| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DROUET -v- GARBETT [2011] WADC 100 CORAM : GOETZE DCJ HEARD : 11-13 MAY 2011 DELIVERED : 24 JUNE 2011 FILE NO/S : CIV 1403 of 2008 BETWEEN : ANDREW DROUET Plaintiff
AND
JEFFREY GARBETT
Defendant
Catchwords: Injury suffered in a gymnasium - Negligence and occupiers' liability - Liability denied - Turns on own facts Legislation: Civil Liability Act 2002
Occupiers' Liability Act 1985 Result: Claim dismissed
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Representation: Counsel:
Plaintiff : Mr G T Stubbs
Defendant : Mr P J Marsh
Solicitors:
Plaintiff : Slater & Gordon
Defendant : Waterside Legal
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Dodge v Snell [2011] TASSC 19
Kerslake v Shire of Northam [2009] WADC 129
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Neindorf v Junkovic (2005) 80 ALJR 341
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Public Transport Commission (NSW) v Perry (1976-1977) 137 CLR 107
Road and Traffic Authority of New South Wales v Dederer [2007] HCA 42
Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Limited [2009] NSWCA 263
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Tame v New South Wales (2002) 211 CLR 317
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40
Vreman and Morris v Albury City Council [2011] NSWSC 39
Wensink v Marshall [2010] WASCA 117
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Introduction 1 On 11 September 2007, the plaintiff Andrew Drouet suffered injury when using a hack squat machine (machine) at the Wanneroo Health Club (gym) owned by the defendant, Jeffrey Garbett. 2 Mr Drouet alleges that the base plate of the machine was slippery from moisture and/or a greasy and/or oily substance and/or other contaminant being on it, in consequence of which he slipped when performing a series of thigh exercises, thereby causing part of the machine to fall onto his back and for him to suffer injury (accident). 3 The claim is brought against Mr Garbett on the basis that he was negligent at common law and that he has also breached his duties under the Occupiers' Liability Act 1985 (OLA). 4 Mr Garbett denies that he was negligent, pleads defences under the Civil Liability Act 2002 (CLA) and alleges contributory negligence on the part of Mr Drouet. 5 This trial concerned only the issue of liability for the accident.
Mr and Mrs Drouet 6 Mr Drouet was born on 6 November 1954. He was therefore nearly 53 years of age at the time of the accident. In earlier times, he was a member of the London Metropolitan Police for some 10 years before migrating to Australia in 1987 with his wife and children. Thereafter, he undertook a number of odd jobs and later he became a bricklayer, before obtaining a 'teaching degree' in 1991. He then remained in the construction industry until he became a field officer in group training for apprentices in the construction industry. He continues that work to the present. 7 Mr Drouet joined the gym at some point between 1991 and 1994. Documentation reveals that he underwent a general medical/physical appraisal on 5 December 1994, as do all new members and also longer term members from time to time. He remained a member of the gym until he went to Busselton for a period of time, returning in mid-2006, when he rejoined. 8 Mr Drouet is married to Elizabeth Anne Drouet. Mr and Mrs Drouet live very close to the gym. (Page 4)
Mr Garbett 9 Mr Garbett was born on 5 July 1960. He is the sole proprietor of the gym, which he has operated for 26 years. The gym moved to its present premises in January 1992. 10 Mr Garbett is a fully qualified gym instructor and personal trainer having completed a six month full time course as well as on-the-job gym instruction, with some TAFE training as well. 11 Mr Garbett worked at New Life Health Academy for two years before opening the gym.
Physical characteristics of the gym 12 The gym is rectangular in shape. The entrance is in the middle of the front which opens onto non-slip tiles. To the left of the entrance inside the gym is the office reception area and to the right is a warm up area. Behind the warm up area are change rooms for men and women, which comprise an area that if excised from the rectangular shape, leaves the balance of the gym in an L-shape. The horizontal part of that L-shape is the front of the gym and the vertical part of the L-shape is the centre and rear of the gym. 13 There are two partial brick walls which separate the front from the centre and rear of the gym at about the point where the horizontal and vertical parts of the L-shape meet. The brick walls are only 1.2 m in height. There are 1 m gaps between each end of the brick wall and the perimeter walls on either side of the gym. There is also a 1.5 m access gap in the middle of that brick wall. 14 The perimeter walls of the gym are essentially lined with mirrors. This enables Mr Garbett to be able to view the entirety of the gym from any position in it in which he might be stationed from time to time. 15 The front warm up area of the gym is carpeted and the floor of the rear of the gym in the area in which the hack squat machine is located is painted concrete. The centre floor of the gym is a hard rubber matted area. 16 There is an exit door and also a roller door at the rear of the gym. This roller door is kept open from time to time as required. (Page 5)
The hack squat machine 17 Dr Stephen Chew, a chartered professional engineer and certified professional ergonomist, provided a report dated 16 June 2010 in which he describes the hack squat machine as follows: 30 - The machine comprises an angled steel frame supported at its bottom by another steel frame resting on the floor, and by an upright steel frame at the top. The upright steel frame is joined to one end of the steel frame on the floor. 31 - The angled steel frame is configured at 45 degrees to the horizontal. There is a steel base plate at the bottom of the angled frame. That base plate is also configured at 45 degrees to the horizontal so that it is perpendicular to the angled steel frame. 32 - There is a padded cross member frame resting on the angled frame. That cross frame member can slide up and down the angled frame. There are two padded projections with two handles at the top of that sliding cross frame. The above combination enables a person using the machine to rest the back of his/her torso on the cross frame member and the top of the shoulders against the bottom padded part of the two projections, and grasp the ends of two handles, to perform the exercise for which the machine is designed. 33 - There are two bars extending from the sides of the sliding cross frame member on which weights are to be placed to enable added pressure to be placed on the person using the machine for the exercise. 34 - The base plate of the machine is fabricated from a steel plate with surface 'check' pattern.
