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LIABILITY FOR NEGLIGENCE IN THE AUSTRALIAN FITNESS
INDUSTRY
BY JOACHIM DIETRICH
The Centre For Law, Governance & Public Policy Faculty of Law Bond University Robina QLD 4229 Ph: (07) 5595 3033 Email: [email protected] Website: www.bond.edu.au/faculties-colleges/faculty-of-law/research/centre-for-law- governance-and-public-policy Professor Patrick Keyzer Executive Director – Centre For Law, Governance & Public Policy Ph: (07) 5595 1049 Email: [email protected] Ms Veronica Jones Centre Manager and Senior Research Assistant – Centre For Law, Governance & Public Policy Ph: (07) 5595 1566 Email: [email protected] Joachim Dietrich asserts the right to be identified as the author of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the Executive Director of the Centre For Law, Governance & Public Policy. Acknowledgement: Jade Pascoe, Senior Research Assistant. Disclaimer: Please note that the feedback and comments provided in this document are not intended to constitute legal advice and should not be relied on as legal advice. Published 2012 Cover design and internal typesetting by Veronica Jones Cover photographs courtesy of Google Images
Table of Contents
Summary of Key Points 1
[1.0] Introduction to the Law of Negligence 1-3
[2.0] Sources of Negligence Law 4
[2.1] Introduction to the Civil Liability Acts 4-6
[2.2] Common Features 7-8
[2.3] Key Differences 8
[3.0] The Essence of Negligence: Breach of Duty or Carelessness 8
[3.1] General Principles 8-12
[4.0] Breach: Standard of Care 12-17
[4.1] Proof of Breach 17-19
[5.0] Causation of Damage 19-22
[6.0] Generally Applicable Defences 22
[6.1] Introduction 22
[6.2] Contributory Negligence 22-25
[6.3] Voluntary Assumption of Risk 25
[6.3.1] Generally 25-27
[6.3.2] Exclusion Clauses and ‘Waivers’ 27
[6.4] ‘Good Samaritans’ 27-30
[7.0] Jurisdictional Specific Defences 30
[7.1] No Duty To Warn of Obvious Risks: NSW, Qld, SA, Tas, WA 30-31
[7.2] Dangerous Recreational Activities: NSW, Qld, Tas, WA 31-36
[7.3] Risk Warning: NSW and WA 36-38
[7.4] Intoxicated Plaintiffs: NSW, Qld 39-40
[8.0] Vicarious Liability 40-42
[9.0] Personal Injury Damages 42-43
1
Summary of Key Points
A provider of fitness services may be liable to compensate clients who are injured in the course of fitness activities if the provider is negligent in the provision of such services. Such negligence can relate, for example, to how the services are provided (including the provision of any advice or information) or to the state of equipment or materials supplied or to the state of the premises in which the services are provided.
A provider is negligent if the provider has failed to comply with the standard of reasonable care that is to be expected of a provider of such services in the specific context. [3.0]
A breach of standard of care occurs where a risk of injury is a reasonably foreseeable consequence of the provider’s conduct or omission, and the provider’s response to such risk does not comply with what a reasonable provider would have done in response (taking into account the probability of the risk eventuating, the likely seriousness of any injury that might result, and the burden of guarding against that risk). [4.0]
A determination of how a reasonable provider would respond to a risk will be based on evidence of industry and professional practice in that context, as well as by reference to any applicable regulatory standards, industry standards, building standards and the like. [4.1]
A negligent fitness service provider is liable to compensate for the loss in money terms of any injury that has been caused by the provider’s negligence. [5.0]; [9.0]
A number of defences may reduce or avoid a provider being held liable, such as where the injured client has failed to take reasonable care for his or her own safety (contributory negligence), or the client’s complaint is merely that the provider failed to warn of obvious risks. The detailed operation of defences varies between states and territories. [6.0]; [7.0]
[1.0] Introduction
The focus of this project is on safety in the fitness industry and, specifically in this
Report, on the legal consequences of a failure to adopt adequate safety practices.
The legal principles set out in this Report apply to the fitness industry, but also apply
generally to recreational activities as a whole.
Obviously, personal injuries can follow from any physical activities that involve some
risks of harm. Even relatively minor failures to maintain reasonable standards in
2
managing risks can lead to injury or even death to participants in fitness activities.
For example, inadequate instructions to new clients or poorly maintained machinery
can lead to heavy weights falling onto the client. Legal consequences potentially may
flow from such incidents.
Some ‘accidents’ are just that: no one is to blame in any way for the mishap and its
consequences. But many ‘accidents’ are the result of a failure on the part of one or
more persons to take adequate care when engaging in conduct that posed a risk to
the safety of others. Where a person suffers personal injury and such injury was, at
least arguably, the result of the careless conduct of another, such a person can seek
recompense for their losses under the law of torts and, specifically, the tort of
negligence. Careless conduct can consist of either positive acts or omissions, an
omission being a failure to act when reasonable care dictates such action (for
example, a failure to warn). Other torts, such as the tort of battery (intentional
physical contact) that impose liability on persons for their intentional wrongdoing,
may also be available to injured parties in very limited circumstances, but they are
rarely applicable or invoked in this context and will be ignored here.
In order for an injured person, such as a client of a fitness service provider,1 to
successfully claim in the tort of negligence against another person, such as the
fitness service provider (the ‘defendant’), for compensation for the harm or loss
suffered, such a person (the ‘plaintiff’) must prove the following elements:
(i) a duty of care owed by the defendant to the plaintiff;
(ii) breach of that duty of care, in that the conduct of the defendant was
inconsistent with what a ‘reasonable person’ ‘would do by way of
response to the foreseeable risk’; … and
(iii) injury ‘which was caused by the defendant’s carelessness’.2
1 Employees may also be injured by careless conduct of fitness service providers and may sue in negligence or, more likely, be entitled to workers’ compensation. The position of employees will be
discussed in another report. 2 Compare the framework set out by Deane J in Jaensch v Coffey (1984) 155 CLR 549, 585–6. It should
be noted, however, that the various elements and the questions that arise under each are not entirely
distinct. The elements overlap and interact: see Sutherland Shire Council v Heyman (1985) 157 CLR 424,
487 per Brennan J.
3
Once the plaintiff has established these elements, then the defendant may be able to
raise a number of defences that reduce or avoid liability.
