Fitness First Australia Pty Ltd v Vittenberg

Fitness First Australia Pty Ltd - Appellant PARTIES: Maria Vittenberg - Respondent

J Sexton SC & G Grant - Appellant COUNSEL: G Melick SC & K Pierce - Respondent

Lee & Lyons - Appellant SOLICITORS: Terrence Stern - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40799/04 DC 8050/02

HANDLEY JA GILES JA BRYSON JA

Friday 4 November 2005 FITNESS FIRST AUSTRALIA PTY LTD v VITTENBERG Judgment 1 HANDLEY JA: I agree with Giles JA. 2 GILES JA: The respondent was in a circuit class at the appellant's gymnasium. She suffered a severe leg injury when using a seated leg curl machine, one of a number of circuit machines. Ashford DCJ held that the appellant had negligently failed to provide adequate instruction and supervision in the use of the machine and was liable to the respondent, and that the respondent had not been contributorily negligent. Her Honour assessed damages of $179,665.69. 3 The appellant appealed as to liability, contributory negligence and some of the elements of the damages.

Liability 4 The appellant did not dispute that it was obliged to take reasonable care for the respondent's safety in her use of the machine. It accepted that there was a foreseeable risk that the respondent might use one of the circuit machines in an inappropriate manner and thereby suffer an injury. It submitted, however, that it had reasonably responded to the risk of injury, according to the so-called Shirt calculus in the well known observations of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. It further submitted that, if it had not, the respondent had not shown that its negligence caused her injury. 5 In my opinion, these submissions should not be accepted. It is sufficient to consider provision of adequate instruction in the use of the machine. 6 The respondent was an experienced gymnasium user. She had used circuit machines at another gymnasium, but had not previously used or even seen a seated leg curl machine. The machines she had used included a leg extension machine, a type of machine which had been part of a gymnasium's equipment for many years. At the time of her injury, February 2001, seated leg curl machines (as distinct from prone leg curl machines) had been relatively recently developed and were not commonly found in a circuit. 7 A leg extension machine and the seated leg curl machine at the appellant's gymnasium were similar in appearance. Both had a seat in front of which was an upper padded roller and a lower padded roller. The word "roller", commonly used in the proceedings, is convenient but not entirely accurate, see below. For the leg extension machine the occupant of the seat put the knees over the upper roller and the ankles under the lower roller, and extended the legs against the resistance of the lower roller brought about by an adjustable weighting system. For the seated leg curl machine the occupant put the knees under the upper roller and the ankles over the lower roller, and curled the legs against the resistance of the lower roller brought about by an adjustable weighting system. 8 The leg extension machine of which there were photographs in evidence had an incompletely rounded upper roller, more padded appropriately for the back of the knees to press against it, mounted on an extension from the front of the seat, such that the occupant could not sit with the knees under it. The seated leg curl machine had an incompletely rounded lower roller, more padded appropriately for the back of the ankles to press against it, and its upper roller was on a mounting to the side. At the trial there was dispute over whether the occupant of a seated leg curl machine could get the knees over the upper roller and the ankles under the lower roller, but photographs of the respondent and another person seated in that manner brought a finding which was not challenged on appeal. 9 The judge found - "49. It is clear from perusal of the photographs of the leg extension machine and the leg curl machine that there is a marked similarity in the set up and appearance of the machines, each of them having a seat area and two rollers, albeit there is some slight difference in that the leg curl machine does not have two round rollers." 10 The respondent had attended the appellant's gymnasium for other activities, but not involving a seated leg curl machine. There came her first attendance at a circuit class. There was no evidence of what occurred when she "signed up" for the class. 11 There were 30 to 35 persons in the class, with one instructor. The instructor asked the class in general whether anybody was suffering from any injury and whether anyone had not done circuit classes before. The respondent did not respond to the inquiry, because she had attended circuit classes before although not at the appellant's gymnasium. The instructor did not explain or demonstrate the use of any of the circuit machines. 12 The class performed warm up activities. It was then split into two groups, half for aerobics and half on the circuit machines. After aerobic exercises, the respondent's group was told to change to the circuit machines. 13 There were about 20 circuit machines, and the members of the class were under pressure to keep moving at a fast rate. About a minute or a little longer was allowed for each machine before the user moved on to the next machine. Within this time, the user had to adjust weights and otherwise get into a position to use the machine, as well as use it. 14 The respondent was not familiar with the first of the circuit machines. She asked the class member behind her how it worked, who showed her, but there was no time for her to use the machine. The respondent was familiar with the next machine and used it. She moved to the third machine, the seated leg curl machine. Although recognising that it was different from the leg extension machine she had used, the respondent thought from her experience at the other gymnasium that it was a leg extension machine. She assumed that the machine was a leg extension machine, and a kind of machine she knew how to use; at one point she said she "saw a new model of leg extension machine". 15 The respondent had to adjust the weights, and did so. She sat with her knees over the upper roller and her ankles under the lower roller. The machine was not moving, and she thought there may be a brake needing releasing. She leaned forward seeking a brake, and as she did so the upper roller moved and threw her forward in the seat and her left leg was caught and twisted. She heard a cracking in her left leg and experienced severe pain; in fact she suffered a fracture of the upper end of the tibia. 16 The mechanism of this movement of the machine was not clearly explained, but it was not suggested that its operation was defective for a seated leg curl machine. It appears that release of a lever on the machine caused the upper roller to move forward and the lower roller to move down to positions appropriate for exercising the targeted muscles, and the movement must have been unwittingly initiated by the respondent. 17 The appellant submitted that it had reasonably responded to the risk of injury because the seated leg curl machine had attached to it a diagram indicating its type and the method of use, so that a user unfamiliar with the machine could readily see that it was a seated leg curl machine and how it should be used. If that were so, it said, no question of adequacy of the instructor's inquiry arose, but as a fall-back it submitted that it reasonably responded to the risk of injury by the instructor's inquiry, which it said was sufficient to cause members of the class unfamiliar with the circuit machines to make that known so that there could be individual explanation and demonstration. 18 The appellant further submitted that, as a matter of causation, when the respondent believed that the third machine was a leg extension machine although recognising that it was different from the machine she had previously used, but did not check the correctness of her belief and used the machine as a leg extension machine, the cause of her injury was her use of an unfamiliar machine without finding out how it should be used; and that a more extensive inquiry by the instructor would not have caused the respondent to ask for individual explanation or demonstration because she believed she was familiar with the circuit machines, and any inadequacy in the inquiry was not causative of her injury.

