On 8 July 2021 the Appeal Court in NSW handed down its decision in the case of New Dimensions Health & Fitness v Powell. In this case Powell went to the New Dimensions gym late in the afternoon. She wanted to use one of the machines, but before she could use it she needed to pick up a number of weights that had been left lying around on the floor around the machine. She bent down to pick up a 25 kg weight to put it on the rack, but in doing that she injured her back.
She sued the gym. The gym defended the claim all the way to the Appeal Court. The gym argued that as part of her membership contract that she had signed a waiver and so she couldn’t sue. The gym also argued that it had done everything that it could do: the gym had a rule that members had to put their weights away after they were finished with them, and, it had put up signs around the gym telling members to put their weights away otherwise their membership could be cancelled, and, it had directed the staff on duty to make sure that the weights were put away. In addition, the gym raised the ‘obvious risk’ defense – it is obvious that you can hurt yourself by picking up a 25kg weight so the gym shouldn’t have to warn Ms Powell to not pick it up. If that wasn’t enough the gym also argued that people have an obligation to do what they can to look after their own safety so she should not have picked up the heavy weight.
The Court dismissed all of the gym’s arguments. The main problem for the gym was that although it had signs and rules and staff with instructions to clean up the weights, the gym did nothing to make sure that the system was actually enforced. The Court said that it could easily have had staff enforce the ‘put away your weights’ rules, or, the staff could have put away the weights themselves, but in fact the gym did neither.
The Court was also not interested in the contractual waiver argument. Under the NSW Civil Liability Act, the waiver only came into effect while the member was undertaking the recreational activity. In this case Ms Powell hadn’t started her exercise program, she was still cleaning up the area around her machine, and so the waiver didn’t apply.
The Court also said that the Gym should know that by allowing weights to be left across the floor that members would be at risk of injuring themselves if they had to move them. It is not a defence to say that members commonly lift weights. Ms Powell never lifted weights of 25kgs and she never lifted them off the floor.
Ms Powell won her case and was awarded damages of a little over $550,000.
The lesson of this case is that if you are injured at a gym or while playing sport, don’t immediately think that you don’t have a case because you signed a ‘gym contract’ or that there are signs around or that the risk of hurting yourself is just one of those things. Get advice and chat to a lawyer about your case.
