In this podcast, BPC Law Partner and Accredited Personal Injury Law Specialist, Courtenay Poulden, discusses the duty of care in gymnasiums.
Transcript
Dan: It goes without saying that gyms and injuries often go hand in hand. But where does the liability lie with respect to injuries that may have been caused by the negligence of the gym? Well, an interesting case of Powell and J. Fit in 2020, which went on appeal earlier this year and was consequently dismissed, shed some light on the current judicial thinking in this regard. Now to learn more of this case and its ramifications, I’m with accredited personal injury law specialist and multi-award winning compensation lawyer, Courtenay Poulden. Courtenay, at the outset, can you give us a factual background of this case?
Courtenay: Yes, I can Dan, and the facts are, in fact, very, very important, and that’ll become apparent when we discuss the way that the Court of appeal looked at it. We’ve got a situation where there’s an out of Sydney gymnasium, pretty much the usual variety, nothing different about it. We’ve got, my client, who was the plaintiff, used the gym just about every day, and her policy was to go in at five o’clock after she worked. Now, this gym was used very heavily by what the judge called the tradies.
What that means is after the early starters and early finished workers would go into the gym and use it, and there’d be a large group of them, and on this particular occasion, they had left a lot of weights and equipment all over the gym floor. So that when Mrs. Powell arrived, she had to move some of that heavy equipment in order that she could get access to the machine to do her own gym training session. In doing so, she had to lift some very heavy weights out of the way and caused a significant injury to her back. So it’s on those specific facts that the court found for her, both the Judge, Judge Levy in the district court, and later the three judges of the Court of appeal.
Dan: Courtenay, before we start discussing the actual appeal, are these types of cases becoming more frequent before the courts?
Courtenay: They are, Dan, and I’ve had a number of gym cases. This particular case of power was a bit unusual because of its facts and the way that the plaintiff was injured. But I’ve had a number of cases which have involved gyms being negligent in either failing to take a proper medical history prior to advising about a programme so that the programme would take account of any pre-existing problems and otherwise implementing a training programme that was too hard or wasn’t suitable for the gym attendee.
Those kinds of cases are becoming increasingly common as we get more people using gyms for a fitness for their fitness regime, and as we seem to get less experienced people working in gyms who don’t have the necessary experience to properly implement and advise on what a training session, what’s good for you may not be good for me. I personally have had a lot of experience in gyms and physical activity, so I would go there and know a fair bit about what I wanted to do. But if you’re a novice and turned up to the gym and said, Listen, I just want to get fit. What do you recommend? Well, the gym instructor has to take very careful regard for what the background is to your training and make sure that it’s a programme that’s staged effectively to properly cater for your needs.
Dan: Courtenay, this particular case does highlight the duty of care that gyms do have to their members, particularly in relation to their own surrounds.
Courtenay: That is so. I think we need to bear in mind, and Justice Harrison said this in the Court of appeal that this case pretty much turned on its own facts. I don’t think it’s authority for the legal principle that every time you have to pick up some gym equipment from the floor, the gym’s liable because it was left there. But in particular circumstances such as these, the gym in this case had issued warnings in the past to the tradies, and indeed had sent round communications by Facebook to members generally about their obligations. But the court found that that wasn’t enough.
But it wasn’t enough in this particular circumstance where there was a large amount of people all arriving and leaving the gym at the same time, and there was nobody from the gym staff there supervising the putting away of equipment or themselves taking steps to clean up the gym. It was that foreseeability, which was very important to the judges on these facts alone. But certainly, gyms are an area where injuries and accidents are common. Another issue of the case, which you and I had been discussing earlier, was the question of the waiver that you sign when you go into gymnasiums to say, Look, you accept the risks. Well, that is so. But not all waivers are binding, and in this case, for some technical legal reasons, the waiver wasn’t binding on the plaintiff, and therefore she succeeded.
Dan: Courtenay, were you surprised that the matter went to appeal?
Courtenay: Indeed, uncommon to find appeals from what we thought was a fairly common, easily arguably case. But in any event, the insurance company took it on and went to the Court of appeal, who didn’t pay fairly short trip to the to the appellant’s appeal, and fortunately for Mrs. Powell, she was successful. But a lot of hard work went into preparation of the case. We had expert evidence from an expert in the fitness industry as to what’s a reasonable expectation of a fitness center or a gymnasium.
We had some strong evidence from neurosurgeons about the connection between the lifting act and the serious injury that Mrs. Powell had, which led to her having surgery on two occasions. So it wasn’t a matter of just turning up and setting out the facts. We had a lot of background support from expert evidence. Not only that, we were able to cross-examine the operators of the gym, including the person who was on duty at the time, and get them to make some admissions in evidence about what they knew about the risk and what they could have done to avoid it.
Dan: Courtenay, Beilby Poulden Costello have a strong proven track record in these types of matters. Did that have any bearing on the outcome of this particular case?
Courtenay: Well, we prepare our cases properly and that was reflected in the outcome both in the District Court and in the Court of Appeal.
Dan: Courtenay, what’s the take home message for both members of gyms and the gyms themselves?
Courtenay: Well, if you’ve had circumstances where… Well, firstly, we’ll deal with the gym owners. It’s a reminder to them that if you’re going to provide a product which inherently creates some risk and dangers, you’ve got to take steps, unreasonable steps to prevent as many problems as you can, recognising that some things are unavoidable and you wouldn’t advise a client to sue over. For the gym attendee or the gym member themselves, if you are injured in circumstances where you think that there was not proper care taken by the operator of the gym or some particular instructor that you should seek advice and see if your particular facts lend themselves to a potential claim for compensation.
Dan: Courtenay, what about time limits in these types of matters?
Courtenay: Yes, time limits are always important. You’ve got three years to bring proceedings from the date that the cause of action becomes recognisable. You really should just work on the basis any proceedings have to be filed within three years. One of the difficulties I found in gym cases, and I still have a number of them on my books at the moment, is that gym instructors come and go and owners of gyms close down for either economic reasons or they’re bought out by bigger companies, and it becomes more difficult as time goes on to make sure you can get a proper factual history and you have access to all the records.
So in these cases, I recommend that you take advice as soon as you practically can. As soon as you recognise you’ve got a problem that’s going to give you some an injury, sorry, it’s going to give you some long-term problems, I would act because in a recent case I’ve had the gym has been sold, the instructors moved on, and most of these accidents are followed by some incident report, which is important to get your hands on. So, my rule in gym cases, act quickly to avoid the risk of there being no insurer in place if you wait too long.
Dan: Courtenay, does Beilby Poulden Costello offer a free initial no-obligation consultation in relation to these types of matters?
Courtenay: We certainly do. We certainly do. During that consultation, we’ll get a full factual background as to what have occurred and give some advice as to what documents we can get hold of in the short term. That might involve asking the client to bring with them a copy of their training programme, a copy getting from the gym, a copy of the documents that were signed by the plaintiff and the medical history given to the plaintiff at the time they first attended, all of which will be relevant to our giving some advice as to whether the case has good prospects or not.
Dan: Courtenay, thanks for joining me.
Courtenay: My pleasure, dan.
Thank you for listening. If you have any questions, please call Personal injury lawyers at BPC on 02 8280 6900.