The statement of claim 18 The statement of claim alleges that on or about 11 September 2007, Mr Drouet was using the machine close to the rear of the gym. The base plate of the machine is alleged to have been slippery from moisture and/or a greasy and/or oily substance and/or other contaminant. It is alleged that as a result of the slippery base plate, Mr Drouet slipped whilst using the machine causing the padded cross frame member to fall onto his back and for him to roll sideways off the machine sustaining injuries which were allegedly caused by the negligence of Mr Garbett and/or in breach of his duty under the OLA. 19 The particulars of negligence are as follows: (a) caused or permitted the machine's base plate to become slippery; (Page 6)
(b) failed to take all reasonable precautions for the safety of Mr Drouet while he was using the machine; (c) exposed Mr Drouet to a risk of injury or damage of which Mr Garbett knew or ought to have known; (d) failed to warn Mr Drouet of the risk of injury or damage as a result of the slippery condition of the machine's base plate; (e) failed to keep the machine in a safe and well-maintained condition; (f) failed to carry out any or any adequate inspection of the machine to ensure that it was not slippery; (g) failed to ensure the machine had a safety device to prevent the weights sliding down to the bottom in the event of a user slipping; (h) failed to have or to implement a cleaning system to ensure that the base plate of the machine was not slippery; (i) failed to ensure that the base plate had a lip at its front edge to prevent Mr Drouet's feet from slipping beyond the edge of it; (j) failed to ensure that the base plate had a more slip resistive surface, eg, a rubber surface with a serrated pattern where the serrations are parallel to the front edge of the base plate so as to prevent Mr Drouet's feet from slipping off the edge of the base plate; (k) failed to place absorbent mats on the floor of the premises; (l) failed to instruct Mr Drouet to inspect and wipe any substances off the base plate before he used the machine; (m) failed to provide Mr Drouet with a wiper to wipe any substances off the base plate before he used the machine; (n) failed to instruct Mr Drouet to inspect and wipe any substances off the soles of his shoes before he used the machine; (o) failed to provide Mr Drouet with a mat on which to wipe any substances off the soles of his shoes before he used the machine; and (Page 7)
(p) failed to close the gym doors to the elements, thereby allowing water into the premises.
The defence 20 The defence pleads that Mr Drouet was involved in a simple task which did not expose him to any foreseeable risk of injury. Alternatively, if he was exposed to a foreseeable risk of injury, then there were no reasonably practical precautions which could or should have been taken by Mr Garbett to prevent injury. 21 The defence observes that Mr Garbett engaged in a regular and systematic routine of cleaning the machine and pleads that if Mr Drouet suffered injury, then, such injury was caused solely by, alternatively was contributed to by, Mr Drouet's own negligence. 22 Further, the defence relies on s 5H and s 5I of the CLA on the basis that Mr Drouet was engaged in a dangerous recreational activity, being weight lifting and the harm pleaded by him resulted from something that was an obvious risk of that activity. Further, he was warned of the risks associated with that activity on 5 December 1994 and again on 20 June 2006. 23 Further and in the alternative, Mr Garbett pleads pursuant to s 5O and s 5P of the CLA, that, even if Mr Garbett was responsible for the harm caused to Mr Drouet, then, Mr Drouet is presumed to have been aware of the risk of harm because it was an obvious and inherent risk and the harm suffered by him was not the result of the occurrence of something that could have been avoided by the exercise of reasonable skill and care on the part of Mr Garbett. 24 Hence, liability was denied, although defence counsel did concede that Mr Drouet was owed a duty of care and that he had suffered an injury in the accident.
Evidence
Mr Drouet 25 Mr Drouet gave evidence that he was asked certain information by Mr Garbett when he first joined the gym and he received instruction about gym work and the use of various machines in the gym. 26 At some point later in time, Mr Garbett showed Mr Drouet how to position himself on the hack squat machine, the mechanism that it entails (Page 8)
and how to use it safely. This included the positioning of his feet, the weights to be used on it and how to exercise on it safely. Although he could not precisely recall this demonstration, he was fairly confident that he was shown how to use it, but he certainly would not have used any machine in the gym at any time without knowing precisely how to use it safely. 27 On the day of the accident, there had been significant rain with severe gusts of wind accompanying showers. Mr Drouet could recall spray and drizzle being blown into rear of the gym through the open roller door. At the rear of the gym, he could hear the sound of rubber soled feet on the floor with 'a squeaky noise', which reminded him of a bit of damp underneath. 28 Mr Drouet attended at the gym wearing rubber soled cross trainers or all purpose trainers. He did weights for the first 30 to 40 minutes, mainly in the front area of the gym. He used different weight machines, which included a seated row machine, a leg extension machine, a leg press machine, a bench press machine and a lateral pull down machine. After these exercises, he then moved to the rear of the gym to use other machines and then the hack squat machine. He denied using a leg curl machine. He said that the accident occurred at the commencement of his first set on the hack squat machine. He denied having used the hack squat machine, then the leg curl machine and having returned to the hack squat machine for a second time. 29 Prior to his accident, Mr Drouet placed the weights selected by him on the hack squat machine and he then positioned himself in that machine. He said that the positioning of his feet would only vary fractionally with each use of the machine. Having so positioned himself in the machine, he then raised his legs slightly to take the weight on his shoulders and to disengage the locking mechanism. He then lowered the movable part of the machine to the bottom in order to commence exercise. From that position, he then lifted himself in an upwards direction and as he either got to the top of the movement or as he just began to move down, each of his feet slipped forwards off the plate simultaneously and at great speed because he did not have any time to correct anything. His feet went off the front of the plate, he fell down, his backside hit the plate with the weight of the padded cross frame member on his shoulders. His hands were still holding the two handles. He then felt a sort of explosion of pain in my back and literally rolled off to the right hand side and lay on the floor (Page 9)
30 Mr Drouet believed that the reason his feet came off the plate was because he had something on the bottom of his shoes. He thought this was water having come into the gym from the rain that day and which water was on the gym floor and consequently, was on the plate of the machine or the soles of his shoes. 31 Mr Drouet said that one or two people then came to help him, as did Mr Garbett, who asked what had happened and as far as Mr Drouet could remember, he said to him that Mr Drouet said that he called his wife on his mobile telephone and that he then told her that he had slipped off the machine. 32 Mrs Drouet attended at the gym without delay and an ambulance was called. 33 Mr Drouet also said that he told his wife when she arrived at the gym that his feet had slipped off the plate. He conceded that he has discussed this with her on numerous occasions over the past four years. He denied that he said to her that I can't believe I fucking did that. 34 Mr Drouet also denied that when he first stepped into the machine, his feet were too high on the base plate. He said that to place his feet in that position would be the most reckless, foolhardy and stupid act that anyone would do on the machine.
Mrs Drouet 35 Mrs Drouet gave evidence that when she received the telephone call from her husband, he said that something had happened, that he had had an accident and that he insisted that she come to the gym. Her evidence was that he did not tell her how the accident had happened in this phone call, but that when she arrived at the gym, she asked him what had happened and her husband told her that he had just started to use the machine when his feet slipped out from underneath him and that he landed on his backside on the base plate. (Page 10)
36 Mrs Drouet has been trained in first aid. The roller door at the back of the gym was open. She was concerned that her husband was in shock and would get cold. She could feel the damp on the floor when she knelt down next to him and a light fine drizzle was blowing in. It was, she said, a bit like an English summer's day.
Dr Stephen Chew 37 Dr Chew was the only expert called to give evidence, which he did on behalf of Mr Drouet. However, his report is only of limited assistance to Mr Drouet and that is because he found that water actually increased the coefficient of friction between static rubber soled shoes and the check pattern on the base plate of the machine. In the case of dynamic rubber soled shoes, Dr Chew obtained mixed results. From an actual shoe worn on the day of the accident, which had been subjected to more wear after the accident and before testing, Dr Chew found that water increased the coefficient of friction and for another rubber soled shoe of similar condition to that worn at the time of the accident, the coefficient of friction was reduced. 38 It is agreed between the parties that there is no evidence of oil, grease or any other contaminant on the base plate. 39 Dr Chew did however think that the base plate could be redesigned to incorporate a lip at its front edge that would generally stop a foot from going beyond its edge. In addition to this, a more slip resistant surface on the base plate such as a rubber surface with a serrated pattern or with serrations parallel to the front edge of the base plate could have reduced the risk of foot slippage. 40 The cost of these variations would be 'hundreds of dollars for each. Just an estimate'.