(a) The sign 19 The seated leg curl machine had what was described as a pylon beside the seat, to the right of the seated user. From the photographs, the pylon was about two metres high. On the upper part of the pylon, facing the user at about eye level as the user approached from the side of the seat, was a sign headed in red letters "SEATED LEG CURL R.O.M.". The dimensions of the sign were not given, but from the photographs it was a little less than 30 cm x 15 cm. On the bottom half of the sign were two representations of a standing man, with muscles at the back of the thighs marked in red and names of muscles, no doubt to indicate the muscles which use of the machine was meant to benefit. On the top half of the sign were two diagrams, each with a sub-diagram giving greater detail of part of the main diagram, and in very small print short narrative statements of sequential steps in using the machine (adjustment, selecting the workload, bringing the legs to the starting position, and selecting an angle and starting to exercise). The diagrams showed the occupant seated with knees below the upper roller and ankles over the lower roller. 20 The respondent gave evidence that she did not see the sign, and that she would have needed her reading glasses (which she was not wearing because she was doing exercises) to read it. She said she gave no attention to a sign because there was nothing "to alarm me that it's not a leg extension machine". 21 The judge did not consider that having the sign in place was adequate to provide instruction in the use of the machine. Her Honour described the sign as "placed at the top of the side pylon of the machine and from the photograph [sic] it does not appear that the sign can be read when a user is seated as it is high up on the right side of the user". She compared it with the instructions for use on a different seated leg curl machine, describing them as "situated at about shoulder height to the right of a seated participant and clearly visible from that position". At another point her Honour said - "48. It seems to me from perusal of the photograph of the leg curl machine at Bond Street that the instructions on its use were placed at a level which it was not possible to read whilst seated and indeed it would seem that any participant would need to stand adjacent to the machine and look upwards to the pylon at the side of the machine in order to observe that there were any instructions at all, let alone appreciate the particular usage." 22 Her Honour said that it was reasonable of the respondent to have assumed that the third machine was a leg extension machine "noting the similarities to which [sic] I have previously mentioned", and relevantly concluded - "It seems to me there was a risk that a class participant would believe the leg curl machine and the leg extension machine to be one and the same without any particular identification readily seen by any user. The identification of the seated leg curl R.O.M. machine at the Bond St premises is placed at a height which would require any user to make a diligent search to be able to see the notification. The photographs of the seated leg curl machines at other gymnasiums which were tendered place the signage at a height next to the user and readily seen by any user. Thus I do not believe the risk of misuse of a machine to be far-fetched or fanciful, and I believe the defendant should have ensured that signage relating to operation of machinery be placed at a level where it is readily seen, identified, and perused by any user. In my view it is not sufficient to simply assume that signage placed at an awkward or inconvenient height is seen by all users." 23 The appellant submitted that the judge erred in her views of the user's difficulty in observing that there was a sign giving instruction in the use of the machine and the seated user's difficulty in seeing the sign. Her Honour's views, and the conclusion to which she came, must be understood together with her earlier observations to the effect that the purpose of a circuit class was to work the class hard and that it was expected that the participants would move from machine to machine at a rapid pace. 24 When engaging a succession of circuit machines under those conditions, the user with a general familiarity with a leg extension machine was particularly exposed to a risk of believing that the seated leg curl machine was a machine of that type, without occasion to look for or refer to a sign. While "diligent search" for the sign is perhaps an over statement of the user's task, it remains that the sign was not so placed as to come to the attention of a user approaching the machine under the pressure of the circuit class in the reasonable but erroneous belief that the machine was a leg extension machine. That user had to address adjustment of the weights, which took attention to a different part of the machine, and when seated would not be looking up and to the right to see the sign. 25 Putting the presence of the sign in the context of a user who had received only the general inquiry from the instructor and who was under the pressure of moving to a circuit machine, adjusting it, using it, and then moving on with a minute or so per machine, and with other class members at the user's heels, I do not think that the judge erred in concluding that having the sign in place was not a reasonable response to the risk of injury.

