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[2009] NSWCA 46
respondent. Application for leave to appeal dismissed with costs (para 41).
The Court of Appeal refused Fernwood's application for leave to appeal. The court held that gym exercises like lunges are 'recreational activities' under the Civil Liability Act 2002, but the membership form did not give a specific 'risk warning' so Fernwood could not rely on s 5M to avoid a duty of care. Evidence showed Fernwood's instructor failed to make adequate enquiries about a prior knee dislocation and prescribed lunges that exposed the knee to a foreseeable risk; this breached the operator's duty and caused injury. A broadly drafted, vague release clause in the membership contract was not effective to exclude liability. The trial judgment in favour of Ms Irwin was therefore affirmed and leave to appeal dismissed with costs.
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Belna Pty Limited trading as Fernwood Fitness Centre Parramatta (Fernwood) applied for leave to appeal against a District Court judgment (Toner DCJ) awarding damages to Ms Kylie Irwin for a left knee dislocation suffered while performing a gym exercise prescribed by a Fernwood employee (paras 1-6). The employee had prepared an exercise programme for Ms Irwin which included lunges, an exercise that places weight on the knee joint (para 3). On first attempting a lunge Ms Irwin's left knee gave way and dislocated (para 4).
No linked legislation citations have been extracted yet.
Toner DCJ found that Fernwood had breached its duty of care and had also breached an implied contractual term to exercise reasonable skill and care; damages were assessed at $36,093 (para 2). Fernwood's application for leave to appeal raised three main contentions: (1) the exercise programme was a 'recreational activity' under s 5K of the Civil Liability Act 2002 and, having given an acknowledgement, Fernwood had no duty under s 5M(1); (2) there was no breach of duty by Fernwood; and (3) clause 7 of the membership contract effectively excluded Fernwood from liability (paras 7-8, 17, 38).
The New South Wales Court of Appeal (Ipp JA, McColl JA, Handley AJA) dismissed the application for leave to appeal with costs, affirming the District Court's conclusions (paras 41-44). Ipp JA delivered the principal reasons.
Three legal strands drove the decision.
Statutory framework, s 5K and s 5M Civil Liability Act 2002:
Negligence, duty and breach:
Contract, exclusion clause construction:
These lines of reasoning led to dismissal of the application for leave to appeal and affirmation of the District Court outcome (para 41).
Before this judgment practitioners had to navigate the Civil Liability Act 2002's treatment of recreational activities (s 5K) and the 'risk warning' defence (s 5M), as well as established principles on negligence and contractual exclusion clauses. The Court's decision clarifies three points:
Definitional scope of 'recreational activity' under s 5K: The Court explicitly recognises that gym-based exercise programmes fall within s 5K as either 'sport' (s 5K(a)) or 'pursuits engaged in for enjoyment, relaxation or leisure' (s 5K(b)), even where the participant also seeks fitness or weight loss (paras 13-16). Thus, courts should approach the statutory definitions with ordinary-English meanings combined with the statutory qualifiers.
Limits of s 5M 'risk warning': Not every membership acknowledgment or waiver will constitute a 'risk warning' for s 5M. The warning must identify or be aimed at warning of the risk of the activity in a manner reasonably likely to inform people before engaging (paras 10-11, 17-19). Generic acknowledgments that the club cannot provide medical advice or that the member will not hold the club liable were held insufficient.
Construction of exclusion/release clauses: The decision reiterates the necessity for clarity in drafting exclusion clauses. Vague releases that cannot be sensibly construed will fail (paras 38-41). A clause that looks like a release rather than a clear prospective exclusion, or that uses indeterminate language, will be ineffective.
After this judgment, gym operators and other recreational service providers must be more precise in any contractual risk apportionment and ensure any 'risk warnings' specifically identify material risks and are given in a manner likely to communicate them before participation.
Para 13 (definition of 'sport'): Court: "Perhaps the most apposite ... is 'participation in activities involving physical exertion and skill' ... I would add ... participation ... for purposes of enjoyment, relaxation or leisure." Plain English: The Court says 'sport' means doing physical activities that take effort and skill, and they must be done for enjoyment or leisure, the statutory wording must be read together.