Mr Garbett 41 Mr Garbett said that he purchased the hack squat machine in 1994. It is the third hack squat machine that he has had. It did not come with instructions. It is a basic machine. 42 Mr Garbett gave evidence that he has a cleaner who attends the gym three times per week to undertake cleaning of the gym, including the machines as required, and given that the day of the accident was a Tuesday, the cleaner, Michel Progin, would have attended on that day and undertaken the necessary cleaning. Mr Garbett could not recall Mr Progin attending on that particular day. (Page 11)
43 I pause here to note that Mr Progin also gave evidence to confirm that that was his usual routine was for cleaning, although, he too could not recall having attended on that particular Tuesday and there are no records to support the fact that he did. 44 Mr Garbett gave evidence that he notes people's measurements and details their medical background against their desired objectives for using the gym. It is on these occasions of taking measurements that he instructs would-be users about machinery in the gym. He produced the form concerning Mr Drouet. He does not instruct upon the use of all machines on the first occasion, rather, there is a graduated instruction as users improve in their various techniques, so as to graduate up to higher grade machines, including the hack squat machine. He later instructed Mr Drouet upon the use of that machine. 45 Mr Garbett also gave evidence that he instructs everyone using the machine to place their feet squarely on the plate so that they are both on the same level and normally about 3 to 4 inches at least below the top of the plate, which is about 1 m square in area. 46 The machine is then used by taking the weight by lifting the padded cross form member on the shoulders and disengaging the locking device by moving the handles above the shoulders 90 degrees from the locking position. The user then lowers his or her body position so that the hip is lower than the knee. The body is then raised to its full height. This is then repeated as many times as might be required. 47 Mr Garbett said that the person using the machine holds the handles which act as a braking mechanism. The handles are held in the unlocked position because if they are not so held, then the handles will automatically return to the locking position and catch onto the lugs on either side of the rail. He also said that if the braking or locking mechanism does not engage on the lugs, then, the slide will keep rolling down. The braking mechanism is there to assist users if they get into difficulty in using the machine and Mr Garbett said that he told Mr Drouet how to operate the braking mechanism, by returning the handles to the locking position. 48 Mr Garbett gave evidence that if the user of the machine lets go of the handles, then, they drop back into the locking position so as to prevent any further downward movement of the padded cross frame member. (Page 12)
49 It should be noted here, that, when the accident happened, Mr Drouet held onto the handles in the position in which the machine could be used and did not return them to the locking position, or let go of them. 50 At the time Mr Drouet suffered his accident, Mr Garbett was standing about 10 m away talking to another member of the gym, Charles Pinkard. 51 Mr Garbett gave evidence that Mr Drouet undertook a warm up exercise, then he used the hack squat machine and then he did a set of leg curls in the front of the gym and then he returned to the hack squat machine. In cross-examination, it became apparent that he did not actually see Mr Drouet undertake leg curls, but simply that he exercised in the area where the leg curl machine is located and presumably, by reason that the hack squat machine and the leg curl machine are ordinarily used in tandem with each other to exercise different parts of the thighs, Mr Garbett inferred that Mr Drouet had used the leg curl machine prior to the hack squat machine. 52 Mr Garbett gave evidence, that, Mr Drouet walked back to the hack squat machine for his second set of exercises on it and placed an extra weight thereon before he had his accident. 53 Mr Garbett said that he saw Mr Drouet take up the strain in order to lift the weights on the machine, he pulled the handles into the operating position, he then walked up to the top of the plate and his right foot went off the plate and he fell down. He conceded in cross-examination, that, he would not have been able to see Mr Drouet's feet until they came over the top of the base plate, but he could see his legs above the plate and he saw Mr Drouet taking steps on it to the point where he saw the right foot come over the top of the plate. He disagreed that what he saw was Mr Drouet's feet slipping over the edge of the plate. 54 In cross-examination, Mr Garbett said that at the time of the accident there were 10 to 12 other people in the gymnasium. He was talking to Mr Pinkard and facing towards the mirror on the right hand side of the gym which, on that side, was about 1.2 m in height. He further said that Mr Drouet had been in the hack squat area for about 10 to 15 minutes. Mr Garbett was also observing James Murray, who was adjacent to Mr Drouet undertaking bench presses, because it was necessary for Mr Garbett to shortly assist Mr Murray with his weight lifting. Mr Garbett saw Mr Drouet undertake his first set on the hack squat machine. He saw him load the machine up further for the second set, which is how he knew that a second set was being undertaken. (Page 13)
55 Mr Garbett said that he saw Mr Drouet's accident happen. He further said that Mr Murray went to Mr Drouet's assistance, followed by Mr Garbett. 56 Mr Garbett gave evidence, that, when he attended on Mr Drouet, he had landed on his buttock with his left foot on the machine and his right foot off it. Mr Murray lifted the padded cross member and weights up a little bit, so that Mr Drouet was then able to roll off to one side of the machine and onto his side holding his back. 57 There was then some discussion about Mr Drouet's injury and the need to call an ambulance. Mr Garbett left to make that call. By the time he returned to Mr Drouet, Mrs Drouet was present. Mr Garbett said that in his presence, Mr Drouet told his wife I can't believe I fucking did that. 58 After the accident, Mr Garbett inspected the machine and noticed that it was not wet. Nor was there any contaminant on it. Both he and Mr Murray used the machine and found it to be in perfect working order. 59 Mr Garbett gave evidence that the check plate on the surface is made of aluminium, on top of the steel frame of the plate. 60 Mr Garbett said, that, it would not be practical to have an additional locking mechanism which would stop a carriage travelling down the rails so that the padded cross frame member would not fall onto a person such as Mr Drouet who landed on his bottom on the plate and had the padded cross frame member crash into his shoulders. The reason why this would not be practical is because the machine is designed for all manner of people, including those of less than 5 feet in height and if there were to be a locking mechanism additional to the lugs, then, such people would not be able to use the machine, which is a safer version of exercising on a person's back with a barbell. 61 Accordingly, if there were to be an additional locking mechanism, then a person who might be only 5 feet tall would have to adjust the machine on each use in order to cater for that and that might in itself cause further problems. 62 Mr Garbett also said, that, gym machinery does not have a lip on the edge of plates in case, when the user is stepping off, the user trips over the lip. Further, he said that a non-slip rubber mat would not be feasible (Page 14)
because the plate already had a very sharp check plate on it and that the grip thereof was really good.
