Wood v Young Men's Christian Association of Brisbane

[1995] QCA 477

IN THE COURT OF APPEAL

[1995] QCA 477

SUPREME COURT OF QUEENSLAND

Appeal No. 82 of 1995

Brisbane

[Wood v. YMCA]

BETWEEN:

GEORGE ROBERT WOOD

(Plaintiff) Appellant

AND:

THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF BRISBANE

(Defendant) Respondent

Macrossan C.J.
Davies J.A.

Fryberg J.

Judgment delivered 27/10/1995

Judgment of the Court

APPEAL DISMISSED.

CATCHWORDS:	NEGLIGENCE - duty of care - reasonable foreseeability of damage - standard of care - particular persons and situations - sporting competition - duty to warn of inherent risks of injury.
Counsel:	Mr. T. Macklin for the appellant Mr. R. N. Alldridge for the respondent
Solicitors:	Jonathan C. Whiting for the appellant MacKays for the respondent

Hearing Date: 4 August 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 82 of 1995

Brisbane

Before Macrossan C.J.
Davies J.A.
Fryberg J.

[Wood v. YMCA]

BETWEEN:

GEORGE ROBERT WOOD

(Plaintiff) Appellant

AND:

THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF BRISBANE

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 27th day of October 1995

On 28th November 1991 the appellant tore a muscle, his pectoralis major, while competing in a weight lifting competition conducted by the respondent. As a result he suffered a permanent partial disability to his right upper limb variously assessed at from 10-15% of the function of that limb. He sued the respondent for damages in the District Court, alleging negligence. The learned District Court judge dismissed his claim and did not assess quantum. From that decision he now appeals.

At all material times the respondent conducted a gymnasium in Ann Street, Brisbane. It was, it seems, open to the public. Some time in 1990, the appellant casually went into the gymnasium and decided to become a "member". He paid $150.00, which apparently entitled him to use the gymnasium for 12 months. He was no stranger to gymnasiums or weight lifting. He had "done weights" on and off all his life, and had been a member of the Lota Police Boys' Club for some four or five years. Presumably he continued to "do weights" after joining the respondent's gymnasium.

Some time prior to November 1991 the respondent advertised its intention to hold a weight lifting competition. That competition included the lift known as "bench pressing". This involved the participant lying on a padded bench, taking a weight from a cradle just behind his head, lowering it to his chest and then raising it to the full extent of his arms. It was a lift which the appellant had done many times, but not with weights as heavy as those which would be needed to win the competition. He decided to enter the competition. He trained three times a week for six months prior to it. In training the heaviest weight lifted was 60kgs - much less than his capacity, but it was lifted repetitively.

Both in practices and in competition, an important safety precaution for bench pressing is the assistance of a "spotter". A spotter is a person who stands behind the head of the lifter and who assists the lifter in the event that he gets into trouble with the lift. Judging the right moment to intervene obviously requires skill and experience. If the spotter intervenes prematurely the lift will have been an unnecessary failure; if he intervenes too late, the competitor may be injured. In training, lifters may work in pairs, with each taking a turn to act as spotter for the other. In competition it seems that the competition organiser provides trained persons to act as spotters and nothing else.

In weight lifting as in many sports, one of the risks to which participants are exposed is pulled or torn muscles. In bench pressing in particular, there is a risk of injury to the pectoralis major muscle. As counsel for the appellant conceded before us, injury to that muscle is an inherent risk in bench pressing. The risk of such injury is greater to a participant who is hot and tired and who is lifting a weight close to his capacity. The appellant knew these matters at all material times.

