Ms Powell successful in her claim against Gym after being injured during “tradies’ hour”

The decision of JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell [2021] NSWCA 137, provides guidance on breach of duty of care for gym operators and whether a risk of harm is ‘not insignificant’. In this case, the gym operator was unsuccessful in its appeal against the primary judge’s findings of negligence and award of $551,097.62 in damages to Ms Wright.

On 4 February 2016, Ms Powell was injured at a gymnasium (New Dimensions) operated by JFIT when she lifted a 25-kilogram weight plate from the floor to store it on a tree rack. The weight plate had been left on the floor along with other equipment, by another user of the gym, and needed to be moved for Ms Powell to be able to do the exercise she intended. 

It was a rule of gym membership that members put away equipment after use, and signs to that effect were posted. However, equipment being left out was a common problem following “tradies’ hour”, which was from 3-5 pm each weekday. A checklist instructed staff rostered on the afternoon-evening shift to “put ALL weights away”. Ms Powell’s injury occurred late on a Thursday afternoon. As a result of her injury she suffered disc protrusion and underwent multiple surgeries.

Ms Powell commenced proceedings against JFIT in the District Court claiming damages for the personal injury she suffered, which she alleged was caused by the negligence of the New Dimensions employees (for which JFIT was vicariously liable). JFIT denied liability, asserted that Ms Powell was contributorily negligent and claimed a defence of waiver. The primary judge found for Ms Powell and awarded her damages of $551,097.62.

JFIT appealed against the findings on liability to the Court of Appeal, asserting that the primary judge erred in failing properly to identify the risk of harm, determining that the risk was not insignificant, finding that there was a breach of duty and that such breach was causative of Ms Powell’s injury.

The Court dismissed the appeal. The Court did state however that the primary judge’s formulation of the risk of harm was unduly narrow and focussed purely and precisely on the circumstances in which Ms Powell suffered her injury. However, the Court noted that the appellant, JFIT, was unable to provide a more general formulation which would, or even might, have yielded a different result.

JFIT argued that lifting weights was part of Ms Wright’s exercise regime. However, the Court noted that she was not in the habit of lifting weights of 25 kilograms at least without a personal trainer, and that her exercise regime did not involve her lifting weights from the floor.

Bernard McAuley

McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
Web: www.mcauleyhawach.com.au
Email: reception@mhl.net.au  

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