James Murray 63 Mr Murray gave evidence that he is a member of the gym and he was just about to lift weights adjacent to Mr Drouet at the time Mr Drouet had his accident. He heard a moan and a crash. He got up, looked around and saw Mr Drouet with his right leg off the machine, his left leg buckled underneath him on the plate and the padded cross frame member of the machine sitting on top of him. 64 Mr Murray lifted the padded cross frame member off Mr Drouet with the assistance of another unknown person. Mr Murray, who was on Mr Drouet's left side, took hold of his left armpit and he and the other person gently lifted Mr Drouet and placed him onto the floor. 65 Mr Murray was of the opinion that this was definitely not Mr Drouet's first set on the hack squat machine. Mr Murray gave evidence that Mr Drouet had been using the hack squat machine for some time or, if Mr Drouet was still on his first set at the time of the accident, then he was taking a very long time to complete that set. 66 Mr Murray was cross-examined. He rejected the proposition that Mr Drouet's left leg was not buckled underneath him, but in front of him. Mr Murray was quite certain of what he saw. He said that his recollection was good. He could vividly remember the scene in his head because he helped Mr Drouet out of the machine. Mr Murray raised the padded cross frame member up a bit 'maybe half a foot, if that' and locked it back in with the aid of the other person. 67 In cross-examination, Mr Murray was quite definite about matters upon which he gave evidence. 68 Mr Murray did not notice any moisture or water on the floor.
Charles Pinkard 69 Mr Pinkard gave evidence that he was talking to Mr Garbett at the time of the accident. He was looking into the mirror on the left hand side of the gym and he noticed that Mr Drouet's feet were half off the plate at the time he was undertaking his workout on the hack squat machine. He was able to observe this in the full length wall mirrors on the left side wall of the gym. He did not see Mr Drouet suffer his accident. However, he did see him on the floor. (Page 15)
70 Mr Pinkard did not comment upon the full extent of Mr Drouet's activities. 71 Mr Pinkard had been using the lateral pull down machine in front of the exit door at the rear of the gymnasium just near the open roller door. He did not notice any moisture or water on the gym floor.
Darcy Boylan 72 Mr Boylan has been a policeman for 23 years and a member of the gym since 1988, such that he is able to recognise Mr Drouet. 73 Mr Boylan said that in about December 2007, he saw Mr and Mrs Drouet at a hardware store in Edgewater. 74 Mr Boylan could see that Mr Drouet was wearing a back brace underneath his shirt and asked how he was going. He said Mr Drouet said to him that he wasn't that flash, because he'd broken his back at the gym. 75 Mr Boylan asked how that had happened and Mr Drouet said he had been using the hack squat and he'd stepped off the end of it. 76 Mr Boylan conceded that he does not have perfect recall and that even taking notes as a policeman as soon as practicable after an event does not mean that the exact wording that is always recorded. However, he did not think that he misheard the word 'stepped' for 'slipped'. In cross-examination, Mr Boylan was insistent that he recalled the conversation correctly and that Mr Drouet had not said that he had 'slipped off' the machine. Cross-examination persisted and he said he was a hundred percent certain that Mr Drouet said that he stepped off the end of the machine.
The credibility of the witnesses 77 It will be clear from the evidence outlined above, that, Mr Drouet's evidence concerning the accident is not consistent with the evidence of other witnesses. 78 First, Mr Drouet gave evidence that his two feet slipped forwards off the plate simultaneously at great speed. He did not have any time to correct anything. His legs went off the front of the plate and his backside (Page 16)
hit the plate with the padded cross frame member still on his shoulder and his hands holding the two handles. 79 In contrast, Mr Garbett said that he saw Mr Drouet walk to the top of the plate and his right foot went over the edge. Mr Pinkard said that he saw Mr Drouet's two feet over the edge of the plate, however he did not see the accident. This observation must have been before the accident. Mr Murray also did not see the accident. 80 Secondly, Mr Drouet said that he rolled off the machine to the right hand side and lay on the floor. 81 Mr Garbett said that when Mr Drouet fell, he fell slightly twisted to one side and that one foot was on the machine and one foot was off it. In cross-examination, he said that Mr Drouet's left foot was still on the machine after the accident. Mr Garbett said that Mr Murray lifted the padded cross frame member so that Mr Drouet could get out and then he rolled off to one side. 82 Mr Murray heard a moan and a crash, got up, looked around and saw Mr Drouet with his right leg off the machine and the padded cross frame member sitting on top of him. His left leg was still on the plate and it was buckled underneath him. He said that he lifted the padded cross frame member and helped to lift Mr Drouet out of the machine and onto the floor. 83 Mr Pinkard left the gym after the accident without walking over to check on Mr Drouet. 84 Mr Drouet, Mr Garbett, Mr Murray and Mr Pinkard are the only witnesses who gave evidence of what they heard or saw. 85 Mr Boylan also gave evidence of a later conversation he had with Mr Drouet in or about December 2007. Mr Drouet said that, at that time, he was probably not wearing a back brace. Mr Boylan said that Mr Drouet was wearing a back brace. Mrs Drouet said that she thought her husband was still then wearing the brace. 86 Mr Boylan gave evidence that Mr Drouet told him that he had broken his back at the gym. Mr Drouet denied having said that. He did not recall speaking to anyone at the hardware store. However, Mrs Drouet said that that conversation may well have occurred. (Page 17)
87 Mr Boylan said that Mr Drouet told him that he stepped off the edge of the plate and fell over, but Mr Drouet absolutely denied saying that. 88 Mrs Drouet said she had never heard her husband use those words before. He had always told her that his feet slipped out from underneath him. Indeed, the evidence of Mr and Mrs Drouet is that when Mrs Drouet arrived at the gym, he told her that his feet slipped off the plate. 89 Mr Drouet accepted that he and his wife have discussed the accident on numerous occasions over the last four years. He had written a statement and they had gone through it together. He had discussed with her what he thought he said to her at the time. 90 After having called the ambulance, which took some time, Mr Garbett returned to Mr Drouet. By that time, Mrs Drouet had already arrived. In that circumstance, Mr Drouet may have said to her, in the absence of Mr Garbett, that he had slipped off the plate as Mr and Mrs Drouet stated in their evidence. 91 It is not necessarily inconsistent for Mr Drouet to have also said to Mr Garbett I can't believe I fucking did that. Mr and Mrs Drouet do not now recall that statement. The reception of Mrs Drouet's evidence as to this was not objected to by the defence on the basis that it rebuts recent invention. 92 Mr Drouet also gave evidence, that, he did not see water on the floor, but, he could hear the sound made by rubber soled shoes on a rubber mat that would not be made under normal, dry circumstances. He thought that the reason his feet had come off the plate was because there was something on the soles of his shoes and, in the circumstances, water was the logical explanation as being in the gym on the floor and consequently on the plate or on the soles of his shoes at the time of the accident. Hence his instruction to Dr Chew at par 15 of Dr Chew's report which reads that 'the soles of his shoes were wet when he stepped onto the hack squat machine and placed his feet on the base plate'. 93 Dr Chew's report then detailed that water actually increased the coefficient of friction between static rubber soled shoes and the check plate. The statement of claim was subsequently amended to include not only water as being a contributing factor to the accident, but also oil, grease and/or other contaminant. Mr Drouet was not cross-examined (Page 18)