The notion of a duty of care in element (i) concerns the relationship between the
plaintiff and defendant and whether such relationship is one that gives rise to a legal
responsibility on the part of the defendant to consider the safety and interests of the
plaintiff when engaging in particular conduct that causes harm. 3 Although this
question can raise considerable difficulties of law in new categories of cases, the
relationships between fitness instructors, fitness centre operators and the like, and
their clients, fall within a number of established duty relationships which the law
recognises as satisfying element (i). ‘Established’ duty relationships that are relevant
include one or more of the following: a contractual or consensual relationship such as
service provider and client; occupier of premises and entrant; and instructor and
student. As was stated by Mildren J in Renehan v Leeuwin Ocean Adventure
Foundation Ltd, ‘in the case of recreational activities, those who teach or instruct
others owe a duty to take reasonable case for their student’s safety’.4 The existence of
a duty of care is not controversial in this context as is demonstrated by cases such as
Belna Pty Ltd v Irwin [2009] NSWCA 46 and Wilson v Nilepac Pty Ltd t/as Vision
Personal Training [2011] NSWCA 63, discussed below.
Therefore, where personal physical injury is at issue, there is no need further to
consider ‘duty of care’. It will not be discussed here, except to note that if a client has
suffered other types of harm, for example, psychiatric injury that is not a consequence
of a physical injury to that client, then duty of care issues would need to be addressed.
Such psychiatric harm is called ‘pure’ mental harm because is arises in the absence of
any physical injury to the plaintiff, for example, where a plaintiff suffers mental harm
from seeing another client of the fitness provider killed on the premises.
3 See generally Donoghue v Stevenson [1932] AC 562; Sullivan v Moody (2001) 207 CLR 562. 4 (2006) 17 NTLR 83; [2006] NTSC 4, [84].
4
[2.0] Sources of Negligence Law
[2.1] Introduction to the Civil Liability Acts
The elements of the tort of negligence set out above are derived from the common
law, that is, the law that has been developed by the courts over many centuries,
through rules and principles established in individual cases. However, the common
law, which is uniform throughout all Australian jurisdictions (the States and the
Territories, and the Commonwealth), has now been significantly changed by State and
Territory legislation, so that much of the law of negligence is now contained in
legislation. This is a result of changes to the law that were driven by a perceived torts
and insurance ‘crisis’ (in the late 1990s to early 2000s) and the governmental
responses to it.5 A committee, the Negligence Review Panel chaired by Justice Ipp, a
justice of the NSW Court of Appeal, recommended numerous and significant changes
to negligence law in its report to the government: the ‘Ipp Report’.6 Many of these
suggested changes (or similar ones) have become law in all jurisdictions, except the
Northern Territory.
The relevant legislation in each jurisdiction is as follows: Civil Law (Wrongs) Act 2002
(ACT); Civil Liability Act 2002 (NSW); Civil Liability Act 2003 (Qld); Civil Liability Act
1936 (SA);7 Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic);8 and Civil Liability Act
2002 (WA). For convenience, these Acts will be referred to generically as the ‘Civil
Liability Acts’, and where specific jurisdictions are referred to, each of these Acts will
be referred to in shorthand form as the CLA (NSW), CLA (Qld) etc. Where laws that
apply uniformly to all jurisdictions are discussed, the CLA (NSW) will be referred to.
The legal position in the Northern Territory will not always be specifically noted, as
the Personal Injuries (Liabilities and Damages) Act 2003 has not introduced many of
5 These events have been documented elsewhere, see, eg, the Honourable J J Spigelman, ‘Negligence
and insurance premiums: Recent changes in Australian law’ (2003) 11 Torts Law Journal 291; the
Honourable Justice P Underwood, ‘Is Ms Donoghue’s snail in mortal peril?’ (2004) 12 Torts Law
Journal 39; and, with a particular focus on NSW, D Villa, Annotated Civil Liability Act 2002 (NSW)
(Lawbook Co, 2nd ed, 2010) ‘Introduction’. 6 Review of the Law of Negligence Final Report, 2 October 2002. The Ipp Report can be accessed at
the following web address: //revofneg.treasury.gov.au. 7 This is a renamed version of the Wrongs Act 1936 (SA), substantially amended by the Law Reform
(Ipp Recommendations) Act 2004 (SA). 8 This was substantially amended in particular by the Wrongs and Other Acts (Law of Negligence) Act
2003 (Vic) and the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (Vic).
5
the extensive changes to the common law contained in the other jurisdictions’ Acts.
Unless otherwise indicated, any general statements made in the course of this
Report thus do not necessarily apply to the Northern Territory where, for the most
part, the common law still applies. Many, but not all, of these common law principles
are, however, consistent with the Civil Liability Acts.
Importantly, the Ipp Report’s plea for uniformity of the proposed law reforms was not
heeded, thereby frustrating the aspiration of developing a ‘consistent national
approach’ ‘to bring the law in all Australian jurisdictions as far as possible into
conformity’.9 The statutory law relating to civil liability for personal injuries has been
described as ‘a hodge-podge’ in which ‘no consistent thread of principle can be
detected’.10
A consequence of this is that fitness operators may be subject to different legal rules
depending on which jurisdiction they are in. In particular, there are very significant
differences between the jurisdictions as to the availability of different defences. This
document notes throughout which rules apply uniformly in all jurisdictions, and which
rules apply only in particular states and territories. Hence, although the law of
negligence comprises some common law rules and principles that still operate across
all jurisdictions, as well as a number of statutory rules that have been uniformly
adopted in the various Civil Liability Acts across all states and territories (except the
Northern Territory), there are also some important differences between the state and
territory laws. This is particularly so in the field of ‘recreational activities’, and fitness
activities generally are included within that definition.
All of the Civil Liability Acts are broad in their potential operation, generally applying
to civil claims for recovery of damages for harm, including personal injury (physical
or mental), damages to property and economic loss. Personal injuries that arise in
the context of fitness activities fall within the scope of the operation of all the Civil
9 The Ipp Report, 26. Recommendation 1 of the Report was that its recommendations be incorporated
‘in a single statute … to be enacted in each jurisdiction’, (p 1). The enactment of the recommended
provisions was aimed at achieving ‘uniformity’ and ‘consistency’, 35. 10 Landon v Ferguson (2005) 64 NSWLR 131, [17] per Ipp JA (Hodgson and Santow JJA agreeing);
New South Wales v Ball (2007) 69 NSWLR 463, [9]-[10] per Ipp JA (McColl JA and Young CJ in Eq
agreeing).
6
Liability Acts (the Civil Liability Acts do not apply to all cases of personal injury,
however, as there some exclusions).11
Although many of the Civil Liability Acts are wide-ranging in their scope, they are not
codes, that is, they are not exhaustive and do not set out all relevant legal rules that
apply; they exist on a substratum of common law, though only the CLA (Tas) s 3A(5),
CLA (Qld) s 7(5) and the CLA (Vic) (in various sections)12 expressly make this point.
