurring during the course of exercise and the risk of injury while lifting weights during what were in effect housekeeping activities.

Waiver/exclusion of liability

The opening paragraphs of s5N of the Civil Liability Act 2002, which is titled ‘Waiver of Contractual Duty of Care for Recreational Activities’, provide:

1. Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.
2. Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term.
3. A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.

The defendant sought to rely upon the contractual waiver contained in the terms and conditions of the contract of membership to exclude liability for the incident.

S5N also defines “recreation services” to mean services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity.

Levy J gave due consideration to the meaning of the term ‘recreational activity’, which is defined in s5K of the Act as follows:

“recreational activity” includes--
(a) any sport (whether or not the sport is an organised activity), and
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

His Honour focused on the ‘three distinctive limbs’ of the definition, which in turn were directed to characterisation of the relevant activity (clearing the weights), its purpose (to enable recreational activity to take place) and its location (in the weights area of the gym which due to its untidy state had been effectively blocked from use).

Levy J found on this basis that Ms Powell was not engaging in any recreational activity when she suffered the injury. In characterising her activity in this three-limbed way, his Honour applied the structure of s5K and the reasoning of Leeming JA in Goode v Angland [NSWCA 2017].

His Honour was therefore able to conclude that the plaintiff had not yet actually commenced any recreational activity at the time of the lifting incident.

ACL consumer guarantee prevails in any event

In case the above distinction did not dispense with the contractual waiver defence, the plaintiff also sought to withstand the defendant’s contractual waiver (and contractual exclusion of liability) argument by reliance upon the Australian Consumer Law (ACL). His Honour rejected the defendant’s response to this secondary argument, which involved the plaintiff having the benefit of the consumer guarantee in s60 of the ACL, which provides:

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

In rejecting this attempt by the defendant to salvage the relevance of its contract term titled ‘Responsibility’ setting out the relevant waiver and exclusion, his Honour accepted the plaintiff’s submission that the consumer guarantee must prevail over the potential exclusion. In doing so, his Honour had regard to s64 of the ACL (which operates to preserve the consumer guarantee in the face of a contractual provision to the contrary) and ss5N(6) of the Civil Liability Act 2002, which provides:

This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety.

Breach of duty caused injury

His Honour went on to find that the defendant came under a duty of care involving requiring staff to tidy and clear away weights left lying around. The defendant conceded that it was aware of the foreseeable risk of harm arising from the failure of members to put weights away. It was also accepted that a range of significant injuries could occur in the area if it was left in an untidy state and that the precaution of monitoring and tidying the area was not an unreasonable one for the defendant to undertake.

Ms Powell relied upon the opinion evidence of a physical fitness expert whose opinions remained unchallenged and uncontradicted by any expert of like qualifications. The defendant was found to have breached the duty of care owed to Ms Powell and causation was established.

Contributory negligence

The defendant submitted that there should be a finding of 50% contributory negligence, essentially based on the premise that the plaintiff ought to have asked for assistance to move the weights. His Honour found that there was no case for a deduction for contributory negligence and noted in this regard that nobody was at the defendant’s reception desk and that other contract trainers on the premises were conducting classes in other areas.

Implications

Cases involving the statutory concept of recreational activity often present interesting and difficult challenges. In this case the s60 ACL consumer guarantee and the characterisation of the activity at the time of the injury both served to render ineffective the statutory defences that were thought to be available.

Contributory negligence might also have been thought to have been a good defence on an initial reading of the facts. The more complete context as presented at trial led to that defence also failing.