(b) The instructor's inquiry 26 The evidence included reports from Mr Peter McCue, a well qualified sports consultant, who opined that a circuit instructor who was a registered fitness leader "would and/or should have known of the fitness leader's responsibility to determine whether all participants had previously utilised all the equipment included in the circuit which the instructor was about to lead". Attached to one of his reports was an extract from The Fitness Leaders Handbook, described as a prescribed text for fitness leader registration theory examination since the inception of registration in the early 1980's, which included that when leading a machine circuit fitness leaders should "take into consideration", amongst other matters, "Do all the participants know how to use each piece of equipment?" The judge referred to Mr McCue's reports, saying that it was his opinion that if the respondent "had been adequately screened and supervised prior to the commencement of the class then she should have been instructed in correct use of the seated leg curl machine prior to commencement of class"; she said also that it was his opinion that "the defendant should have ensured that all participants in a class were familiar with all pieces of equipment to be used in any particular class". 27 The judge described the instructor's inquiry as "no more than perhaps a cursory inquiry … ". She did not accept evidence of another class member, called by the appellant, that the instructor had gone into detail relating to familiarity with all the machines or use of the machines on prior occasions, a finding which was not challenged on appeal, and accepted that the respondent - " … believed the inquiry as to whether there had been participation in a circuit class before to be in terms of a general inquiry as to whether participants were familiar with what was expected of them in such a class rather than a specific inquiry as to whether each member of the class was familiar with every machine on that particular circuit." 28 Her Honour took up Mr Cue's opinions to the extent that she said, after her reference to the opinion about familiarity with equipment last noted, "That seems a sensible position". She did not specifically state that the generality of the instructor's inquiry constituted or contributed to failure in reasonable response to the risk of injury, but it appears to have contributed to her finding of failure of adequate instruction. 29 The appellant submitted that it was unreasonable to require more from the instructor than the general inquiry, because about 30 class members and about 20 machines made it impractical to inquire of individual class members about individual machines. It submitted that it was sufficient to make the general inquiry and, if a class member responded that they had not previously participated in circuit classes, then to inquire further of that person and instruct that person in the use of any circuit machines with which the person was not familiar. 30 However, previous participation in circuit classes was not a sound indicator of familiarity with the particular circuit machines at the appellant's gymnasium, especially with any relatively new piece of equipment such as the seated leg curl machine. In my opinion, a reasonable response was at the least to ask whether any member of the class was not familiar with the circuit machines at the appellant's gymnasium. Although there was no evidence of what took place when a person "signed up" for a circuit class at the appellant's gymnasium, that provided an occasion to ask the person about familiarity with the particular circuit machines at the appellant's gymnasium, and if there was unfamiliarity, to provide explanation and demonstration; but if that were not done, then an inquiry by the instructor had to be such that it would be likely to expose any need for explanation and demonstration. If that meant that there was delay while the instructor provided explanation and demonstration to some members of the class, so be it; the organisation of the circuit classes had to allow time for it to occur.

