Belna Pty Ltd v Irwin

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Belna Pty Limited v Irwin [2009] NSWCA 46

FILE NUMBER(S):
40212/08

HEARING DATE(S):
26 February 2009

JUDGMENT DATE:
26 February 2009

EX TEMPORE DATE:
26 February 2009

PARTIES:
Belna Pty Limited trading as Fernwood Fitness Centre Parramatta (Appellant)
Kylie Irwin (Respondent)

JUDGMENT OF:
Ipp JA McColl JA Handley AJA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
4157/07

LOWER COURT JUDICIAL OFFICER:
Toner DCJ

COUNSEL:
L King SC/P Stockley (Appellant)
C Stewart (Respondent)

SOLICITORS:
Curwoods Lawyers (Appellant)
Gerard Malouf & Partners (Respondent)

CATCHWORDS:
TORTS - negligence - general matters - whether duty of cared owed - Civil Liability Act 2002 ss 5K and 5M - whether dangerous recreational activity - where respondent injured knee while performing lunges - whether risk warning - whether breach of duty
CONTRACTS - general contractual principles - construction and interpretation of contracts - exclusion clauses - whether clause an effective exclusion clause.

LEGISLATION CITED:
Civil Liability Act 2002

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
The application for leave to appeal is dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40212/08
IPP JA
McCOLL JA
HANDLEY AJA
Thursday, 26 February 2009