about this amendment and I place no weight upon it in terms of an assessment of his credibility. There was however, no evidence of any such oil, grease or other contaminant. 94 However, I cannot accept Mr Drouet's evidence that both feet slipped simultaneously from the plate and that he rolled off the machine given the clear, concise and compelling evidence from Mr Murray to the effect that after the accident Mr Drouet's right leg was out of the machine, but his left leg was buckled underneath him on the plate and that the padded cross frame member was then on Mr Drouet's shoulders as he sat on the plate. 95 Mr Garbett's evidence in cross-examination about the location of Mr Drouet's left foot is consistent with the evidence of Mr Murray. 96 Counsel for Mr Drouet said that there was no expert evidence from a suitable expert to the effect that Mr Drouet's resting position after the accident as detailed by Mr Murray is inconsistent with his left leg having slipped off the plate in front of him. However, if his left foot had slipped off the plate in front of him as claimed, then, it is most unlikely that his left leg would end up buckled underneath his body on the plate with the padded cross frame member on top of him. It cannot be suggested that Mr Drouet moved his left leg to this position after the accident and before Mr Murray and Mr Garbett saw it there. 97 Further, Mr Murray's evidence is to the effect that Mr Drouet had spent some 10 to 15 minutes in the area of the hack squat machine prior to the accident occurring. That is consistent with Mr Garbett's evidence that Mr Drouet was on his second set on that machine, which is contrary to Mr Drouet's evidence that the accident occurred when he first used that machine that day. 98 Even accepting that Mr Garbett was looking at Mr Drouet through mirrors and that there was other gym equipment between his position relative to Mr Drouet on the machine, there is no reason to doubt his evidence. Mr Garbett properly conceded that he could not see Mr Drouet's right foot until it came over the top of the plate but, it has to be accepted that he could see Mr Drouet's legs and what he described as 'walking', which is inconsistent with slipping. 99 Counsel for Mr Drouet engaged in some discussion to the effect that Mr Drouet and Mr Garbett may have been describing the same motion. However, as Mr Drouet put it: (Page 19)
Both my feet slipped forwards off the plate simultaneously and obviously at great speed because I had no time to correct anything and my legs went off the front of the plate and unfortunately I travelled down to the bottom. This is to be contrasted with Mr Garbett's description of the movement as being one of 'walking' and only going over the edge of the plate. Mr Garbett denied that what he saw was consistent with feet slipping up the base. I accept his evidence. Mr Boylan's evidence as to his conversation with Mr Drouet is also consistent with Mr Garbett's evidence. 100 Mr Drouet said the accident occurred when he was either just at the top of his first lift upwards or as he began his first proper downward movement. A preliminary step in performing the exercise is to properly position one's feet in order to perform the exercise and then to take the weight. That would therefore account for Mr Drouet moving his feet into position, but, overstepping the mark. The problem for him is that he appears to have taken the weight before stabilising his feet into position. 101 I find that Mr Drouet is not a reliable witness on controversial matters where his evidence was contradicted by other witnesses and in particular, the independent witness Mr Murray. I accept Mr Murray's evidence as to Mr Drouet's body position after the accident. Mr Garbett's description of Mr Drouet's body position and the location of his left foot after the accident is consistent with Mr Murray's evidence. That positioning is also consistent with Mr Garbett's version of events, namely that Mr Drouet walked over the edge of the plate, with his right foot. That would explain how Mr Drouet's right leg was extended away from his body and why his left leg was buckled underneath his body. The positioning of Mr Drouet's body after the accident is inconsistent with Mr Drouet's version that both feet simultaneously slipped off the plate. Mr Boylan's evidence is also consistent with Mr Garbett's evidence.
Findings of fact 102 My findings of fact are as follows: (1) Mr Drouet walked off the plate ie, he placed his right foot over the top edge of the plate. (2) He then fell with his right foot finishing outside the machine and his left foot buckled underneath his body on the plate, with the padded cross member of the machine falling onto his shoulders, as described by Mr Murray. (Page 20)
(3) Mr Murray and another person lifted the padded cross member off Mr Drouet's shoulders and supported him out of the machine and onto the floor. (4) Mr Drouet gave some thought as to what had happened to him and took the view, that, by reason of the inclement weather and the roller door being open, there must have been moisture on either his shoes or the plate that caused him to slip off it whereas: (5) When Mr Murray lifted the weight off Mr Drouet's shoulders, it was only necessary to lift it 'half a foot'.
Common law negligence and the OLA 103 The claim is brought against Mr Garbett based on common law negligence and the OLA. 104 The particulars of negligence are set out above at [18]. 105 The alleged duty of care at common law can, in a very general way, be expressed as permitting Mr Drouet to use an unsafe machine in unsafe circumstances, and that the machine could have had better design features. 106 The alleged duty under the OLA was that Mr Garbett, as occupier, should have provided such care as was reasonable in all the circumstances to protect Mr Drouet, as a paying client at the gym, from the dangers due to the state of the premises and from anything done or omitted to be done on the premises and for which an occupier is by law responsible.
The duty of care 107 The principles of the common law duty of care are well known. In The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40, 44, Mason J said that: … prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such (Page 21)
that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff. 108 Under the OLA, s 4 and s 5 relevantly provide as follows: 4. (1) Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers - 5. (1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger. (Page 22)
(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; and (g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. 109 In Department of Housing and Works v Smith [No 2] [2010] WASCA 25, Buss JA referred to Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 and said that s 5B of the CLA relates to breach of a duty of care and does not modify or supplant the common law principles which determine whether a duty of care exists or not. 110 Buss JA also said [63] that resolution as to the juridical basis of an occupier's duty of care following the enactment of the OLA has not yet been decided in the Court of Appeal. 111 Counsel have agreed, that, the OLA and the common law relating to the duty of care in occupiers' liability can be regarded as one and the same for the purpose of this case. 112 In Public Transport Commission (NSW) v Perry (1976-1977) 137 CLR 107, 132 Gibbs J said that: It may be taken as settled that in appropriate circumstances a person who has lawfully come on to premises occupied by the defendant can recover damages for injuries sustained by reason of the negligence of the defendant, ie, for breach of the duty defined in Donoghue v Stevenson. In other words the occupier may owe to a person lawfully on his land a general duty of care in addition to the special duty which is owed by an occupier … 113 In Perry there were 'two duties of care existing concurrently, neither displacing the other' (139) (Stephen J). 114 The present case alleged by Mr Drouet fulfils the 'appropriate circumstances' referred to by Gibbs J for a claim based in common law (Page 23)
negligence as well as occupiers' liability. The common law negligence claim is based on the same facts as the occupiers' liability claim, absent the fact of occupation, such that in the circumstances, counsel have also agreed that the two claims essentially merge into the one claim. 115 If the common law negligence claim against Mr Garbett succeeds or fails, then, so too must the occupiers' liability claim likewise succeed or fail, on the facts of this case. There is no need to examine the concept of a duty of care from these different perspectives. 116 The scope of the conceded duty of care owed to Mr Drouet was not identified by counsel.