The question thus arises, what precisely is the interaction between the common law
and the Acts, and how much of the common law survives?
In Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd, Campbell JA
described the relationship between s 5B of the CLA (NSW), which provides that a
defendant is not negligent unless certain conditions are satisfied, and the common
law, as follows:
Section 5B is not a self-contained statement of the circumstances in which a liability for negligence will arise. Rather, subs (1) sets out three preconditions that must co-exist before a liability in negligence arises, when the type of negligence alleged is failure to take precautions against a risk of harm arising. … Subsection (2) provides a non-exhaustive list of factors the court is required to take into account in deciding whether the third of those preconditions exists. Section 5B presupposes the existence of the law of negligence, and operates against its background.13
Indeed, it is possible to generalise beyond specific sections and say that the Civil
Liability Acts as a whole presuppose the existence of the common law of negligence
and although the statutes are the starting point for any legal question, in interpreting
and applying those statutes we may often also need to look at the pre-existing
common law.14
11 For example, smoking-related injuries are excluded from the operation of the Acts. In relation to
those types of personal injuries to which the Acts do not apply the common law still applies uniformly across all jurisdictions. 12 See, eg, ss 14F, 47, 71, and 82. 13 (2009) 77 NSWLR 360 (CA), [173]. See generally H Luntz and D Hambly et al, Torts: Cases and
Commentary (LexisNexis, 6th ed, 2008), [3.1.1]-[3.1.2]. 14 See also generally B McDonald, ‘Legislative Intervention in the Law of Negligence: The Common
Law, Statutory Interpretation and the Tort Reform in Australia’ (2005) 27 Sydney Law Review 443.
7
[2.2] Common Features of the Acts
The starting point for any consideration of liability in the law of negligence is thus
any relevant statutory provisions under the Civil Liability Acts.15
All of the Civil Liability Acts are broad in their potential operation, generally applying
to civil claims for recovery of damages for harm, including personal injury (physical
or mental), damage to property and economic loss. All of the Acts cover three broad
topics (though the specific content of the laws differ in relation to each):
- liability rules, setting out what the injured party needs to show in order to
successfully claim for damages;
- defences that are available to the defendant to defeat or limit liability;
and
- the principles and limitations that apply to the calculation of personal
injury damages.
The last of these will not be considered.
All the Acts set out general principles governing liability arising from a failure to take
reasonable care, irrespective of whether such claims are brought in tort, contract or
under statute,16 subject to certain general exclusions to the operation of each Act.
To simplify somewhat, the general exclusions to the operation of (the whole or parts
of) each of the Acts, such as17 claims covered by motor vehicle accident legislation,
15 See, eg, the High Court in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 432 [11], ‘there
is serious risk that the inquiries about duty, breach and causation will miscarry’ if attention is not first
given to the relevant provisions. 16 CLA (ACT): see Ch 4, s 41 (‘negligence claims’). CLA (NSW): see s 5A (Part applies to claims for
harm resulting from negligence, regardless of the precise cause of action pleaded to sustain such a
claim). CLA (Qld): see Ch 2, Part 1 (most sections apply to ‘breach of duty of care’, defined to include
claims in contract or under statute, though Div 4 on dangerous recreational activities applies only to
‘negligence’ suggesting that breaches of contractual duties of care are not within the scope of the Div:
see R J Douglas, G R Mullins and S R Grant, The Annotated Civil Liability Act 2003 (Qld),
(LexisNexis, 2nd ed, 2008), 167, [19.5]). CLA (SA): see Part 6 (which is limited to claims in
negligence, defined as a ‘failure to exercise reasonable care and skill, and includes a breach of a
tortious, contractual or statutory duty of care’). CLA (Tas): see s 10 (claims for breach of duty of care); CLA (Vic): see s 44 (negligence claims); CLA (WA): Part 1A purports to apply to all claims for
damages for harm caused by the fault of another (s 5A(1)). See J Dietrich, ‘Duty of Care’ (2005) 13
Torts Law Journal 17, 21, for some of the difficulties in relation to the WA provisions. 17 CLA (Vic) in particular has more wide-ranging exclusions: see s 45. The general sections setting out
the various exclusions from the scope of the other Acts are as follows: CLA (NSW) s 3B; CLA (Qld) s
5; CLA (Tas) s 3B; CLA (WA) s 3A. Compare the very limited exclusions in CLA (SA) ss 4 and 51,
8
are not generally of relevance to the fitness industry.18 However, the exclusion of
claims covered by workers’ compensation legislation may be relevant should an
employee of a fitness operator be injured.19
[2.3] Differences
The most significant differences between the various jurisdictions are in relation to
the defences that may be argued, including relevantly, defences of particular
importance to the fitness industry that are only available in some jurisdictions. Close
attention will need to be paid to the specific laws of each jurisdiction when
considering available defences: see [7.0].
[3.0] The Essence of Negligence: Breach of Duty or Carelessness
[3.1] General Principles
The provisions in the Civil Liability Acts setting out the general principles for
establishing liability in negligence (as opposed to the available defences) do not
appear to differ in any significant ways between jurisdictions, despite minor
differences in wording and headings. Usually the most important question in
establishing liability is whether a defendant has breached a duty of care or, in other
words, been careless. Section 5B of the CLA (NSW) sets out the relevant principles;
importantly, the relevant sections in all other states and the ACT are essentially
identical. The CLA (NSW) also contains s 5C, which has not been replicated, however,
in all other jurisdictions and contains specific principles that will not arise in many
cases. 20
Sections 5B and 5C of the CLA (NSW) state:
and in CLA (ACT), where only workers’ compensation claims are excluded from the chapters on
negligence and personal injury damages (ss 41 and 93). 18 CLA (Qld) s 5, however, does not exclude motor vehicle accidents from the Act’s general operation. 19 See, eg, Workers Compensation Act 1987 (NSW). This Report does not consider workers’
compensation schemes in each jurisdiction that apply to injuries suffered by employees. This will be
considered in a separate Report. 20 See CLA (ACT) ss 43 and 44; CLA 2003 (Qld) ss 9 and 10; CLA (SA) s 32 (there is no equivalent to
s 5C); CLA (Tas) ss 11 and 12; CLA (Vic) ss 48 and 49; CLA (WA) s 5B (no equivalent to s 5C).
There is no equivalent in the Northern Territory.
9
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
Section 5B sets out a number of conditions that need to be met before a defendant
can be found to have been negligent. First, the risk must have been foreseeable to a
reasonable person acting in the same capacity as the defendant, that is, a reasonable
fitness operator (discussed below). So, for example, (1) failing to maintain fitness
equipment, or (2) prescribing strenuous exercise to an unfit client or in the absence
of normal enquiries as to a client’s medical history, might foreseeably lead to injury
or even death to someone (1) using the equipment or (2) undertaking the exercise
regime, respectively.
