Case description
The New South Wales Court of Appeal has upheld an earlier finding of negligence against a gym operator for failing to enforce its own rules requiring members to put weights away after use and, alternatively, failing to ensure staff put the weights away.
The background
On 4 February 2016, Ms Powell (respondent), a 42-year-old “very fit” woman, attended New Dimensions Health and Fitness Centre (New Dimensions) in Leonay NSW to do an individual weight session on a Smith Press. Before the respondent could begin her weight session, she needed to clear a clutter of weight plates around 25kg (some heavier) left on the floor during “tradies hour”. On the last lift to clear the floor, the respondent twisted and injured her back, resulting in a disc protrusion which required a series of surgeries.
The respondent sued JFIT Holdings Pty Ltd (the appellant), the operator of New Dimensions, in negligence.
The decision at trial
On 4 June 2020, the New South Wales District Court found the appellant negligent and awarded the respondent $551,097.62 in damages.
The trial judge determined the appellant owed a duty to the respondent in circumstances where the New Dimensions staff daily tasks list recognised a need to clear weights from the gym floor. Whilst the appellant placed warning signs to members of potential suspension or cancellation if they did not follow the rules, there was no evidence that the system was implemented or that the rules were ever enforced.
The trial judge had no difficulty establishing the appellant’s breach of duty because a reasonable person would have taken precautions to have staff inspect the weights area for tidiness and safety, and then put away unused equipment back onto weight racks. On the issue of causation the trial judge found the weights being left on the floor was a hazard and, if the area was clear, the respondent would not have had to lift any weights off the floor to clear the area.
The issues / grounds for appeal
The appellant appealed the trial judge’s decision on the basis that (amongst others): (a) the risk of harm was formulated too narrowly; (b) the risk of harm should not have been considered “not insignificant”; (c) the trial judge erred in finding a breach of duty; and (d) any breach was not causative of the respondent’s injury.
Court of Appeal decision
On 8 July 2021 the Court of Appeal, comprised of White JA, Simpson AJA (leading judgment) and Harrison J, upheld the trial judge’s decision and dismissed the appeal.
Firstly, the Court of Appeal accepted the appellant’s submission that the risk of harm was formulated too narrowly and focussed on the precise circumstances of the respondent’s claim. However, as the appellant’s submission did not explain how it might have affected the outcome, the appeal point was rejected.
Secondly, the significance of the risk was upheld as being “not insignificant”. As it is a matter of common knowledge that lifting heavy weights (particularly off the floor) could cause a back injury, and the risk of leaving weights littered on the floor without enforcing a system where members returned weights to racks (or ensuring staff cleared the floor of weights), the risk of harm was not insignificant. Further, the appellant’s submission that the respondent attended the gym to use weights anyway was distinguished from the fact that it was not the respondent’s intention to lift weights of 25kg or more without a trainer, and certainly not off the floor.
Thirdly, the Court of Appeal considered that the appellant was aware of the “tradies hour”, and therefore could have and ought to have implemented a system whereby staff were present to insist on compliance with rules (to put the equipment away) or, failing that, for staff to put the equipment away during this troublesome window. “Tradies hour” was a period between 3-5pm on weekdays where tradies frequented the gym, and apparently had a habit of leaving used equipment on the gym floor.
Finally, on the issue of causation, the Court of Appeal agreed with the trial judge that it was necessary for the respondent to clear the weights off the floor in order to perform her desired exercise. Given the appellant’s failure to implement and enforce an appropriate system, the conduct of the appellant’s employees caused the respondent’s injury.
Implications for you
It is all well and good to put up a sign asking members to put away their used weights with the threat of repercussions. However, unless the gym operator enforces the system requiring members to “pull their own weight” or clears the hazards itself, there is a risk of a finding of negligence. This is particularly the case where there was a known hazard during “tradies hour”.
JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell [2021] NSWCA 137 (8 July 2021)
