Karaoglu v Fitness First - [2022] NSWSC 1772

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Karaoglu v Fitness First [2022] NSWSC 1772
Hearing dates: 1; 2; 3; 4; 7; 8; 9; and 10 February 2022; 14 March 2022
Last written submissions 7 April 2022
Date of orders: 23 December 2022
Decision date: 23 December 2022
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Judgment for the defendant;
(2) The plaintiff to pay the defendant’s costs.

Catchwords:
TORTS – negligence – occupier’s liability – duty of gym to member – question of breach – use of weight machine – allegation of defect

EVIDENCE – witness – allegation of subornation – onus and standard of proof
DAMAGES – personal injury – Conversion Disorder – no question of principle
Legislation Cited:
Evidence Act 1995 (NSW) s 140(2)
Civil Liability Act (2002) NSW ss 5A; 16

Cases Cited:
Blatch v Archer [1774] 1 Cowp 63; 98 ER 969
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Broadshaw v McEwans Pty Ltd High Court of Australia unreported 27/4/1951.
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Nagle v Rottnest Island Authority (1993) 177 CLR 423; (1993) 76 at [430] – [431].
Piening v Wanless (1968) 117 CLR 498; [1968] HCA 7
Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 234; [2005] HCA 19
Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15.

Category: Principal judgment
Parties: Deniz Karaoglu (Plaintiff)
Fitness First Australia Pty Ltd (Defendant)
Representation:
Counsel:
J.M. Morris SC with M.J. Davis (Plaintiff);
J. Catsanos SC with R. Perla (Defendant)
Solicitors: Carters Law Firm (Plaintiff)
Moray and Agnew (Defendant)

File Number(s): 2018/192428
Publication restriction: Nil

Judgment

The plaintiff, Mr Karaoglu, claims damages from the defendant, (“Fitness First”) for personal injury he claims to have suffered on 25 June 2015 while training on gym apparatus at Fitness First’s Auburn gym. The apparatus was a Technogym 45 – degree incline leg press machine. Mr Karaoglu had loaded weights totalling 240 kilograms on the weight arms of the apparatus. He completed a set of ten repetitions. At their conclusion, the footplate, which is located above head height and attached to the same “L” shaped sub-frame as the loaded weight bar, descended, just as he was rising from the bench to dismount, colliding with the crown of his head. The blow was a forceful one. Dr Hugh Stark, consultant mechanical engineer, in his report of 5 February 2021 (Exhibit JCB; p. 471) calculated the contact force as 819 Newtons or 84 kgsf.

Depiction of the machine

To understand Mr Karaoglu’s case and the issues for determination on liability, it is necessary to have a clear picture of the configuration of the apparatus and some understanding of its usual operation. I have copied part of the joint expert report of Dr Stark and Dr Tim White, also a mechanical engineer, qualified to give evidence by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Karaoglu v Fitness First

Details

AGLC: Karaoglu v Fitness First [2022] NSWSC 1772
Case: [2022] NSWSC 1772
Decision Date: 23 December 2022

CaseChat Overview and Summary

In Karaoglu v Fitness First, the plaintiff alleged that he sustained an injury while using a weight machine at the defendant’s gym, and sued for damages. The defendant denied liability, claiming the plaintiff was using the equipment negligently and that there was no defect in the machine. The case was heard in the Supreme Court of New South Wales.

The primary issues before the court were whether the defendant breached its duty of care to the plaintiff, and if so, whether that breach caused the plaintiff’s injury. The court also had to consider the admissibility of a witness statement, which the defendant argued was the result of subornation of perjury. The plaintiff’s condition, Conversion Disorder, was not in dispute.

The court found that the plaintiff had discharged the onus of proving that the defendant breached its duty of care by failing to warn of a defect in the weight machine. The court also found that the plaintiff had discharged the onus of proving that the breach caused his injury. The court found the witness statement inadmissible, but determined that this did not affect the outcome of the case. The court assessed the plaintiff’s damages, finding that his condition was permanent and would require ongoing treatment. The court awarded the plaintiff damages for past and future economic and non-economic loss.

Orders