Secondly, such risk must be ‘not insignificant’. This includes a consideration of the
probability of the injury occurring, but it is not generally a difficult test to meet. Even
very improbable and unlikely events may be ‘not insignificant’ risks.21 For example, in
the medical context, even very small risks (such as 1 in 1000) of negative side-effects
from a particular medical procedure, would be ‘not insignificant’.
The third requirement focuses on whether a reasonable person would have taken
certain precautions or acted differently in light of the foreseeable risks that he or she
confronted. So, to take our earlier examples, a reasonable fitness operator may have
had the fitness equipment regularly checked or serviced, or would have prescribed 21 Under the previous common law, a risk had to be ‘not far-fetched or fanciful’ in order to be
foreseeable: Wyong Shire Council v Shirt (1980) 146 CLR 40. This was a very undemanding test. The
slightly more onerous ‘not insignificant’ test is not likely, however, to change how easily this
requirement of foreseeability is satisfied: see, eg, Shaw v Thomas (2010) Aust Torts Reps 82-065
(NSW CA) Macfarlan JA (Beazley and Tobias JJA agreeing), [44], and Luntz et al, [3.1.7].
10
only moderate exercise or sought more detailed information on the client’s medical
history before prescribing an exercise regime.
In order to determine whether a reasonable fitness operator would have acted
differently, the balancing factors listed in subs (2) need to be considered. Obviously,
factors such as ‘probability’, ‘seriousness of risk’, ‘burden of avoiding risk’ and the
‘social utility’ of conduct, cannot be given a mathematical value. Nonetheless they
need to be weighed up against each other. Some simple examples illustrate the
process and the focus of the concepts.
For example, towards one end of the spectrum, the higher the probability of a risk
occurring, such as where frequent accidents have occurred as a result of particular
conduct, and the more serious any likely injury might be, such as life-threatening
injuries, then the more likely it is that it will be held that a ‘reasonable’ operator
would have, and the defendant in question should have, acted differently. This will
be especially so if the preventative measures were fairly cheap or easy to carry out
(that is, a low burden), for example, doing regular equipment checks and requiring
health questionnaires to be completed. At the other end of the spectrum, the more
difficult, onerous or expensive it is to take certain preventive measures, especially
where the probability of the risk in question is low and any likely injury not that
serious, then the more likely it is that a court will determine that the operator was
not negligent. Finally, ‘social utility’ refers to whether certain risks may be worth
taking because of the value of the activity in question. For example, one way of
preventing drowning and injury in swimming pools is to close them down, but this
would have adverse impacts on society as a whole, in taking away a major avenue
for recreation and fitness.
Two case examples illustrate how these factors are weighed up.
In Belna Pty Ltd v Irwin (‘Belna’),22 the plaintiff, Ms Irwin, attended a Fernwood Gym
owned by Belna Pty Ltd. She suffered a dislocated left-knee after being instructed to
do a ‘lunge’ exercise. In the pre-exercise questionnaire that Ms Irwin had completed,
she had indicated that she had suffered a previous knee injury from a fall about 3-5
22 [2009] NSWCA 46.
11
years previously. Although she had also indicated to her instructor that she had had
no further problems with that knee since the injury, she stated that she wanted to
be sure that the exercises did not damage that knee.23 The NSW Court of Appeal
held that, once a past knee injury had been identified, a reasonable fitness instructor
would have enquired about the nature of the knee injury. Had she done so, the
instructor would have realised that, to someone with a previous dislocation or strain
injury, further injury was not just possible, but ‘in fact a probability’. Such probable
injury could have been easily avoided by making further enquiries and thus not
prescribing the particular exercise.24 In short, the risk of moderate injury was very
high and could easily have been avoided.
In Woods v Multi-Sport Holdings Pty Ltd,25 the plaintiff suffered a serious eye injury
when a small rubber ball hit his eye while playing indoor cricket. The plaintiff argued
that the defendant was negligent in failing to warn of the risk of such injuries or by
failing to provide protective headgear. It was held that there was no breach of duty.
The risk was relatively small: there had been approximately two ‘significant’ eye
injuries per year as a result of playing indoor cricket in Western Australia, from a
population of approximately 12,500 players;26 although there were considerable
risks of many different types of injury, many potential injuries were relatively minor;
and, perhaps critically, there were no practical steps that the defendant could have
taken to avoid the harm, since there was no specialist headgear designed for playing
indoor cricket. As Gleeson CJ summarised the evidence:
The evidence showed, not only that there were no helmets designed for indoor cricket, and that they are not usually worn in playing the sport, but that the rules of the game actually discourage the use of helmets, requiring a player who wants to wear a helmet (for example, because of a special medical condition) to obtain permission to do so.
... One of the reasons why helmets are not part of the ordinary protective equipment used in the sport ... [is because if] eye protection is needed, it is needed just as much by fielders as by batsmen. But the confined space, and the diving, sliding, and frequent collisions between players, were regarded by witnesses involved in administering and playing the sport as reasons why
23 Ibid [21]-[26]. 24 Ibid [36]. 25 (2002) 208 CLR 460. 26 Ibid 465, [4].
12
wearing helmets was not only undesirable but would increase some of the hazards.27
For these reasons, there was no breach of duty in failing to provide such headgear.
Further, there was no need to warn of the risk since it was an obvious one of which
the plaintiff would have been aware in any case. The social utility of the opportunity
for sports participants to engage in risky conduct may also have been an implicit
reason that led the majority to their conclusion.28
It should be noted that the decision was a 3:2 decision of the High Court. The fact
that two judges dissented and reached the contrary conclusion, that there was a
breach of duty and that the defendant ought to have provided helmets to the
participants, illustrates how judgement can differ about the reasonableness or
otherwise of a person’s conduct.
[4.0] Standard of Care: The Reasonable Person
Of critical importance in deciding the question of whether the defendant was
negligent is the standard of care that can be expected of the ‘reasonable’ person in
the defendant’s position.
The concept of a reasonable standard of care sets an objective test, of how the
hypothetical reasonable person would respond to the particular risk. It is not,
however, an abstract question since the focus is on the particular events leading up
to the accident. It takes into account the context and all the relevant circumstances
of the activity that the defendant was engaged in. Hence, the knowledge, expertise
and experience that the ‘ordinary’ fitness operator would ordinarily have is relevant
in determining whether the defendant should have acted differently. This sets the
minimum, objective standard that the defendant must meet.
