Belna Pty Limited v Irwin [2009] NSWCA 46

New South Wales Court of Appeal

CITATION: Belna Pty Limited v Irwin [2009] NSWCA 46

HEARING DATE(S): 26 February 2009

JUDGMENT DATE: 26 February 2009

JUDGMENT OF: Ipp JA at 1; McColl JA at 42; Handley AJA at 43

EX TEMPORE JUDGMENT DATE: 26 February 2009

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.

LEGISLATION CITED: Civil Liability Act 2002

CATEGORY: Principal judgment

PARTIES: Belna Pty Limited trading as Fernwood Fitness Centre Parramatta (Appellant) Kylie Irwin (Respondent)

FILE NUMBER(S): CA 40212/08

COUNSEL: L King SC/P Stockley (Appellant) C Stewart (Respondent)

SOLICITORS: Curwoods Lawyers (Appellant) Gerard Malouf & Partners (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 4157/07

LOWER COURT JUDICIAL OFFICER: Toner DCJ

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."