Paras 17-19 (membership acknowledgment and s 5M): Court quotes the acknowledgment and states it "did not warn Ms Irwin about any risk involved in the lunge ... Therefore, it was not a risk warning in terms of s 5M." Plain English: The standard clause in the membership form did not point out the actual risks of the exercise program, so it cannot be used to get out of the duty of care that the law would otherwise require.
Paras 29-33 (expert evidence on patella dislocation): Court notes expert said prior dislocation makes re-injury more likely and lunges without preparatory work expose the knee to a high risk. Plain English: A medical expert told the court that if someone has had a kneecap dislocation before, their knee is more vulnerable; telling them to do lunges without proper build-up and questioning is risky.
Paras 39-40 (construction of clause 7): Court: "At best for Fernwood, the clause provides for a release ... The clause is not merely ambiguous, it is likely unintelligible." Plain English: The clause in the contract is so unclear it cannot reasonably be read as protecting the gym from negligence claims.
The decision is directly engaged where:
In those circumstances, courts will look for: whether reasonable enquiries were made about prior injuries; whether the exercise professional should have refrained from prescribing the exercise or recommended preparatory steps; whether any written warning was specific and communicated in a manner likely to warn; and whether contractual language is sufficiently clear to exclude liability.
This is an ex tempore appeal judgment of the NSW Court of Appeal and will be followed as appellate authority in New South Wales on the points it decides. It confirms that:
Subsequent decisions assessing gym operator liability, membership waivers, or s 5M defences will treat the analysis here as a binding appellate statement on those sub-issues. Practitioners should cite the decision when arguing whether a membership form constitutes a s 5M risk warning or whether a clause is sufficiently clear to exclude negligence.
Exhaustiveness of s 5K: The Court explicitly declined to express an opinion on whether s 5K's definition of 'recreational activity' is exhaustive (para 15). Cases raising edge scenarios, activities that straddle therapeutic, competitive, or purely instrumental fitness aims, may require further clarification.
Content and delivery of a compliant 'risk warning': While the Court held the membership acknowledgment was not a s 5M risk warning (paras 17-19), it did not set out a template or comprehensive guidance as to the necessary content or modes of delivery which will satisfy s 5M(3). Practitioners need further authority on what constitutes a warning "reasonably likely to result in people being warned of the risk" in gym settings.
Interaction between recreational status and standard of care: The Court found the activity recreational but nonetheless held Fernwood liable for negligent failure to investigate and avoid prescribing high-risk exercise (paras 13, 23, 29-37). The precise contours of any modified standard of care for providers of recreational activities, particularly where informed consent or participant choice is asserted, remain a matter for further judicial development.
The boundary between release and exclusion language: The Court noted that the clause looked like a release, which typically has effect after liability arises, and may be different in character to a prospective exclusion (para 39). More detailed appellate guidance on drafting effective prospective exclusions in consumer membership contracts would reduce uncertainty.
In short, Belna v Irwin affirms that recreational status under the Civil Liability Act does not automatically immunise providers where no adequate risk warning is given and where negligent professional conduct in prescribing exercises causes harm, but it leaves open precise standards for acceptable warnings and the outer limits of s 5K's coverage.
CITATION: Belna Pty Limited v Irwin [2009] NSWCA 46
JUDGMENT OF: Ipp JA at 1; McColl JA at 42; Handley AJA at 43
DECISION: The application for leave to appeal is dismissed with costs.
CATCHWORDS: TORTS - negligence - general matters - whether duty of cared owed - Civil Liability Act 2002 ss 5K and 5M - whether dangerous recreational activity - where respondent injured knee while performing lunges - whether risk warning - whether breach of duty - CONTRACTS - general contractual principles - construction and interpretation of contracts - exclusion clauses - whether clause an effective exclusion clause.