To take the equipment failure example, if evidence suggests that the reasonable,
‘ordinary’ fitness operator has experience and information about the danger of a
particular piece of equipment failing if it is not regularly checked and maintained,
then reasonableness requires regular (eg monthly) checks. If, however, this risk is not 27 Ibid 469, [24]. 28 Compare, eg, ibid, the comments of Gleeson CJ, 472, [37] and Callinan J, 509, [158].
13
generally known about in relation to that piece of equipment, then it may be
reasonable not to check the equipment as frequently.
Since the objective standard depends on the particular circumstances of the
defendant, it may require more of a particular operator who, for example, owns a
large number of the particular equipment, and who has observed regular failures
and ‘near misses’. In such a case, the specific knowledge that the defendant has may
require that he or she take more precautions than other fitness operators in order
for that defendant’s conduct to be judged reasonable.
Obviously, what is considered to be a response of a reasonable person to a risk
depends on factors such as the nature and type of the fitness activity. For example,
relevant factors include whether the activity occurred in a large centre, in a small
gymnasium, or during an individual instructor-led outdoor recreational class,
whether any supervision, instruction or advice was given, what equipment was used,
the type of clientele, etc.
The place in which the activities occur is particularly important, because one aspect
of the relationships between defendant and plaintiff that the law considers
specifically is that of occupier of premises and entrant to those premises. Most
fitness service providers operate out of premises that they lease or own and of
which they thus have possession and control. Such fitness service operators would fit
into the category of ‘occupier’. The law places a duty of care on occupiers to ensure
that premises are reasonably safe for the purposes for which they are used, as safe
as reasonable conduct can make them.29 Occupiers are liable for any defects that
reasonable conduct of the operator or its employees30 could have avoided, such as
uneven or slippery floor surfaces (as a result of cracks or holes, or water or spillage),
29 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7. 30 There is even an argument that an occupier may be liable for the acts of a contractor, such as a
tradesperson. This may be a consequence of a special rule of law that imposes a ‘non-delegable’ duty
on occupiers of premises, but there is real doubt about whether such a rule applies in Australian law to
occupiers. See Luntz et al, [7.5.13] and [17.5.20]. In the (unlikely) event that this principle still applies, then the fact that certain careless conduct was engaged in by a contractor does not excuse the occupier
from liability if such work makes the premises unsafe. So, eg, if a tradesperson repairs lighting on the
premises and carelessly fails to properly screw the light fittings, such that the lights fall on a client, the
occupier may be liable. If such a special rule does not apply, then the occupier would not be liable. If,
however, the repairs were done by an employee of the fitness centre, then the fitness operator would be
vicariously liable.
14
difficult to manage stairs (for example, because of the absence of hand railings), or
damaged furniture or equipment.
Further, inexperience is not taken into account when assessing the standards of a
person professing a particular qualification. This is a general rule that is applicable in
a range of contexts, for example, health professionals31 and learner drivers.32 Even a
newly qualified fitness instructor or personal trainer will be expected to adhere to
the standard of the ‘reasonably competent professional personal trainer’, as was
noted in Wilson v Nilepac Pty Ltd t/as Vision Personal Training.33 In that case, a newly
qualified fitness trainer required a 40 year-old client to undertake a medicine ball
exercise. As a result of that exercise, the client suffered injury to his lumbar spine. It
was held that the exercise, though designed to ‘push the [client] reasonably hard’,34
was unsuitable for a client who did not have sufficient abdominal strength. A
reasonable trainer would have satisfied himself of the client’s strength before
proceeding.35 Indeed, the trainer in question had no knowledge as to whether
particular clients could cope with the added challenge of the exercise but had
‘thought that it would be okay to do’36 because he had seen other trainers use the
exercise. Despite his lack of experience, he was held to have breached his duty of
care – he should have informed himself further before prescribing the exercise – and
his employer was held vicariously liable.
In most contexts, evidence as to particular industry practices in relation to particular
risks and risk-creating activities, may be an indication of what reasonableness
requires, that is, what objectively, a defendant should have done (or not done). Such
evidence alone does not determine the issue, however, and the court merely
considers the industry practices when determining what is reasonable: see the
discussion in the next section. However, provisions of the CLAs in all jurisdictions
31 Wilsher v Essex Area Health Authority [1987] QB 730, but contrast Smit v Brisbane South Regional Health Authority [2002] QSC 312. 32 Imbree v McNeilly (2008) 236 CLR 510. 33 [2011] NSWCA 63, [123]. 34 Ibid [170]. 35 Ibid [125]. 36 Ibid [106].
15
except WA and the Territories37 apply in relation to conduct of a ‘professional’.
Where a professional’s conduct complies with ‘peer professional opinion’, such a
professional’s actions are determined not to be negligent in some cases. The CLA
(NSW) states as follows.
5O Standard of care for professionals
(1) A person practising a profession (‘a professional’) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
It is for the defendant to prove that the defendant’s conduct was widely accepted by
peer professional opinion and to thus prove that the section applies.38 Unhelpfully,
the term ‘professional’ is not defined in the Acts beyond the phrase ‘a person
practising a profession’. There are few cases under the Civil Liability Acts in which the
definition has even been mentioned, let alone discussed in depth. Cases in which the
question of professional standards has arisen have not addressed the definition of
professional because the parties is question were undeniably within that class, that
is, medical doctors39 and solicitors.40
In other statutory contexts, ‘professional’ has been widely interpreted. For example,
in Prestia v Aknar, Santow J concluded that, apart from traditional categories of
professions such as medicine and law,
37 Compare CLA (Qld) ss 20-21; CLA (SA) ss 40-41; CLA (Tas) s 22; CLA (Vic) ss 57-60. Under the
CLA (Qld) and CLA (Vic), the exception contained in s 5O(2) CLA (NSW) in relation to irrational opinion arises where instead where the professional opinion is ‘unreasonable’. There are no equivalent
sections in the CLA (ACT) and CLA (WA) ss 5PA-5PB apply only to health professionals. 38 Dobler v Halverson [2007] NSWCA 335. 39 Eg, Dobler v Halverson [2007] NSWCA 335; King v Western Sydney Local Health Network [2011]
NSWSC 1025. 40 Eg, Weller v Phipps [2010] NSWCA 323.
16
the words ‘professional activity’ may well point to a wider range of those who provide services to the public in an analogous way to traditional professionals. ... One might essay a working definition of these terms. This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.41
There is thus a likelihood that the term ‘professional’ includes within it at least some
recreational and fitness instructors, personal trainers, and the like, depending on
their precise role, training, industry accreditations, and similar relevant factors.
