JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell [2021] NSWCA 137

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell [2021] NSWCA 137 Hearing dates: 29 March 2021 Date of orders: 8 July 2021 Decision date: 08 July 2021 Before: White JA at [1] Simpson AJA at [2] Harrison J at [55] Decision: (1) Appeal dismissed. (2) Appellant to pay the respondent's costs of the appeal. Catchwords: NEGLIGENCE – duty of care – formulation of risk – whether formulation too narrow – formulation focussed purely and precisely on the circumstances in which injury suffered – more generalised formulation would not have affected outcome NEGLIGENCE – breach – whether risk of harm "not insignificant" – common knowledge that lifting heavy weights from floor level can cause back injury – obvious that leaving weights littering floor of gymnasium would force others to put them away – whether reasonable person would have taken precaution of implementing system of inspecting weights area – constant supervision not required – no reason why staff could not be present during limited problematic period to enforce rules about putting weights away after use NEGLIGENCE – causation – whether factual causation established – gymnasium member injured when lifting heavy weight from floor level – not within member's exercise regime – member clearing floor to allow her to exercise – injury due to failure of gymnasium to enforce its own rules Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Bruce v Apex Software Pty Ltd t/as Lark Ellen Aged Care [2018] NSWCA 330 Carnemolla v Arcadia Funds Management Ltd [2020] NSWCA 308 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 Rail Corporation of New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Shaw v Thomas [2010] NSWCA 169 Sibraa v Brown [2012] NSWCA 328 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 Vincent v Woolworths Ltd [2016] NSWCA 40 Category: Principal judgment Parties: JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness (Appellant) Jacquie Powell (Respondent) Representation: Counsel: N J Polin SC (Appellant) D J Hooke SC/J J Ryan (Respondent)