Headnote

On 3 October 2023, the NSW Court of Appeal comprising Stern JA, Mitchelmore JA and Simpson AJA dismissed an appeal advanced by an experienced-gym user.

The issues on appeal included:

1. Whether the primary judge erred by failing to draw proper inferences of fact as to the existence, function and maladjustment of a spring on a leg press machine.
2. Whether the primary judge failed to decide a material issue of whether the gym breached its duty to warn; and
3. Whether the primary judge erred by concluding he was not satisfied the plaintiff suffered from a conversion disorder caused by the incident.

Moray & Agnew acted for Fitness First Australia, the successful defendant at first instance and the successful respondent, on appeal.

The material facts

The plaintiff was an experienced gym user. On 25 June 2015, he attended Fitness First Auburn. He commenced a workout on a leg press, which he had loaded with 240 kilograms worth of plates. He completed ten repetitions and then rose to exit the machine. In doing so, the footplate descended and collided with his head, rendering him unconscious.

The plaintiff commenced proceedings against alleging the gym owed him a duty of care as a lawful entrant and that it breached that duty through its negligence. The allegations were numerous and included a failure to maintain (or install safety features on) the leg press and a failure to instruct and warn.

The plaintiff claimed damages and alleged significant injury, including a conversion disorder.

The Supreme Court Proceedings

After a 9 day hearing, Campbell J dismissed the claim.

Justice Campbell was satisfied that the plaintiff’s inattention as a cause of the incident was equally as probable as the claim advanced that the incident occurred due to some failure to maintain or install safety features on the leg press.

Relevantly, Justice Campbell formed an unfavourable view of the plaintiff’s reliability. His Honour concluded that there was no reliable first-hand account of how the incident occurred.

In the absence of any defect being established, Campbell J held that there was no duty to warn. The plaintiff was aware that the weight bar may have been unstable if the supports were not properly brought back into the locked position. His Honour was not satisfied the plaintiff would have followed any instructions provided by the gym as to the safe use of the leg press even if that instruction had been given.

Finally, in view of the adverse assessment as to the reliability and accuracy of the plaintiff’s evidence and the lack of corroborative evidence, His Honour was not satisfied that the plaintiff suffered a conversion disorder caused by the incident.

The Appeal

The appeal was dismissed on all grounds.

The decision is of interest to insurers and gym operators in Australia.

Their Honours’ analysis begins at page 17 of the judgment.

Error as to findings relating to a spring on the leg press

The plaintiff alleged that Justice Campbell erred by failing to draw proper inferences of fact as to the existence, function, and maladjustment of a spring on the leg press.

On appeal, the submission advanced on behalf of the plaintiff was that that the proper inferences to draw from the facts were that the leg press was equipped with a spring (or ought to have been because it was a fail-safe mechanism).

The plaintiff’s contentions were based on an employee of Fitness First agreeing with suggestions put to him in cross-examination that there was a spring on the leg press that served to ensure that the supports came up into the correct position. This evidence was not supported by the engineering experts. Diagrammatic instructions for the assembly of the leg press did not include any indication that the leg press should be fitted with a spring.

Ultimately, their Honours concluded the Fitness First’s employee’s evidence ought not to be given any weight whatsoever. It was based upon a false premise that pictures shown to him during cross-examination were pictures of the leg press used by the plaintiff at the time of the incident when it was in fact not the same machine.

It followed that there was no evidentiary foundation for the contention that the leg press had, or ought to have had, a spring. It also followed that there was no evidence that the leg press was somehow defective on account of a lack of spring.

The alleged failure to warn

The plaintiff alleged the primary judge erred by failing to consider whether Fitness First breached its duty to warn him of the need to fully engage the lever of the leg press to fully engage the locking mechanism.

The relevant findings of the primary judge included:

1. The plaintiff would not have accepted or followed instruction as to the use of the leg press; and
2. There was no duty to instruct or warn of a risk of harm that the weight bar may have been unstable if the supports were not properly brought back into locked position because the plaintiff’s evidence was that he was aware of this.

Their Honours were satisfied that Mr Karaoglu was aware that both handles had to be fully engaged to raise the supports into the correct position before lowering the weight bars and that the weight bars had to be properly resting on the top pads to be supported in a stable state.

There was no basis for the contention that a warning would have prevented the incident from occurring.

Further, there was no evidence the plaintiff would have acted differently had any warning or instruction been provided.

Findings as to injury

In view of their Honours’ finding that no liability was established on the part of Fitness First, they considered the remaining grounds concerning the challenge to findings in respect of injury.

Their Honours were not persuaded that Justice Campbell erred in finding that Mr Karaoglu did not suffer from a conversion disorder. Their Honours concluded that the submissions before them did not challenge Campbell J’s inference that Mr Karaoglu was feigning his disability was no less likely than the conclusion that he sustained a conversion disorder.

No conversion disorder was made out.

Ultimately the plaintiff’s evidence lacked corroboration. The claimed sum of damages for $2.7 million therefore failed.

Key takeaway

This case is a welcomed decision for gym operators.

Their Honours’ conclusion that Fitness First owed no duty to warn the plaintiff, an experienced gym user who had appropriate familiarity and apprehension of the risks associated with equipment, of the relevant risk of harm is sensible and consistent with the proper operation of s 5H of the Civil Liability Act 2002 (NSW).

It highlights the dangers for a plaintiff who ultimately confines their case to failure to warn allegation. Where the risk is obvious, as was here in this case, there is no duty owed for a failure to warn.

The decision also serves as an appropriate reminder that Plaintiffs must “do more” than present a possible scenario. The court must be satisfied, to a sufficient degree, of the elements of a claim. When a plaintiff’s credit is in issue and there is a lack of corroboration, inferences should not be drawn as to material facts.

Further information / assistance regarding the issues raised in this article is available from the author, Brian Moroney, Partner, Megan Sault, Associate or your usual contact at Moray & Agnew.