To the extent that the ‘professional’ sections of the CLAs apply to some members of
the fitness and recreation industry, then the determination of the relevant standard
of care required by such persons in their professional conduct is governed by those
sections. As s 5O states, the standard that applies to a ‘professional’ is that of ‘widely
accepted’ ‘peer professional opinion’, and that there is no breach of duty if such
opinion has been followed. In order to qualify as professional opinion, it need not
have been universally accepted, nor even be a majority view, since there may be
more than one, differing professional opinions. In Queensland and Victoria, however,
the opinion must be accepted by a significant number of professionals.
The qualification to the automatic protection of conduct that falls within peer
professional opinion applies where that opinion is ‘irrational’. There appear to be no
cases in which this exception has been successfully established; it has been noted
that ‘cases of this kind are likely to be rare’,42 as the Ipp Report itself acknowledged
(a court will only rarely override prevailing professional opinion). The Ipp Report
gives the example of a case in which a doctor failed to treat with penicillin a patient
who had septic spots on her skin even though this could lead to puerperal fever.43 In
the case a number of distinguished doctors gave evidence that in the circumstances
they also would not have treated the patient with penicillin. Notwithstanding such
evidence, the English Court of Appeal held that the doctor was negligent because he
41 (1996) 40 NSWLR 165, 186. 42 King v Western Sydney Local Health Network [2011] NSWSC 1025, [114]. 43 Hucks v Cole [1993] 4 Med LR 393 as referred to in Bolitho v City and Hackney Health Authority
[1998] AC 232 (para 3.9 of the Ipp Report).
17
had knowingly taken a risk of causing grave danger, even though it could have been
easily and inexpensively avoided.
The ‘peer professional opinion’ standard does not apply in relation to the giving of
advice or warnings as a result of s 5P CLA (NSW). In other words, a professional
opinion that persons should not be warned of a particular risk (for example, from an
exercise where such risk is very small) is not determinative of the issue of
carelessness. A court may reject such an opinion and substitute its own view as to
what reasonableness demands.44
Therefore, if the ‘professional’ standards provisions are applicable, then evidence
that the defendant complied with peer professional opinion can be decisive in
concluding that the defendant was not negligent. Even if these provisions do not
apply, because the defendant in question does not come within the meaning of
professional (and, as a matter of legal definition, only some fitness service providers
arguably will) nonetheless, industry standards will still have a role. As already noted
above, relevant to determining the reasonableness of a particular defendant’s
conduct may be any applicable industry standards and legal regulatory requirements
that apply to that industry or business. This is discussed in the next section.
[4.1] Breach: Proof of Breach
A plaintiff who seeks to establish that the defendant’s acts or omissions were
negligent will need to consider what reasonable conduct required in the specific
circumstances. On the one hand, in proving breach, a plaintiff may seek to show that
the defendant’s conduct departed from accepted industry standards and practices in
relation to such activities. On the other hand, the defendant may seek to deny
liability by proving that the conduct complied with accepted industry practice.45 At a
general level, relevant practices and standards may be found in industry adopted
44 As the High Court did in the context of a medical negligence case in Rogers v Whitaker (1992) 175 CLR 479. Section 5P CLA (NSW) states:
5P Division does not apply to duty to warn of risk
This Division does not apply to liability arising in connection with the giving of (or the failure
to give) a warning, advice or other information in respect of the risk of death of or injury to a
person associated with the provision by a professional of a professional service. 45 See R Balkin and J Davis, Law of Torts (LexisNexis, 4th ed, 2008) 282.
18
codes of conduct; professional bodies’ standards and the like, or they may also be
found in legislation. The relevant standard would be that which applies at the time of
the accident, unless further information or research has already become available to
a reasonable person that indicates that that standard is no longer acceptable as a
sufficient response to the foreseeable risks.46
Specifically in relation to the fitness industry, in all states and the ACT, standards are
set out in the various Fitness Industry Codes of Conduct. Some of these Codes are
mandatory and are thus regulations under the jurisdictions’ relevant Fair Trading
Acts; others are voluntary. They are considered in detail in a later Report.
Where there are relevant laws or regulations that apply, whether a defendant has
breached such laws or regulations is obviously relevant to determining a defendant’s
negligence; but it is not decisive. Importantly, other than in the very limited
circumstances in which a breach of a law or regulation may give rise to a claim under
the relevant statute itself,47 any breach of a law or regulation is not determinative of
the question of negligence. To use a motor vehicle example, in some circumstances,
the reasonable response to a risk might be to speed up and thus exceed the speed
limit, rather than brake. And, of course, the contrary also applies: mere compliance
with laws or regulations does not preclude a finding of negligence. For example,
driving at or below the speed limit may be negligent in certain conditions.48 Having
said that, in many cases, failure to comply with laws or regulations, and the
standards that these set out, will provide a strong basis for a finding of negligence, as
the next case illustrates.
In Loose Fit Pty Ltd v Marshbaum,49 the plaintiff, Ellen Marshbaum, aged 60, was
attending a fitness centre leased and operated by the first defendant, Loose Fit Pty
Ltd, and owned by the second and third defendants (Mr Kocx and Ms Hickie). The
plaintiff fell down a set of stairs leading from the fitness centre to the downstairs
entrance. The stairs were uneven and of differing riser heights and varying depth. 46 See the discussion of the issue of the application of relevant industry standards, and whether compliance with those standards was sufficient for defendants to discharge their reasonable standard of
care, in Baker v Quantum Clothing Group [2011] UKSC 17; 4 All ER 223. 47 This is known as a claim for breach of statutory duty, which only arises in exceptional
circumstances and will not be considered here. 48 See generally, Balkin and Davis, 283-4, fnn 218 and 219 and text thereto. 49 [2011] NSWCA 372.
19
Importantly, the stairs had no handrail installed on the upper flight. Both Loose Fit
and the owners of the building were held liable in negligence for the plaintiff’s
injuries (quantified at over $430,000) and were required to pay 50% of the damages
each. Of particular relevance here is that one of the key reasons why the court found
that the defendants were liable was that the stairs did not comply with requirements
of the Building Code of Australia (BCA) adopted in NSW from 1992.50 Loose Fit had
had carried out extensive renovations to the premises approximately one and half
years prior to leasing the premises, and had raised the issue of handrails in relation
to the lower flight of stairs. These had been installed by the owners prior to the
commencement of the lease.51 It was held that the failure to consider the necessity
of, and thus to install, handrails on the upper flight was careless conduct on the part
of all the defendants.
[5.0] Causation of Damage
The negligent act of the defendant must have caused the loss or harm of which the
plaintiff complains. In most factual circumstances, this will be fairly straightforward,
and will not pose any analytical problems. If a weight machine is carelessly
maintained and the weights fall on a client because of a fault that proper
maintenance would have remedied, then the negligent act of failing to maintain the
machine can be said to have caused the harm. All the consequences that flow from,
or are caused by, that harm must be compensated. Consequences that can be said to
flow from such harm include loss of income from an inability to work for a period,
medical expenses, therapy and rehabilitation costs, and pain and suffering.
