In Powell v JFIT Holdings Pty Ltd t/as New Dimensions Health and Fitness Centre [2020] NSWDC 264, the Court heard that Ms Powell suffered serious injuries while lifting the weights from the floor so that she could workout. The facts state that there were no staff rostered on to supervise the area and ensure that members followed directions to put away equipment and weights after use.
The defendant submitted that at the time of the injury, Ms Powell was engaging in an exercise programme at the gym and all three limbs of the definition of “recreational activity” were met.
Section 5N of the Civil Liability Act 2002 (NSW) (the Act) provides:
- 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.
- 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.
- 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 recreation services 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.
Section 5K of the Act defines a recreational activity to include (among other things) “any sport (whether or not the sport is an organised activity [or] any pursuit or activity engaged in for enjoyment, relaxation or leisure…”
The Judge found Ms Powell had not yet commenced any recreational activity at the time of moving the weights from the floor but that she was preparing to carry out her exercise regime. Further, Levy J stated she could not safely commence her activity until the floor of the weights area had been cleared of mess and obstructions.
It was held that the gym’s duty of care involved requiring staff to tidy and clear away weights not packed away by its members and that it had breached its duty of care to Ms Powell. There was no finding of contributory negligence. Ms Powell was awarded a sum of $551,097.62 and an order that the defendant pay her legal costs as assessed.