BELNA PTY LIMITED t/as FERNWOOD FITNESS CENTRE PARRAMATTA v Kylie IRWIN

Judgment Ex tempore

IPP JA: This is an application for leave to appeal and, if granted, an appeal in an action for damages for personal injuries. The action concerns a knee injury that the respondent, Ms Irwin, sustained in a gym operated by the appellant, Fernwood.
Toner DCJ held that Fernwood owed Ms Irwin a duty of care that it had breached and thereby caused her knee to be injured. His Honour also held that Ms Irwin and Fernwood had entered into a contract ("the Contract") by which Ms Irwin became a member of the gym. His Honour found that Fernwood had breached an implied term of the Contract that it "would exercise reasonable skill and care in its performance". His Honour awarded Ms Irwin damages of $36,093. Fernwood seeks leave to appeal against his Honour's judgment.
After the Contract had been entered into, an employee of Fernwood, Ms Bekiaris, worked out a program of exercises for Ms Irwin to undertake. One of the exercises was "lunging" (an exercise involving leg extensions). Ms Irwin described lunging as follows:
“[A lunge is] where you put one leg in front of the other, like one leg forward and the other one back and you slowly lean forward, putting pressure on the leg that's in the front."
Essentially, the exercise involved extending one leg and putting weight on the knee joint of that leg.
When Ms Irwin first attempted the lunge with her left leg, it gave way and she fell to the floor. She was taken to hospital and it was found she had dislocated her left knee.
Toner DCJ held:
“[T]he enquiry made by the defendant to determine the suitability of the exercise regime - particularly the lunges and the plaintiff's capacity to safely perform them was inadequate and a breach of its duty of care to her.”
On that basis he concluded that Fernwood was liable to Ms Irwin in negligence and for breach of contract.
At trial Fernwood contended that, by reason of s 5M(1) of the Civil Liability Act 2002, it did not owe Ms Irwin a duty of care; that is, either under the general law or under the Contract.
Toner DCJ held that the exercise program undertaken by Ms Irwin was not a "recreational activity" as defined by s 5K of the Act and, therefore, s 5M(1) did not apply to Ms Irwin's claim. Fernwood challenges this finding in these proceedings.
Section 5K of the Civil Liability Act provides:
“Definitions
In this Division:
dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.
obvious risk has the same meaning as it has in Division 4.
recreational activity includes:
(a)any sport (whether or not the sport is an organised activity), and
(b)any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c)any pursuit or activity engaged in, at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.”
Section 5M(1) provides:
“No duty of care for recreational activity where risk warning
(1)A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.”
Section 5M(3) provides:
“For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.”
The basis of Toner DCJ's reasoning that the activities undertaken by Ms Irwin were not "recreational" was that she undertook them to lose weight and get fit. In my view his Honour erred in this regard.
As regards sub-paragraph (a) of s 5K, the Oxford English Dictionary contains many definitions of "sport". Perhaps the most apposite in the context of the statute is "participation in activities involving physical exertion and skill". I would add to this definition the element of participation in those activities for purposes of enjoyment, relaxation or leisure, as s 5K provides. The exercise program undertaken by Ms Irwin involved participation in activities of that kind and, according to ordinary English usage, fell within the meaning of "sport".
As regards sub-paragraph (b) of s 5K, Ms Irwin stated in the questionnaire that her short-term goal in undertaking the activities was to "enjoy life". She stated that her long-term goal was to lose weight and become fit, but this does not detract from the fact that she undertook the activities for enjoyment, relaxation and leisure. The loss of weight and achievement of physical fitness was only a by-product of the exercises that she intended to perform. By analogy, a person who runs marathons in the heat of summer does so for enjoyment, relaxation and leisure, even though she may hope to lose weight in the process.
In examining the three sub-paragraphs of s 5K, I express no opinion as to whether the definition of “recreational activity” in the section is intended to be exhaustive.
As regards sub-paragraph (c) of s 5K, Ms Irwin was engaging in her exercises in a place "where people ordinarily engage in sport or in ... [a] pursuit or activity for enjoyment, relaxation or leisure." The reference in the sub-paragraph to "a beach, park or other public open space" does not confine the general meaning of the other words in the sub-paragraph.
As regards s 5M(1), the appellant contends that the risk warning given to Ms Irwin was the following acknowledgment contained in the questionnaire she signed:
“I understand that Fernwood Fitness Centre is not able to provide me with advice in regard to my medical fitness and that this information is used as a guideline to the limitations to my inability to exercise. I will not hold this club liable in any way for the injuries that may occur while I am on the premises.”
This acknowledgment by Ms Irwin herself did not warn Ms Irwin about any risk involved in the lunge or any other exercise she undertook. Therefore, it was not a risk warning in terms of s 5M.
Accordingly, Fernwood's arguments based on the Civil Liability Act fail.
Fernwood argued that his Honour erred in finding breach of duty by it.
An important fact in the case was that in September 2000 Ms Irwin slipped and fell in a shopping centre and dislocated or strained her left kneecap. Her knee was put in a brace for some months and she took painkillers. She said that after twelve months her knee was "fine" and she "had no problems with it".
In responding to a question in the questionnaire about "joint injuries", Ms Irwin wrote, "Fell over in a shopping centre. Knee." Ms Bekiaris testified that Ms Irwin told her that she had fallen in a shopping centre some three or five years before. Ms Bekiaris asked Ms Irwin whether she had had any problems with her knee since then and Ms Irwin replied that her knee was "fine" and "she had no injury with her knee".
This evidence, I would emphasise, was given by Ms Bekiaris herself. In my opinion that evidence together with the testimony of Mr Trembearth (an expert called by Ms Irwin) was sufficient evidence on which his Honour was entitled to base his finding of negligence. I shall explain later why I come to this conclusion.
