Publish date: 02 July 2020
Hugh Powell - Exercise caution or pay the price

Have you ever arrived at the gym raring to go, only to find the weights floor in a mess by those before you? Frustrating, right? With gyms recently reopening, the New South Wales District Court has delivered a timely decision touching on exactly this point.

This was the situation that faced Ms Powell (no relation to me) when she attended the New Dimensions Health and Fitness Centre on 4 February 2016. Confronted with an exercise area scattered with weights left by previous gym users, Ms Powell attempted to clear away an area so that she could exercise. In the course of doing so, she was injured while lifting a 25kg disc weight from the floor.

Ms Powell claimed her injury was caused by the gym’s negligence.
How did the Court approach this? The Court had no difficulty finding that a gym member would be exposed to a reasonably foreseeable risk of injury clearing away awkwardly strewn weights left in an untidy state.

A reasonable response to that risk would have been for the gym to require its staff to undertake inspections of the weights area to ensure it was kept tidy and equipment appropriately stored. The gym’s failure to ensure this occurred amounted to a breach of the duty of care owed to Ms Powell. Accordingly, she successfully established liability against the gym for her injuries.

But what about the usual waiver that gyms require their members to sign? Didn’t that mean the gym was not liable? This particular gym had a liability waiver which was signed by Ms Powell. That waiver excluded liability arising from injury sustained during recreational activities. The problem for the gym, though, was that the injury was not found to have been sustained during a recreational activity. Rather, the injury was sustained during a preliminary activity to recreational activity. This meant that the gym could not rely on the waiver to defend the claim.

Wasn’t she there to lift weights anyway? Yes she was. However, the Court highlighted that the particular weight which caused the injury was left in an awkward location and required Ms Powell to twist and lift the weight to place it on the rack. This was an entirely different movement to that ordinarily performed in the course of a normal exercise program.

Ultimately, the Court awarded Ms Powell damages of just over $550,000.00 – she, unfortunately, suffered a significant spinal injury which required four (4) separate spinal surgeries.

This decision is an important reminder to both gyms and gym users. For gyms to escape liability, they really need to crack down on members who do not tidy up after themselves while also making sure their staff are undertaking routine inspections of the equipment and exercise areas to ensure this is done. Unless that occurs, gyms may find themselves liable for injuries sustained by members who are forced to clean up after others.

Powell v JFIT Holdings Pty Ltd t/as New Dimensions Health and Fitness Centre [2020] NSWDC 264

Hugh Powell
Hugh Powell
Partner & Sunshine Coast Leader
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