PARTIES: Belna Pty Limited trading as Fernwood Fitness Centre Parramatta (Appellant) Kylie Irwin (Respondent)
COUNSEL: L King SC/P Stockley (Appellant) C Stewart (Respondent)
SOLICITORS: Curwoods Lawyers (Appellant) Gerard Malouf & Partners (Respondent)
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40212/08
IPP JA McCOLL JA HANDLEY AJA
Thursday, 26 February 2009 BELNA PTY LIMITED t/as FERNWOOD FITNESS CENTRE PARRAMATTA v Kylie IRWIN Judgment Ex tempore 1 IPP JA: This is an application for leave to appeal and, if granted, an appeal in an action for damages for personal injuries. The action concerns a knee injury that the respondent, Ms Irwin, sustained in a gym operated by the appellant, Fernwood. 2 Toner DCJ held that Fernwood owed Ms Irwin a duty of care that it had breached and thereby caused her knee to be injured. His Honour also held that Ms Irwin and Fernwood had entered into a contract ("the Contract") by which Ms Irwin became a member of the gym. His Honour found that Fernwood had breached an implied term of the Contract that it "would exercise reasonable skill and care in its performance". His Honour awarded Ms Irwin damages of $36,093. Fernwood seeks leave to appeal against his Honour's judgment. 3 After the Contract had been entered into, an employee of Fernwood, Ms Bekiaris, worked out a program of exercises for Ms Irwin to undertake. One of the exercises was "lunging" (an exercise involving leg extensions). Ms Irwin described lunging as follows: "[A lunge is] where you put one leg in front of the other, like one leg forward and the other one back and you slowly lean forward, putting pressure on the leg that's in the front."
Essentially, the exercise involved extending one leg and putting weight on the knee joint of that leg. 4 When Ms Irwin first attempted the lunge with her left leg, it gave way and she fell to the floor. She was taken to hospital and it was found she had dislocated her left knee. 5 Toner DCJ held: "[T]he enquiry made by the defendant to determine the suitability of the exercise regime - particularly the lunges and the plaintiff's capacity to safely perform them was inadequate and a breach of its duty of care to her." 6 On that basis he concluded that Fernwood was liable to Ms Irwin in negligence and for breach of contract. 7 At trial Fernwood contended that, by reason of s 5M(1) of the Civil Liability Act 2002, it did not owe Ms Irwin a duty of care; that is, either under the general law or under the Contract. 8 Toner DCJ held that the exercise program undertaken by Ms Irwin was not a "recreational activity" as defined by s 5K of the Act and, therefore, s 5M(1) did not apply to Ms Irwin's claim. Fernwood challenges this finding in these proceedings. 9 Section 5K of the Civil Liability Act provides: " Definitions In this Division: dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. obvious risk has the same meaning as it has in Division 4. recreational activity includes: (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in, at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure." 10 Section 5M(1) provides: " No duty of care for recreational activity where risk warning
(1) A person ( the defendant ) does not owe a duty of care to another person who engages in a recreational activity ( the plaintiff ) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff." 11 Section 5M(3) provides: "For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning." 12 The basis of Toner DCJ's reasoning that the activities undertaken by Ms Irwin were not "recreational" was that she undertook them to lose weight and get fit. In my view his Honour erred in this regard. 13 As regards sub-paragraph (a) of s 5K, the Oxford English Dictionary contains many definitions of "sport". Perhaps the most apposite in the context of the statute is "participation in activities involving physical exertion and skill". I would add to this definition the element of participation in those activities for purposes of enjoyment, relaxation or leisure, as s 5K provides. The exercise program undertaken by Ms Irwin involved participation in activities of that kind and, according to ordinary English usage, fell within the meaning of "sport". 14 As regards sub-paragraph (b) of s 5K, Ms Irwin stated in the questionnaire that her short-term goal in undertaking the activities was to "enjoy life". She stated that her long-term goal was to lose weight and become fit, but this does not detract from the fact that she undertook the activities for enjoyment, relaxation and leisure. The loss of weight and achievement of physical fitness was only a by-product of the exercises that she intended to perform. By analogy, a person who runs marathons in the heat of summer does so for enjoyment, relaxation and leisure, even though she may hope to lose weight in the process. 