You need to lift big to gain big (damages)

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

Gymnasiums have diminished a great deal from their heyday in ancient Greece. Weights are commonly thrown onto the floor after use, often with some vigor. It’s necessary sometimes to pick weights up off the floor in order to clean up your area, as a prelude before you pick weights up off the floor for the sheer joy of exercise.

On 4 February 2016, the plaintiff attended the defendant gym and found some weights scattered in the intended workout area. The plaintiff attended the gym after what was colloquially referred to as “tradies hour”.[1] Tradespeople, otherwise notorious for being very tidy and cleaning up thoroughly after a job, would apparently attend the gym in the early afternoon and leave their weights strewn across the floor.

The plaintiff saw at least two weight bars in the intended workout area and at least six disc‑plates, one weighing at least 25kg.[2]

The plaintiff acknowledged having previously used a 25kg plate as part of a workout, but asserted that the action of putting away a plate was quite different to the action of using the plate during the workout.[3]

In attempting to place the 25kg plate back onto a weight‑rack, the plaintiff suffered a serious lower back injury. Unfortunately, the plaintiff required four major spinal surgeries and several rhizolysis procedures. The plaintiff suffers ongoing pain and may come to require a four‑level fusion in future.

It was found that gym staff did not clean weights off the floor during the busy afternoon session.[4]

The Court found the defendant gym was negligent, entering verdict and judgment for the plaintiff.
Our observations
There were two issues in the judgment that we thought noteworthy; first, the manner in which the “risk of harm” was determined per s5B, and secondly the Court’s finding that the plaintiff was not engaged in a “recreational activity” per s5K.

The defendant had submitted that the relevant risk of harm should be “the risk of suffering injury whilst lifting up a weight and putting it away”.[5]

The Court formed a different view and differentiated between the risk of harm from lifting heavy weights in the course of the “housekeeping” activity of tidying up; as compared to the risk of lifting heavy weights as part of a workout.[6]

This differentiation was similarly applied in the Court’s finding that the plaintiff was not engaged in a recreational activity at the time of injury. The Court found that while the plaintiff intended to engage in the recreational activity of a workout, at the time of injury the plaintiff was “engaged in the preliminary activity of clearing a space to enable that activity to proceed”.[7]

Supporting this reasoning, the Court offered an analogy: A jogger intends to go for a run and must first put on his running shoes. The running shoes are concealed behind some debris, and in trying to retrieve the shoes the jogger is injured. That injury could not be seen as incidental to the recreational activity of running.[8]

The Court’s dissection of the workout into a “recreational” and “housekeeping” phase is interesting. It is difficult not to notice that every action of “recreational” weight lifting necessarily concludes with the “housekeeping” weight lifting that comes with returning the plates to the rack. It might appear artificial to say that a 45‑minute workout is in fact 8 discrete recreational workouts punctuated by 8 or more discrete housekeeping activities.

You may recall however, in our earlier blog Dangerous Recreational Activity, that the Court in that matter took a somewhat similar approach and compartmentalised the broader activity of engaging in a photoshoot into the discrete activity of walking to the location of the photoshoot. Regard must therefore be had to the particular event engaged in at the time. How deeply an activity is compartmentalised will remain an issue of contention.
 
 
[1] [30].
[2] [71].
[3] [75].
[4] [29].
[5] [122].
[6] [124].
[7] [142].
[8] [146].

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