The standard of care and breach of the duty of care 117 In Shirt,Mason J said: In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors (47 – 48). 118 In Tame v New South Wales (2002) 211 CLR 317 [12] Gleeson CJ said that reasonable foreseeability of the kind of injury suffered is a necessary, but not sufficient, condition of the existence of a duty of care. Foreseeability may be relevant to questions of the existence and scope of a duty of care, breach of duty or remoteness of damage. Reasonable foreseeability is to be applied with due regard to the issue of duty of care, such that it is bound up with the question of whether it was reasonable for (Page 24)
Mr Garbett to have had in contemplation the risk of injury that has eventuated. 119 In Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Limited [2009] NSWCA 263 [268] Campbell JA, with whom McColl JA and Sackville AJA agreed, said: One of the driving concepts in the law of negligence is that of 'reasonable care'. It comes from a recognition that one person's actions or inactions can affect other people and that sometimes the relationship between two people is such that the law imposes a duty on one of those people to take some steps to avoid harming the other. When such a duty is imposed, the extent of the steps that the law requires the first to take in order to avoid harm to the second is measured by the concept of reasonable care. That concept is an objective one in that, as Mason J explained in Shirt, it is dependent upon the steps that a reasonable person would take to avoid the relevant type of harm. That 'reasonable person' is one who exists in a particular society, at a particular point in time. 120 In Wensink v Marshall [2010] WASCA 117, McLure P also referred to Shirt and said: In deciding whether there has been a breach of a duty of care, the court must first ask itself whether a reasonable person in the defendant/appellant's position would have foreseen that his conduct involved a risk of injury to the plaintiff ... . If the answer to that question is in the affirmative, it is for the court to determine what a reasonable person would do by way of response to the risk which calls for a consideration of the magnitude of the risk, the degree of the probability of its occurrence, together with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have: Wyong (47 - 48) (Mason J). However, a failure to eliminate a risk that is reasonably foreseeable and reasonably preventable does not establish breach: Neindorf v Junkovic (2005) 80 ALJR 341; Tame v The State of New South Wales (2002) 211 CLR 317; Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 [36] - [37]. The factual judgment of what is a reasonable response to a foreseeable risk depends on all the circumstances [23] – [25]. 121 Further, in Road and Traffic Authority of New South Wales v Dederer [2007] HCA 42, [18] Gummow J said with respect to the principles relevant to negligence that: These principles may be restated shortly. First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an (Page 25)
obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt. 122 Gummow J also said with respect to occupiers that: …the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case. 123 It could be expected that Mr Drouet would have taken reasonable care for his own safety – Romeo v Conservation Commission (NT) (1998) 192 CLR 431 [40] and Pullin JA in Smith [40]. 124 In Smith's case, Buss JA referred to the High Court's decision in Adeels Palace [27] and said: … that the question of breach of duty must be considered by reference to the relevant provisions of the Civil Liability Act - in particular s 5B [74]. He went on to observe that s 5B(1) relates 'to the standard of care (that is, the measure of the discharge of the person's duty of care)' – [81]. 125 In Refrigerated Roadways, it was said that: Section 5B is not a self-contained statement of the circumstances in which a liability for negligence will arise. Rather, subs 1 sets out three preconditions that must co-exist before a liability in negligence arises, when the type of negligence alleged is failure to take precautions against a risk of harm arising [173]. 126 In Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 [128], McColl JA, with whom Ipp JA agreed, said that s 5B(2) provides the test adopted by Mason J in Shirt (47 – 48) concerning a breach of the duty of care. First, this requires a determination of the existence of a risk of injury and secondly, if there is, then, a determination of how a reasonable person would respond to that risk. 127 Further, in Smith's case [34] Pullin JA, with whom Newnes JA agreed, said that: The standard of care determines what it is that the person under the duty must do to discharge a duty of care. At common law the question to be asked is what, if anything, a reasonable person in that person's position would have done by way of response to the foreseeable risk of that injury. (Page 26)
If s 5B(1)(c) of the CLA operates at this stage of the inquiry the same question arises, that is, whether 'in the circumstances a reasonable person in [the appellant's] position' would have taken the precautions which the respondent alleged should have been taken. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury or damage. See New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [57]. Reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [36]. 128 It is necessary then to set forth the provisions of s 5B of the CLA as follows: (1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. 129 In Smith's case, Buss JA held that 'the criteria in s 5(1) and s 5(4) of the OLA must be read with s 5B of the CLA' – [85]. There is no inconsistency in these provisions relevant to the present case. Relevantly, they provide as follows: 5. (1) … the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, … be (Page 27)
Was there a breach of duty? 130 It is first necessary to identify the relevant risk of harm to Mr Drouet in the act of using the hack squat machine. 131 Mr Garbett should have reasonably foreseen that there must always be a risk of injury to anyone using gym equipment, including the hack squat machine. He therefore had a duty to ensure that gym members did not suffer any injury from use of that equipment. This duty required that he instruct members as to the proper use of that equipment. 132 I have previously described the hack squat machine. It has been in the gym since 1994. It is cleaned on a regular basis. Mr Garbett used it on a regular basis from 1994 up to the accident. To that end, he checked it for its satisfactory functioning. It has not previously been involved in another accident. (Page 28)