I would also refer to evidence given by Ms Irwin that the judge accepted. This evidence was disputed by Ms Bekiaris. Ms Irwin testified that she told Ms Bekiaris that she wanted to make sure that the exercises did not damage her knee “any more” and she asked Ms Bekiaris whether the exercises she had prescribed were “okay”. Ms Irwin said that Ms Bekiaris replied in the affirmative. Ms Irwin was cross-examined about this evidence and, in effect, repeated it.
Mr King SC, together with Mr Stockley, appeared for the applicant. He submitted that this evidence by Ms Irwin was suspect, and submitted further that Toner DCJ should not have accepted it.
The basis of the submission, as I understood it, was that for this evidence to be true Ms Irwin would have had to believe that there was previous damage to her knee and the damage still existed at the time she so spoke to Ms Bekiaris (whereas she had testified that when she spoke to Ms Bekiaris her knee was “fine”).
I do not accept these submissions. The evidence given by Ms Irwin was to the effect that she had had an injury in the past. According to her, she did not say to Ms Bekiaris that she was still experiencing symptoms from the injury, rather, she wanted to make sure that the exercises that were prescribed for her would not damage her knee.
In any event, as I have said, although I do not regard his Honour's finding in this regard as capable of being overturned, I do not think that the finding is critical to his Honour's decision that there had been a breach of duty of care.
Mr Trembearth testified, "It’s well known that with patella dislocation you tend to become more prone to other dislocations." A patella dislocation is displacement of the kneecap. Mr Trembearth said that requiring a person to do a lunge exercise "without much training or preparatory type work" is "really exposing a person's knee joint to a high risk, because it's an unknown quantity". Mr Trembearth explained that the lunge exercise is intended to stress the musculature around the knee joint to make it stronger. He said that if a knee joint was prone to re-injury or aggravation, it should not be stressed.
In the course of cross-examination, Mr Trembearth testified that in his opinion, once Ms Irwin had raised the fact that she had had in the past a knee injury that involved a dislocation or subluxation, which is a strain or partial dislocation of the kneecap, a proper history should have been sought of this injury by Ms Bekiaris from Ms Irwin.
He explained that there would have been a “possibility, in fact a probability”, that there would have been an existing weakness in the area and that was typical of an injury of that kind. He said that it is well-known that, having had a patella dislocation, one tends to become more prone to other dislocations.
The structure of the knee joint had been damaged by the underlying injury to the knee. Mr Trembearth said that that damage could have rendered the knee weaker. Therefore, requiring Ms Irwin to do a lunge exercise without much training or preparatory type work exposed her knee joint to a high risk of further injury.
In cross-examination it was put to Mr Trembearth that Ms Irwin had not sustained a serious injury, she had merely slipped and fallen in a shopping centre. Mr Trembearth replied:
“It was necessary for the gymnasium to ensure that they [sic] had investigated and questioned the person adequately and comprehensively to fully understand the nature of any pre-existing physical or injury type problems."
Mr Trembearth said that Ms Bekiaris should have investigated whether there was anything in Ms Irwin’s history that could give rise to damage or harm; therefore, Ms Bekiaris should have made closer inquiries of Ms Irwin. Ms Bekiaris’s own evidence, as I have mentioned, was to the effect that Ms Irwin told her that she (Ms Irwin) had had a knee injury in the past.
Fernwood's summary of argument accepted that on 10 July 2002 a Dr Huynh examined Ms Irwin generally and took from her a history of her left knee dislocation and tendon strain. That is evidence that Ms Irwin knew the nature of the previous injury she suffered. It was open to his Honour to infer that, had Ms Bekiaris asked Ms Irwin what injury she had suffered, she would have informed Ms Bekiaris that she had had a dislocation or strain of her kneecap.
The thrust of Mr Trembearth's evidence was, firstly, Ms Bekiaris should have asked Ms Irwin about the nature of her knee injury. Secondly, had she been told that Ms Irwin had strained her kneecap and required rehabilitative treatment, Ms Bekiaris should have known it was too risky to require Ms Irwin to undertake lunges. Thirdly, in these circumstances, Ms Bekiaris should not have prescribed this exercise.
It is implicit from Toner DCJ's reasons that he relied on this evidence in finding Fernwood negligent. I am not persuaded that he erred thereby.
Finally, Fernwood argued that cl 7 of the Contract excluded it from liability to Ms Irwin. The clause is in the following terms:
“It is my expressed interest in signing this agreement, to release Fernwood Fitness Centre, its Directors, Franchises, Officers, Owners, Heirs and assigns from any and all claims for professional or general liability, which may arise as a result of my participation, whether fault may be attributed to myself or its employees. I understand that I am totally responsible for my own personal belongings whilst at the Centre. I also understand that each member or guest shall be liable for any property damage and/or personal injury while at the Centre."
There are several problems with the clause. It records an "expressed interest", which is a concept of indeterminate meaning. At best for Fernwood, the clause provides for a release, which ordinarily has effect only after liability has been incurred. A release, ordinarily, is not an exclusion of liability for breaches of duty that may occur in the future. The phrase "professional or general liability" may or may not encompass negligence or breach of contract. The phrase "fault ... attributed to myself or its employees" is difficult to understand. The purpose and meaning of the last sentence of the clause casts further obscurity on its meaning as a whole.
Toner DCJ rightly said, "The clause is not merely ambiguous, it is likely unintelligible". His Honour held that cl 7 was so vague as to be meaningless and could not reasonably be construed as exempting Fernwood from liability as it contended. I agree.
I would dismiss the application for leave to appeal with costs.
McCOLL JA: I agree.
HANDLEY AJA: I also agree.
IPP JA: That will be the order of the court.
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LAST UPDATED:
12 March 2009

[2009] NSWCA 46

26 February 2009

Key Legal Topics

Areas of Law

Negligence & Tort

Contract Law

Legal Concepts

Duty of Care

Breach

Negligence

Appeal

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