(c) Causation 31 The appellant submitted that, while recognising that the third circuit machine was different from any machine she had previously used or seen, the respondent assumed that it was a leg extension machine and used it as such a machine without confirming the correctness of her assumption; so the cause of her injury was her decision to use a machine with which she was unfamiliar. 32 The judge found that it was reasonable of the respondent to have assumed the machine to have been a leg extension machine, because of the similarity between the machines. The flaw in the appellant's argument is that making such an assumption was part of the risk of injury to which it had to respond, relevantly by taking reasonable steps with a view to users appreciating that the machine was a seated leg curl machine operating in a different manner from a leg extension machine. 33 As to the instructor's inquiry, the appellant submitted that if the instructor had asked whether anybody was not familiar with the circuit machines at the appellant's gymnasium, the respondent would still not have responded because she thought the machine in question was a leg extension machine, with which she was familiar. I do not think that can properly be inferred. The evidence did not provide any detail of the class's location in relation to the circuit machines when the instructor made his inquiry, or what the members of the class could see of the circuit machines. If the class was not sufficiently close to the machines, one would expect the respondent to have said that she did not know; it is unlikely that the class was close enough for the respondent to see the seated leg curl machine as an individual machine which she erroneously recognised as a leg extension machine. The greater probability, in my view, is that proper inquiry by the instructor would have led to a focus on what the circuit machines were and, as part of that, to disclosure or realisation that the seated leg curl machine was not a leg extension machine.

Contributory negligence 34 The judge considered that it was reasonable for the respondent to have assumed that the seated leg curl machine was a leg extension machine, and to have taken the instructor's inquiry to be an inquiry as to whether participants were familiar with what was expected of them in a circuit class rather than a specific inquiry as to familiarity with every machine on the particular circuit. She said - "The plaintiff was an experienced gymnasium user and I believe one who took care for her own safety. It seems to me that having seated herself on the machine on the assumption that this was a leg curl machine, and without experiencing any initial difficulty in placing her legs in that position then I am satisfied this was a reasonable action on her part. When she became aware the machinery was not moving she surmised there was a brake in operation. This is not apparently an unusual circumstance in operation of some of the circuit machinery. In leaning forward to locate such a brake and in a very short space of time the plaintiff was thrown forward by the machinery in such a fashion that her legs became trapped and she thereafter suffered a fracture of her left leg in the manner described by her. I believe the plaintiff was taking care for her own safety in the circumstances described by her with reasonable belief this was a leg extension machine." 35 The appellant's submissions were essentially that the respondent acted unreasonably in using the third machine as a leg extension machine without confirming the correctness of her assumption, repeating its submission as to causation, and that the judge's finding, was based on the respondent's ignoring of the sign. In accordance with what I have earlier written, I do not accept the submission.

Damages 36 The damages included $134,500 for non-economic loss and $15,000 for future loss of earning capacity. The appellant submitted that the former amount was manifestly excessive and that there was no basis for any amount for future loss of earning capacity.