133 Mr Garbett gave instruction to Mr Drouet as to the use of the machine. Mr Drouet said that over 13 or so years, [he had used the machine] … in the region of hundreds, if not even, you know, thousands of times, because it's one of those machines that was used frequently. 134 It is reasonable to suggest that Mr Garbett could have anticipated that Mr Drouet and other users of the machine would use it as instructed by him and on this basis, there was no foreseeable risk of harm to Mr Drouet and others in using the machine as instructed, just as he and others had successfully done on many previous occasions since 1994. 135 The risk of harm in these circumstances was far-fetched or fanciful. In the event of some misfortune occurring during the performance of exercise on the machine, it is only necessary to move the handles back into the locking position in which event, the magnitude of the risk and the probability of harm were both very nominal. 136 Section 5B of the CLA provides that Mr Garbett will not be liable for harm caused by his assumed fault in failing to take precautions against a risk of harm unless all three stated factors therein are met and a determination of whether the third of those factors is met, namely whether in the circumstances, a reasonable person in the position of Mr Garbett would have taken precautions against the risk of harm, requires an examination of the matters identified in s 5B(2). 137 Pursuant to s 5B(1)(a), it could reasonably have been expected that Mr Drouet would undertake his exercise with his feet properly in position on the plate as instructed and as previously performed by him. There was no foreseeable risk of harm if he did so. It was not foreseeable that Mr Drouet would commence his exercise without his feet in a proper fixed and comfortable position on the plate and it was not foreseeable that he would walk at all or walk further forward than was reasonably necessary or indeed, over the edge of the plate. It was not foreseeable that Mr Drouet's feet would slide out from underneath him in that circumstance, absent any greasy, oily or other contaminant, of which there is no evidence. Moisture or water is not sufficient to cause slipping. 138 Pursuant to s 5B(1)(b), the risk was insignificant given the long period of successful use of the machine by the many other users of it, including Mr Drouet and because, in the event of Mr Drouet experiencing some misfortune during the course of his proper use of the machine, he simply needed to return the handles to the locking position. (Page 29)
139 Further under s 5B(1)(c), Mr Garbett had taken the precaution of providing proper and adequate instruction to Mr Drouet for use of the machine and which instruction had been sufficient for the many times that machine had previously been used successfully by Mr Drouet. Mr Drouet did not fall and suffer injury by reason of his feet sliding out from underneath him. 140 In this situation, it is not necessary to consider s 5B(2) because none of the requirements of s 5B(1) have been met. Mr Garbett took precautions against the risk of harm. 141 However, as to the matters listed in s 5B(2): (a) Mr Drouet was not permitted to simply join the gym as a member and then use the machine. He was first required to become familiar with other equipment in the gym and to have undertaken other gym work before he could use the machine, and even then, use of the machine was permitted only after instruction as to the correct use of the machine was given, and which instruction Mr Drouet acknowledged having received. Further, the machine was checked by Mr Garbett on a regular basis. He used it himself as part of his own gym work and he had a cleaner who regularly checked it for cleanliness and who cleaned it. The machine itself did not require servicing. There is, of course, a flip side to proper care being taken by Mr Garbett and that is, that it could be expected that Mr Drouet would also take reasonable care for his own safety. (b) It has to be acknowledged that harm resulting from the incorrect use of gym equipment, including the use of heavy weights, could range from minor to major in terms of seriousness. However, a user of the machine with his/her body taking the strain of the weights, correctly placing his/her feet in a proper position and with the feet remaining in a proper and fixed position to perform the required exercise should ordinarily be able to return the handles to the locking position without suffering serious harm. (c) The burden of taking precautions to avoid the risk of harm is set out in (a) above. Mr Garbett satisfied that burden. (Page 30)
(d) The social utility of gym work is to provide bodily fitness to gym users and right thinking people would encourage members of the community to engage in such healthy activity. 142 Section 5(4) of the OLA does not restrict the generality of s 5(1) thereof, but, it is to be separately considered from s 5B of the CLA. I have already referred to most matters listed in s 5(4) of the OLA. However, under s 5(4)(f) and (g) clearly, Mr Drouet would have the ability to appreciate the danger of incorrectly using much of the machinery within the gym, including the hack squat machine and the burden upon Mr Garbett of eliminating that danger in order to protect Mr Drouet from it was nominal and was met by Mr Garbett as outlined above. That Mr Garbett met that burden is demonstrated not only by Mr Drouet's successful use of the machine on many occasions since he joined the gym somewhere between 1991 and 1994, but also the fact that there have not been any other mishaps in the use of the machine since 1994 when it was purchased by Mr Garbett. 143 Whether there was a breach of the duty of care must be assessed prospectively and not retrospectively. Prospectively, all that was reasonably expected or required was that Mr Garbett should properly instruct Mr Drouet as to the proper use of the machine, to check it and to clean it. It is not alleged in any way that the detail of that instruction was inadequate or improper. As noted, Mr Drouet had successfully used the machine on many occasions. So too, had other gym users. Mr Garbett checked it by using it himself and he had it cleaned on a regular basis. 144 Mr Drouet was well able to appreciate being exposed to danger should he not use the machine in accordance with instructions and his previous successful use of the machine. He could get his feet into a satisfactory position, take the weight of the padded cross member and weights on his shoulders, then unlock the handles by moving them forwards. He could then begin his squats under load. His feet should then not move at all during the period of exercise. He should have known, that, moving his feet whilst exercising was impermissible. 145 In this regard, it is to be remembered that with ordinary and proper use of the machine, the user's feet are kept in a stationary position whilst exercising. I have already found that Mr Drouet's feet did not slip on the plate; rather he walked off it. 146 To now allege that there should have been a lip on the leading edge of the plate and a more resistive surface on the plate to prevent a user (Page 31)
from slipping off it, is, in the circumstances, to look at the accident retrospectively, not prospectively. Given the facts of instructions to users, that Mr Garbett regularly checked and used the machine himself and that he had a system for the cleaning of it, all leading to successful use of the machine by gym users, including Mr Drouet, from 1994 when the machine was purchased, the need for a lip and a more resistive plate surface cannot be successfully argued. Mr Garbett explained how users trip on lips and how there was an aluminium check plate on the steel base plate in any event. 147 Further, to suggest that the machine needed a safety device to prevent the padded cross member sliding under weight down to the bottom in the event of a user slipping is also to view the matter retrospectively, for the same reasons outlined above. The machine is designed for use by people of all heights. It would therefore be impractical to provide the suggested safety device because it would prevent short people from using it. 148 Mr Murray only had to lift the padded cross member 'half a foot' above Mr Drouet's shoulders in order to lock it into the bottom lug. Therefore it would seem that any user of any height might need to return the handles to the lock position so as to engage a lug and thereby lock off the padded cross member in a controlled manner by reason of some emergency should be able to do so if they were using the machine correctly with stationary feet. There is therefore no need for the suggested locking mechanism. It was to be expected that users would use the machine in a proper way. 149 In all the circumstances, there was no breach of the duty of care. However, in case I am wrong on this, I will proceed further.