15 In examining the three sub-paragraphs of s 5K, I express no opinion as to whether the definition of "recreational activity" in the section is intended to be exhaustive. 16 As regards sub-paragraph (c) of s 5K, Ms Irwin was engaging in her exercises in a place "where people ordinarily engage in sport or in ... [a] pursuit or activity for enjoyment, relaxation or leisure." The reference in the sub-paragraph to "a beach, park or other public open space" does not confine the general meaning of the other words in the sub-paragraph. 17 As regards s 5M(1), the appellant contends that the risk warning given to Ms Irwin was the following acknowledgment contained in the questionnaire she signed: "I understand that Fernwood Fitness Centre is not able to provide me with advice in regard to my medical fitness and that this information is used as a guideline to the limitations to my inability to exercise. I will not hold this club liable in any way for the injuries that may occur while I am on the premises." 18 This acknowledgment by Ms Irwin herself did not warn Ms Irwin about any risk involved in the lunge or any other exercise she undertook. Therefore, it was not a risk warning in terms of s 5M. 19 Accordingly, Fernwood's arguments based on the Civil Liability Act fail. 20 Fernwood argued that his Honour erred in finding breach of duty by it. 21 An important fact in the case was that in September 2000 Ms Irwin slipped and fell in a shopping centre and dislocated or strained her left kneecap. Her knee was put in a brace for some months and she took painkillers. She said that after twelve months her knee was "fine" and she "had no problems with it". 22 In responding to a question in the questionnaire about "joint injuries", Ms Irwin wrote, "Fell over in a shopping centre. Knee." Ms Bekiaris testified that Ms Irwin told her that she had fallen in a shopping centre some three or five years before. Ms Bekiaris asked Ms Irwin whether she had had any problems with her knee since then and Ms Irwin replied that her knee was "fine" and "she had no injury with her knee". 23 This evidence, I would emphasise, was given by Ms Bekiaris herself. In my opinion that evidence together with the testimony of Mr Trembearth (an expert called by Ms Irwin) was sufficient evidence on which his Honour was entitled to base his finding of negligence. I shall explain later why I come to this conclusion. 24 I would also refer to evidence given by Ms Irwin that the judge accepted. This evidence was disputed by Ms Bekiaris. Ms Irwin testified that she told Ms Bekiaris that she wanted to make sure that the exercises did not damage her knee "any more" and she asked Ms Bekiaris whether the exercises she had prescribed were "okay". Ms Irwin said that Ms Bekiaris replied in the affirmative. Ms Irwin was cross-examined about this evidence and, in effect, repeated it. 25 Mr King SC, together with Mr Stockley, appeared for the applicant. He submitted that this evidence by Ms Irwin was suspect, and submitted further that Toner DCJ should not have accepted it. 26 The basis of the submission, as I understood it, was that for this evidence to be true Ms Irwin would have had to believe that there was previous damage to her knee and the damage still existed at the time she so spoke to Ms Bekiaris (whereas she had testified that when she spoke to Ms Bekiaris her knee was "fine"). 27 I do not accept these submissions. The evidence given by Ms Irwin was to the effect that she had had an injury in the past. According to her, she did not say to Ms Bekiaris that she was still experiencing symptoms from the injury, rather, she wanted to make sure that the exercises that were prescribed for her would not damage her knee. 28 In any event, as I have said, although I do not regard his Honour's finding in this regard as capable of being overturned, I do not think that the finding is critical to his Honour's decision that there had been a breach of duty of care. 29 Mr Trembearth testified, "It's well known that with patella dislocation you tend to become more prone to other dislocations." A patella dislocation is displacement of the kneecap. Mr Trembearth said that requiring a person to do a lunge exercise "without much training or preparatory type work" is "really exposing a person's knee joint to a high risk, because it's an unknown quantity". Mr Trembearth explained that the lunge exercise is intended to stress the musculature around the knee joint to make it stronger. He said that if a knee joint was prone to re-injury or aggravation, it should not be stressed. 