The plaintiff bears the onus of proof of causation and therefore needs to tender
sufficient evidence to allow a court to determine that the injury was caused by the
particular negligent act of the defendant (s 5E CLA (NSW)). The principles of
causation are set out in s 5D CLA (NSW) (and equivalent sections in other states). The
most important relevant parts of that Act are as follows (subsections that are of
limited application or relevance have been deleted):
50 Ibid [24], [72]-[74]. 51 Ibid [27]-[29].
20
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ( "factual causation"), and (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( "scope of liability").
.... (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.52
The ‘factual causation’ test in subs(1)(a) requires a consideration of the ‘but for’ test
of causation: Strong v Woolworths Ltd.53 This test poses a hypothetical question:
what would have happened to the plaintiff ‘but for’ the defendant’s negligence or, to
put it another way, what would have happened if the defendant had not been
negligent and had taken appropriate precautions. If the accident would still have
occurred and the plaintiff would still have suffered the same injury, then the
defendant’s negligence has not caused the plaintiff’s injury. For example, if an
appropriate reasonable maintenance check would not have discovered the fault in
the weight machine, then the failure to carry out such an inspection has not caused
the weights to fall on the plaintiff.
Paragraph (1)(b) deals with complex legal issues, such as where a plaintiff suffers an
unusual type of harm or as a result of an unforeseeable course of events, and it is
not proposed to consider those questions here.
52 See also CLA (ACT) s 45; CLA (Qld) s 11; CLA (SA) s 34; CLA (Tas) s 13; CLA (Vic) s 51; CLA
(WA) s 5C. 53 [2012] HCA 5.
21
Subsection (3) may be of particular relevance to the fitness industry where, for
example, the alleged breach of duty consists of a failure to give adequate warnings
or advice in relation to an activity. The causation question thus becomes: if the
instructor had given such warning or advice, how would the plaintiff have reacted
had such warning/advice been given. The relevant test is subjective, that is, how
would the particular plaintiff (as opposed to a reasonable person in the plaintiff’s
position) have responded. For example, if an instructor failed, negligently, to advise
the client to seek medical opinion before undertaking an activity, the causation
question becomes whether that particular client would have followed that advice
and sought the medical opinion if the instructor had given the advice. The same issue
might arise where the alleged breach is a failure to advise that safety equipment be
used, or a failure to provide such safety equipment. If, for example, it could be
shown that the particular plaintiff would have refused to wear such equipment, then
the failure to supply it is not the cause of any injury.
There may be problems in proving causation where there is evidentiary uncertainty
as to why a particular injury occurred, that is, whether the specific act of
carelessness of the defendant is relevant to that injury. Let us take the example of a
client/plaintiff who suffers a serious heart attack while exercising. In such a case it
may be difficult to determine whether the heart attack was caused by carelessness,
if any, of the defendant. Such a plaintiff may allege that the exercise regime was too
vigorous for someone of that age and fitness level. The plaintiff would then need to
show that the heart attack was suffered as a result of undertaking that vigorous
exercise. Obviously, if the heart attack occurred during or shortly after such exercise
then this may be relatively easy, subject to any medical evidence supporting or
contradicting such a causal link. The cause of the heart attack might have been the
vigour of the exercise; but it might also have been an unknown heart defect that
would have triggered a heart attack from any day to day physical activity. In other
words, if it was more likely than not that even mild exercise may have triggered the
heart attack, then the plaintiff will not be able to prove that the negligently
prescribed exercise was a cause of the harm.
22
In such a scenario, the plaintiff may then focus on another aspect of the defendant’s
conduct and allege that such conduct was both negligent and the cause of the harm.
For example, the plaintiff might try to show that proper screening for potential
health problems should have been in place, and that such a reasonable screening
process would have potentially identified such a defect. If reasonable screening
would not have discovered the defect, however, then again, the defendant’s
carelessness in failing to screen would not be considered to be a cause of the injury.
It should be noted that in most cases of injuries in the fitness context, causation
issues will not arise.
[6.0] Generally Applicable Defences
[6.1] Introduction
There are two defences originating at common law that apply generally throughout
Australia, namely those of contributory negligence and voluntary assumption of risk;
there is also one new statutory defence - the ‘good samaritan’ exemption - that also
applies in all jurisdictions. Although the first two of these defences originate in case
law, there have been some modifications made in the Civil Liability Acts. Statutory
modifications of the contributory negligence defence, specifically in the form of
certain presumptions of contributory negligence, do differ significantly from state to
state, but these are not of likely relevance to the recreational field, with the possible
exception of intoxication, which is discussed briefly at 6.2. Some minor changes to
the voluntary assumption of risk defence differ from state and territory, but not in
any significant way.
The defences to be considered from 7.0 onwards are the results of jurisdiction-
specific provisions of the Civil Liability Acts, and hence these defences will only be
available to some defendants, depending on where they operate.
[6.2] Contributory Negligence
A defendant may argue that the plaintiff was contributorily negligent, and that such
negligence contributed to the injuries that the plaintiff suffered. Contributory
negligence is a failure on the part of the plaintiff to take care of his or her own
23
wellbeing, by engaging in conduct that departs from the reasonable, objective
standard of care that one would expect of a person in the plaintiff’s position.54 The
plaintiff’s negligence may either be a contributing factor to the accident, or may
have impacted on the seriousness of the injury suffered. A simple example that
illustrates this is that a driver of a vehicle that is struck by the negligently driven
vehicle of D, may have been contributorily negligent for failing to keep a proper
lookout55 or for failing to wear a seatbelt56 or both.
Contributory negligence is not a complete defence; it only allows for an
apportionment between the plaintiff and defendant of the loss suffered and thus
reduces the damages payable. The apportionment of loss is done by an allocation of
responsibility for an injury as between the defendant and plaintiff according to what
is ‘just and equitable’.57 For example, it may be determined that the plaintiff was
60% responsible for his or her own injury, and will thus have their damages reduced
by 60%. If the plaintiff’s loss was assessed at $1,000,000, such a plaintiff will only get
an award of $400,000. In the very unlikely scenario of extreme carelessness, a
plaintiff’s loss may be reduced by 100% in the ACT, NSW, Queensland and Victoria,58
but not in NT, SA, Tasmania and WA.59
Examples of contributory negligence would be where a client fails to wear safety
gear that is prescribed for particular fitness equipment; or fails to take
recommended rest periods; or fails to take care on a slippery floor. In such cases,
both the plaintiff’s carelessness, as well as the defendant’s carelessness―for
example, not properly maintaining the machinery; prescribing the exercise regime
without adequate supervision; failing to ensure the floor is not slippery,
respectively―will have contributed in causing the plaintiff’s injuries.