The competition in which the appellant was injured took place on the evening of 28th November 1991, after the appellant had finished work for the day. He worked as a clerk for the Workers' Compensation Board, and his duties did not involve any strenuous activity. The rules of the competition provided that a competitor could nominate the weight which he would attempt to lift. He was then allowed three attempts to lift that weight. If he was successful he could nominate a heavier weight and attempt it. The winner was the competitor who lifted the heaviest weight. The respondent appointed a highly qualified and experienced person, a Mr. Tony Shields, as a spotter for the evening, and at the relevant time he was acting as spotter for the appellant. The appellant successfully lifted 80kg on his first lift. Thereafter he increased the weight by 5kg increments up to and including 100kg and on each occasion successfully lifted the weight on his first attempt. He then attempted to lift 102.5kg. He was twice unsuccessful and on each occasion Mr. Shields assisted him. There was a gap of 15 minutes between the attempts.

On his third and final attempt, the weight fell before Mr. Shields intervened. It was during this attempt that he sustained the injury for which he sued. The evidence did not disclose precisely the mechanism by which the muscle was torn. The trial judge found that the injury occurred during the deviation of the bar to the right. That seems to be inconsistent with its having been an impact injury.

The trial took place on 13th and 14th October 1994 and 3rd and 4th April 1995. At the commencement of the trial the appellant's case was that the respondent was vicariously liable in respect of the failure of its employee Mr. Shields adequately to respond to a call for help from the appellant. The appellant gave evidence-in-chief that Mr. Shields was talking to someone else and not looking at him, though he conceded in cross-examination that he could not see where Mr. Shields was looking. He contended that Mr. Shields could and should have responded more quickly than he did. In particular, he alleged that spotters exercising reasonable care could have lifted the bar quickly enough to prevent his injury. The case proceeded on this basis throughout the first day. The appellant gave his evidence, then, because the appellant's only other witness, Dr. Curtis, was unavailable, two of the respondent's witnesses gave evidence.

On the second day of the hearing, counsel for the appellant foreshadowed an application to amend the plaint to allege that the respondent was further negligent in failing to warn the appellant of the real dangers of a serious injury inherent within competitive weight lifting of the bench pressing type. After several more witnesses for the defence were called the application was made. The learned trial judge allowed the application but also ordered that the trial be adjourned to a date to be fixed. At some stage particulars of the new allegation were given. As recorded by the trial judge they were as follows:

"The Plaintiff alleges that the warning should have been to the effect that:-

(i) it was documented in the literature dealing with sporting injuries that in

weightlifting the benchpress is the discipline that produces tears to the pectoralis
major muscle;

(ii) and, or in the alternative, that it was not uncommon in competitive weightlifting for a person to cause themselves serious injury in a lift;

(iii) and, or in the alternative, that injury to the chest or pectoralis major in the

benchpress is documented in the literature and it is a common injury in
benchpressing, in powerlifting or in working to the maximum;

(iv) and, or in the alternative, that in weightlifting the closer the weight being

lifted is to the person's maximum ability or repetition maximum for a single lift,
the greater the likelihood of a tear occurring;

(v) and, or in the alternative, that it was possible to tear a pectoralis major

muscle doing a maximum lift on a straight lift with no deviation of the bar from
the horizontal;

(vi) and, or in the alternative, that a tear to the pectoralis major muscle could occur during a benchpress very quickly and in a matter of a fraction of a second."

The trial did not resume until 3rd April 1995. The appellant was then recalled. From his further evidence-in-chief it appears that he had remained in Court after initially giving his evidence and had heard evidence given by the defence witnesses thus far. In further evidence-in- chief he was specifically referred to passages in the evidence relating to inherent risks in weight lifting and was asked whether he had been given any warning to the effect of each of those passages. In each case he specifically denied receiving any such warning, and the respondent did not suggest that he did receive one. The various passages put to him are substantially reflected in the particulars set out above. Following the series of questions on whether he was given any warning there occurred the following:

"Now, Mr Wood, if you'd been informed, warned, of the dangers of serious injury occurring in the manner in which I have now outlined to you, can you tell the Court please, what your attitude to the weightlifting competition would have been?-- I would have never entered the competition.

Can you tell the Court, please, why - what are your reasons for saying that?-- The reasons why was, I would never ever attempt anything that I feel is a danger to my health and any risk of danger."