Causation 150 In Smith's case, Buss JA followed the High Court in Adeels and said that: The question of causation in cases where an entrant or lessee claims damages in negligence for personal injury against an occupier or a lessor of residential premises is governed by the CLA [91]. 151 On this basis, the issue of causation in both aspects of the present claim, being failure to provide a safe system of use of the machine and the OLA, falls to be determined pursuant to the CLA. Section 5C of the CLA provides: (Page 32)
5C(1) A determination that the fault of a person (the 'tortfeasor') caused particular harm comprises the following elements - (2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) - (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault - (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor. 152 Section 5D of the CLA provides for the onus of proof of follows: 5D In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. 153 In Smith's case, Buss JA [92] – [94] quoted from Adeels [45] deciding that causation is no longer to be determined as provided in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 514 (Mason CJ). Rather, by s 5C(1), causation 'is determined by the "but for" test: but for the negligent act or omission, would the harm have occurred?' (Page 33)
154 Accepting a duty of care and, for the sake of the argument, assuming a breach of that duty, then the question is, would Mr Drouet have suffered the harm, but for the fault of Mr Garbett as particularised? I am not satisfied on the balance of probabilities that there was any fault on the part of Mr Garbett which was a necessary condition of the occurrence of the harm suffered by Mr Drouet. 155 Mr Drouet has not proved any of the matters alleged by him in his particulars of negligence. It is therefore not necessary to consider s 5C(1)(b). 156 Nevertheless, in terms of s 5B(1)(c) a reasonable person in Mr Garbett's position need not take the precautions of providing the lip, the more resistive plate surface and the suggested locking device in circumstances where the machine has otherwise been successfully used since 1994. 157 Mr Drouet's counsel has referred to Neindorf v Junkovic (2005) 80 ALJR 341 [93] where Hayne J noted that the critical issue of what a reasonable person in the position of the occupier would have done to avoid the foreseeable risk of harm involves an assessment of what would have been reasonable and practicable for the occupier to do. Hayne J said: This inquiry about what would have been reasonable and practicable is not to be undertaken in hindsight (Vairy v Wyong Shire Council (2005) 80 ALJR 1). Nor is it to be confined to what could have been done to eliminate, reduce or warn against the danger. Asking what could have been done will reveal what was practicable. It is necessary to ask also: would it have been reasonable for the occupier to take those measures? 158 Neindorf was referred to by McLure P in Wensink [24]. She observed that failure to eliminate a risk that is reasonably foreseeable and reasonably preventable does not establish breach. 159 As noted, for the reasons advanced by Mr Garbett in light of the long period of time in which the machine had been used by members of the gym, including Mr Drouet, without incident, it was unnecessary for any precautions as suggested in the particulars to have been taken. It would not have been reasonable to have required him to take the suggested precautions. Even if the risk was reasonably foreseeable and reasonably preventable by the suggested precautions being utilised, the facts of this case are such that the failure to eliminate the risk does not establish any breach. (Page 34)
Dangerous recreational activity 160 Section 5H(1) and (2) provide as follows: 5H. (1) A person (the defendant) is not liable for harm caused by the defendant’s fault suffered by another person (the plaintiff) while the plaintiff engaged in a dangerous recreational activity if the harm is the result of the occurrence of something that is an obvious risk of that activity. (2) This section applies whether or not the plaintiff was aware of the risk. 161 By s 5E, a 'dangerous recreational activity means a recreational activity that involves a significant risk of harm'. Recreational activity includes sport. 162 It has been pleaded on behalf of Mr Garbett that weight lifting is a dangerous recreational activity and that the harm pleaded resulted from an obvious risk of that activity, such that a duty of care is not owed in the circumstances. Section 5H was considered by Stavrianou DCJ in Kerslake v Shire of Northam [2009] WADC 129 in which his Honour said: To be a dangerous recreational activity, it must involve a significant risk of harm (s 5E of the CLA). The first issue is whether the activity of motorcycle riding did involve such a risk. In Fallas v Mourlas (2006) 65 NSWLR 418, the Court of Appeal considered a claim by a person who was accidentally shot on a hunting trip. The defendant sought, at trial, to rely upon the New South Wales equivalent of s 5H of the CLA. The court was required to determine whether the activity was 'dangerous'. The following principles were outlined by Ipp JA: 1. The test as to whether a recreational activity is 'dangerous' is objective. 2. The word 'significant', in the expression 'significant risk of physical harm', lays down a standard lying somewhere between a trivial risk and a risk likely to materialise. 3. A significant risk that converts a recreational activity into a dangerous recreational activity may be an entirely different risk from the risk (which may be obvious or not) that materialises. Thus, s 5L may be held to apply where the significant risk (Page 35)
(converting a recreational activity into a dangerous one) differs from the obvious risk that materialises. 4. The question of whether a particular activity may be dangerous should be determined by reference to the particular activities engaged in by the plaintiff at the relevant time and to the actual circumstances giving rise to the harm. This could require segmenting the particular activities the plaintiff was engaged in [148] – [150]. 163 In all the circumstances of this case, Mr Drouet was exercising on the hack squat machine in the gym after receiving adequate and proper instruction. There is no evidence that the floor of the gym or the plate of the machine or Mr Drouet's shoes were contaminated by oil, grease or some other contaminant. Even if they were contaminated by water, then, the coefficient of friction was increased by reason thereof, rather than decreased. Used properly, the machine was perfectly safe. It had been in use since 1994 and Mr Drouet had been using it himself since that time. The recreational activity as such is not dangerous if undertaken properly. The proper use of the machine did not involve a significant risk of harm. 164 The circumstance giving rise to the harm suffered by Mr Drouet was that he walked along the plate when he should have kept his feet in a stationary position during the performance of his exercise. It only became dangerous by reason of the actions of Mr Drouet and it must have been obvious to him that such was a risk. 165 In all of the circumstances, I am not satisfied that the proper use of the machine was a dangerous recreational activity as such.
Risk warning 166 Section 5I(1), (4) and (7) provide as follows: 5I. (1) Subject to this section, 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. (Page 36)
167 Risk warnings were dealt with under the New South Wales legislation in Vreman and Morris v Albury City Council [2011] NSWSC 39 [107] in which Harrison JA said: In the circumstances at least the following questions need to be answered: 1. What was the risk associated with the recreational activity …? 2. Was the risk warning given by the Council specific to the particular risk encountered by the plaintiffs, or was it a general warning? 3. Did the Council give a warning in relation to the recreational activity of riding bikes at the West Albury skate park that was reasonably likely to result in people being warned of the risk before engaging in the recreational activity? 4. If the risk warning given by the Council was not specific to the particular risk encountered by the plaintiffs, but was a general warning, did it warn of risks that included the general nature of the particular risk concerned? 5. Did the Council owe a duty to the plaintiffs in the circumstances? 168 Counsel for Mr Garbett relies on the general medical/physical appraisal which was signed by Mr Drouet and which, relevantly, reads: I understand that all safety precautions will be observed, but I agree to accept any responsibility for injuries which may be sustained during my course. 169 On the evidence, a risk warning was not given to Mr Drouet. Rather, he was simply instructed as to the proper use of the machine.
Obvious risk 170 Section 5F of the CLA provides for an obvious risk as follows: 5F. (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (Page 37)
(2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 171 Section 5N of the CLA provides: 5N. (1) In determining liability for damages for harm caused by the fault of a person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purpose of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 172 Section 5O of the CLA provides, relevantly, as follows: 5O. (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if - (a) the plaintiff has requested advice or information about the risk from the defendant; … 173 A risk can be obvious even though the risk may have a low probability of occurring – s 5F(3). 174 In Dodge v Snell [2011] TASSC 19, Wood J provided a useful analysis of how one may decide if the risk is obvious: Before the statutory presumption may apply, the risk must qualify as an 'obvious risk'. In deciding whether in a particular case the risk qualifies as an 'obvious risk', the starting point is a statement of the risk that eventuated in that case. The risk that caused the injury must be identified and defined with precision: Careyat [91],CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 [172] – [175]. (Page 38) |