30 In the course of cross-examination, Mr Trembearth testified that in his opinion, once Ms Irwin had raised the fact that she had had in the past a knee injury that involved a dislocation or subluxation, which is a strain or partial dislocation of the kneecap, a proper history should have been sought of this injury by Ms Bekiaris from Ms Irwin. 31 He explained that there would have been a "possibility, in fact a probability", that there would have been an existing weakness in the area and that was typical of an injury of that kind. He said that it is well-known that, having had a patella dislocation, one tends to become more prone to other dislocations. 32 The structure of the knee joint had been damaged by the underlying injury to the knee. Mr Trembearth said that that damage could have rendered the knee weaker. Therefore, requiring Ms Irwin to do a lunge exercise without much training or preparatory type work exposed her knee joint to a high risk of further injury. 33 In cross-examination it was put to Mr Trembearth that Ms Irwin had not sustained a serious injury, she had merely slipped and fallen in a shopping centre. Mr Trembearth replied: "It was necessary for the gymnasium to ensure that they [sic] had investigated and questioned the person adequately and comprehensively to fully understand the nature of any pre-existing physical or injury type problems." 34 Mr Trembearth said that Ms Bekiaris should have investigated whether there was anything in Ms Irwin's history that could give rise to damage or harm; therefore, Ms Bekiaris should have made closer inquiries of Ms Irwin. Ms Bekiaris's own evidence, as I have mentioned, was to the effect that Ms Irwin told her that she (Ms Irwin) had had a knee injury in the past. 35 Fernwood's summary of argument accepted that on 10 July 2002 a Dr Huynh examined Ms Irwin generally and took from her a history of her left knee dislocation and tendon strain. That is evidence that Ms Irwin knew the nature of the previous injury she suffered. It was open to his Honour to infer that, had Ms Bekiaris asked Ms Irwin what injury she had suffered, she would have informed Ms Bekiaris that she had had a dislocation or strain of her kneecap. 36 The thrust of Mr Trembearth's evidence was, firstly, Ms Bekiaris should have asked Ms Irwin about the nature of her knee injury. Secondly, had she been told that Ms Irwin had strained her kneecap and required rehabilitative treatment, Ms Bekiaris should have known it was too risky to require Ms Irwin to undertake lunges. Thirdly, in these circumstances, Ms Bekiaris should not have prescribed this exercise. 37 It is implicit from Toner DCJ's reasons that he relied on this evidence in finding Fernwood negligent. I am not persuaded that he erred thereby. 38 Finally, Fernwood argued that cl 7 of the Contract excluded it from liability to Ms Irwin. The clause is in the following terms: "It is my expressed interest in signing this agreement, to release Fernwood Fitness Centre, its Directors, Franchises, Officers, Owners, Heirs and assigns from any and all claims for professional or general liability, which may arise as a result of my participation, whether fault may be attributed to myself or its employees. I understand that I am totally responsible for my own personal belongings whilst at the Centre. I also understand that each member or guest shall be liable for any property damage and/or personal injury while at the Centre." 39 There are several problems with the clause. It records an "expressed interest", which is a concept of indeterminate meaning. At best for Fernwood, the clause provides for a release, which ordinarily has effect only after liability has been incurred. A release, ordinarily, is not an exclusion of liability for breaches of duty that may occur in the future. The phrase "professional or general liability" may or may not encompass negligence or breach of contract. The phrase "fault ... attributed to myself or its employees" is difficult to understand. The purpose and meaning of the last sentence of the clause casts further obscurity on its meaning as a whole. 40 Toner DCJ rightly said, "The clause is not merely ambiguous, it is likely unintelligible". His Honour held that cl 7 was so vague as to be meaningless and could not reasonably be construed as exempting Fernwood from liability as it contended. I agree. 41 I would dismiss the application for leave to appeal with costs. 42 McCOLL JA: I agree. 43 HANDLEY AJA: I also agree. 44 IPP JA: That will be the order of the court.
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Belna Pty Limited
Irwin
Application for leave to appeal dismissed with costs (para 41).