Counsel for the appellant conceded that that was the totality of the evidence on that point.

Under cross-examination the appellant went beyond the particulars. Early in the cross- examination he asserted "... they said to me it was completely safe to lift it because they were supervising the competition." Later in the cross-examination, after the interposition of several witnesses and the luncheon adjournment, he said:

"I entered the competition because I was informed that there wouldn't be any risk because there was safety there; there was spotters there and they'd let you know, you know, if there was any danger involved at all and that it was safe."

Thereupon, the trial judge interrupted the cross-examination and in the absence of the appellant inquired of his counsel whether his case was being run on the basis of that assertion. Counsel informed Her Honour that it was not.

The trial judge found against the appellant on both the alleged grounds of negligence. She found the appellant's evidence unreliable as to the extent of the deviation of the bar and its final position and she accepted Mr. Shields' evidence that he could not have responded faster than he did. She held that she was not satisfied that a quicker response by Mr. Shields would have prevented the injury and additionally, that in any event Mr. Shields exercised reasonable care in the circumstances. She further found that in the circumstances the warnings which the appellant asserted ought to have been given were not ones which a reasonable person in the situation of the respondent would consider to be reasonable to avoid foreseeable risks of injury to the appellant. Consequently, she dismissed the appellant's claim.

On the hearing of the appeal the appellant did not challenge the correctness of her finding in relation to the alleged negligence of Mr. Shields. Counsel submitted however that notwithstanding the fact that the injury which occurred was one inherent in the sport, there was still a duty on the respondent to warn the appellant in the terms pleaded.

It may be accepted that the organiser of a sporting activity is under a duty to use reasonable care to avoid risks of injury of which he or she knows or ought to know to persons who bear to him or her the necessary relationship of proximity. Stated in that generalised form the duty does not depend upon whether the activity takes place at practice or in competition; nor are the persons to whom the duty is owed limited to participants and competitors. Such a generalised statement of duty is however unhelpful in resolving the present appeal; it must be given content. The appellant seeks to do that by asserting the existence of a duty to warn in the terms particularised.

Did the duty to use reasonable care comprehend a duty to warn in those terms? Counsel did not argue that the respondent had a duty to warn the appellant about the risk of injury to the pectoralis major muscle in a bench pressing competition per se. No doubt that was because the appellant knew of the existence of such a risk. We are unable to see anything in the circumstances of the case which would oblige the respondent to provide warnings to the appellant in the more precise terms contended for. The unchallenged findings of the trial judge were that the competition was open only to those who were known by the respondent to be experienced and regular weight trainers at the gymnasium; and that the nature of the competition was such that competitors were lifting at their limit. The respondent was entitled to act on the basis that competitors would be aware of the existence of a risk of injury to the pectoralis major muscle in bench pressing. It was not demonstrated that there was any reason for the respondent to suppose that the more particular warnings contended for would make any difference to persons already aware of that general risk. It might be different in a situation where the organiser of the sporting activity knew or ought to have known that a particular participant was in fact ignorant of an inherent risk of a significant nature involved in the activity, particularly if the risk were not obvious. For example we do not think a scuba diving operator would necessarily escape liability to an inexperienced person merely by demonstrating that the relevant risk was inherent in the activity. However, that is not this case. In our judgment, the respondent was under no duty to warn the appellant in the terms contended for.

That being so, it is unnecessary to decide the issues of causation and volenti. The trial judge found that on the day of the competition the appellant believed that there were no risks in a situation where there was a warm up, a straight lift without deviation of the bar, supervision and spotters. However, she made no finding that the appellant would have acted any differently had the warnings referred to above been given. We have already set out the evidence on the point. It is unsatisfactory: we need say no more than that. The respondent also contended that the trial Judge's finding as to the appellant's belief regarding the risk of injury in competition was unreasonable and contrary to the evidence. Again it is unnecessary to resolve that issue in this appeal.

In our judgment, the appeal should be dismissed.