(a) Non-economic loss 37 The appellant accepted the judge's findings, summarised by her Honour - "65. I have set out the medical evidence and opinions in relation to her injuries. Clearly she suffered a significant fracture of her left leg and the medical opinion is to the end that she has likely been rendered more susceptible to development of arthritic changes in her left knee with gradual progression of arthritic changes. 66. The plaintiff gave evidence of restrictions upon her activities as a result of injury. Clearly she suffered significant pain at the time of the injury and as a result of the operative treatment performed. She was unable to weight bear on her left leg for a considerable period of time and is left with a continuing difficulty in respect of continuing pain, worse in cold weather, or on walking long distances or on rough ground. She is unable to participate in the sporting activities she previously enjoyed. Additionally I am satisfied the plaintiff suffered some adjustment disorder with depressed and anxious mood for a period of time which caused her distress although it appears that there has been marked resolution of those symptoms, although with some minor continuing sequelae." 38 The judge said - "67. The plaintiff submits I should assess her claim for non-economic loss as being 38 to 40 per cent of a most extreme case. The defendant says her claim, should she succeed, falls to be assessed in the range of 27 to 28 per cent of a most extreme case. In looking to the evidence before me I assess her non-economic loss at 35 per cent of a most extreme case." 39 The appellant submitted that the findings did not justify 35 per cent of a most extreme case. It did not greatly elaborate. It said that the respondent's injury had largely resolved, and did not interfere with her capacity to earn or "engage in normal activities of daily living, other than strenuous sports", and that the limited consequences of the injury were shown by the modest claim of twelve week past economic loss and a lump sum of $30,000 for future loss of earning capacity and the judge's rejection of the claim for future care. 40 Particularly when regard is had to the evidence underlying the judge's findings, there was greater interference with the respondent's normal activities than this submission recognised. While not irrelevant, the other claims are not a sound measure of the respondent's pain and suffering and loss of amenities of life; medical evidence also referred to some scarring, although that does not seem to have played a part in the assessment. The judge's assessment is not readily reviewed on appeal, involving "questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of commonsense and judgment": Dell v Dalton (1991) 23 NSWLR 528 at 533-4. The judge's findings, understood with regard to the evidence on which they were based, were such that the assessment of 35 per cent of a most extreme case was within the proper exercise of her quasi-discretionary assessment.

(b) Future loss of earning capacity 41 The judge said - "70. In respect of future economic loss the plaintiff claims the sum of $30,000 in respect of general interference with her employability and prospects past and future, as a result of injury. At the time of injury the plaintiff was in the employ of Lumleys and earning a sum of $55,000 per annum including superannuation. The employment terminated in October 2002 because of company downsizing. In March 2003 she found employment in the ACT working for 6 months at $42 per hour on a 40-hour per week basis. She then commenced employment with MBF from October 2003 and remains in that employment on a 12-month contract to October 2004 earning $380 per day as a business analyst. The amount is in excess of the amount she earned with Lumleys. 71. I do not believe her employability in her chosen field is markedly decreased by reason of her injury. She may require some time off in the future to attend physiotherapy or the like, or to attend medical appointments in respect of pain management or in respect of any depressive symptoms she may continue to experience or for future surgery. However I do not believe her future loss of earning capacity as a result of injury is great and on balance of probabilities her loss of capacity to earn income is not substantially reduced by reason of her injury. It is difficult to make a precise calculation. 72. Counsel for the plaintiff submits the sum of $30,000 is reasonable noting a general interference with her employability and future prospects. Looking to the provisions of s 13 Civil Liability Act 2002 and taking into account vicissitudes I assess this head of damages at $15,000." 42 The appellant submitted that the time off work for the future was speculative, and the possible occasions for it were not shown to require time off work rather than attention outside working hours. It said that s 13 of the Civil Liability Act 2002 required more than speculation. 43 The $15,000 was in the nature of a buffer, and in my view in her [72] the judge accepted the basis of "a general interference with her employability and future prospects", not limited to time off work for medical treatment. It was open to her Honour to award damages in the nature of a buffer, see The Nominal Defendant v Lane [2004] NSWCA 51; Briscoe-Hough v AVS Australian Venue Security Services Pty Ltd [2005] NSWCA 51; Hornsby Shire Council v King [2005] NSWCA 67, as what McClellan AJA in Penrith City Council v Parks [2004] NSWCA 201 at [58] called "a modest award of compensation for the chance that a claimant may be disadvantaged in the future because of the injury". 44 The judge did not expressly follow the process in s 13, but implicitly found as most likely future circumstances but for the injury continuance of the respondent's employment of the kind described in her [70] and "assumptions" that the injury impacted on her future earning capacity in a manner which, with adjustment for an unstated percentage for vicissitudes, warranted the modest award of compensation. The $15,000 represented loss of about two and a half months earnings over about twenty-five years of exercise of earning capacity. It can not be regarded as excessive, and the failure to comply in terms with s 13 does not require that an appropriate award of compensation be cast aside.

Orders 45 I propose that the appeal be dismissed with costs. 46 BRYSON JA: I agree with Giles JA. **********

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