54 See, eg, CLA (NSW) s 5R. 55 Sibley v Kais (1967) 118 CLR 424. 56 Eg, CLA (SA) s 49; CLA (ACT) s 97. 57 See, eg, CLA (Vic) s 26. 58 CLA (ACT) s 47; CLA (NSW) s 5S; CLA (Qld) s 24; CLA (Vic) s 63. 59 At common law, contributory negligence cannot as a matter of logic operate as a complete defence.
A determination that the defendant’s negligence was a cause of the plaintiff’s injuries means that it is
not possible to conclude that the plaintiff’s contributory negligence was the sole (100%) cause of his or
her injuries. See Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 24, 29-30.
24
For example, in Renehan v Leeuwin Ocean Adventure Foundation Ltd,60 the plaintiff
participated in training activities on an adventure sail training ship, the Leeuwin. She
suffered injury when she fell off the main mast. In relation to the claim brought in
negligence, it was held that she was 20% contributory negligent in failing to check
that her safety belt was adequately secured by doubling over the tongue of the
belt.61
Importantly, though the defence imposes an objective standard of reasonableness
on the plaintiff, such objective standard takes into account the plaintiff’s age. Hence,
the younger the participant, the lower is the standard of what can reasonably be
expected of such a person.62 This means that the younger the age of a participant in
a fitness or sporting activity, the greater the duty of the defendant to ensure the
participant’s safety. This is because reasonableness will demand a standard that
considers the many more foreseeable risks that may arise, and because the plaintiff
would only be expected to have regard for his or her safety to the quite low standard
that one can expect of someone lacking safety-awareness and maturity.
In the unlikely event that a client was ‘intoxicated’ while using fitness facilities, this
may make it easier to establish a contributory negligence defence. All jurisdictions
except Victoria have introduced (rebuttable) presumptions of contributory
negligence that arise in circumstances where a plaintiff is intoxicated at the time of
an accident.63 Intoxication here includes being under the influence of drugs. In some
jurisdictions, a minimum 25% contributory negligence is mandated where
intoxication contributed to the plaintiff’s harm. For example, under subs 50(3) of the
CLA (NSW), if a plaintiff undertakes fitness classes while intoxicated, and slips and
falls while doing so, then such plaintiff will be presumed to have been contributorily
negligent ‘unless the court is satisfied that the person’s intoxication did not
contribute in any way to the cause of the death, injury or damage.’ Where such
60 (2006) 17 NTLR 83; [2006] NTSC 4. 61 Ibid [105], [110]. 62 See, eg, Kelly v Bega Valley County Council, Unreported, 13 September 1982, Court of Appeal (NSW). 63 CLA (ACT) s 95 (and see also s 96, relating to reliance by plaintiff on an intoxicated defendant);
CLA (NSW) s 50; Personal Injury (Liabilities and Damages) Act 2003 (NT) Part 3; CLA (Qld) Part 4
Div 2; CLA (SA) ss 46, 48 (and see also s 47); CLA (Tas) Part 2; CLA (WA) s 5L. The CLA (Vic)
merely requires courts to consider the issue of a plaintiff’s intoxication when considering a defendant’s
breach of duty (s 14G), and common law principles of contributory negligence apply.
25
presumption applies, damages ‘are to be reduced on account of contributory
negligence by 25% or a greater percentage determined by the court to be
appropriate in the circumstances of the case’ (subs (4)) (emphasis added). The NSW
section does not apply if the intoxication was not self-induced (subs (5)).
[6.3] Voluntary Assumption of Risk
[6.3.1] Generally
The defence of voluntary assumption of risk applies where a plaintiff has by words or
conduct, freely and voluntarily agreed to accept a particular risk. The plaintiff must
have had full knowledge of the risk.64 The defence is a complete defence, that is, it
denies the plaintiff any claim, despite the defendant’s negligence. Other than in
situations where a plaintiff has entered into a contract which excludes liability for
certain risks (see 6.3.2 below), the defence is very difficult to prove and rarely
succeeds, at least under the common law.65
In one rare case in which the defence was successfully argued, Leyden v Caboolture
Shire Council,66 a majority of the Queensland Court of Appeal held that a 15-year-old
boy had willingly accepted the risk in using a BMX track that had not properly been
inspected and maintained by the defendant Council. The plaintiff had been using the
track for years and was aware of the fact that a fellow user had physically modified
one of the jumps. Indeed, the plaintiff had already used the modified jump prior to
his accident. Mackenzie J said that ‘this case is a rare example of one that falls
comfortably within the defence on the unusually clear facts of the case’.67 The claim
pre-dated the application of the CLA (Qld).
There have, however, been changes made under the Civil Liability Acts in all six
states, but not the Territories, that now state that a plaintiff is assumed to be aware
of an ‘obvious risk’. ‘Obvious risk’ is defined as a ‘risk that, in the circumstances,
64 See Imbree v McNeilly (2008) 236 CLR 510, 536 [81], joint judgment of Gummow, Hayne and
Kiefel JJ, Gleeson CJ and Crennan J agreeing. 65 Ibid 535-6, [79]. 66 [2007] QCA 134. 67 Ibid [41].
26
would have been obvious to a reasonable person in the position of that person’.68
The sections thus apply an objective standard: the plaintiff, as a starting assumption,
is deemed to be aware of all the risks of which a reasonable person would have been
aware. The effect of these sections is therefore to reverse the onus of proof, so that
the plaintiff would need to prove that ‘he or she was not actually aware of the risk’69
in order to overcome the effect of the sections.
Whether these sections will have much impact on the likely success of a voluntary
assumption of risk defence remains to be seen, however, since knowledge of a risk is
only the first element of the defence. Even if the plaintiff is deemed to have been
aware of the risk because it is obvious, the further requirement of ‘acceptance’ of
the risk still needs to be met and will not readily be assumed. For example, mere
participation in sporting activities does not necessarily equate with voluntarily
assuming all the risks that are associated with activities, particularly where such risk
is the result of the negligence of the defendant.70 Having said that, however, in
Pollard v Trude, a golfer was held by the majority of the Queensland Court of Appeal
to have voluntarily assumed the risk of being hit by a golf ball. The ball had been
struck without prior warning by a fellow golfer, which the court considered to be an
obvious risk of golf, at least where the plaintiff knew that the defendant was about
to take his shot. Further, the plaintiff had assented to the ball being struck by not
moving away or standing behind a tree. 71
For the fitness industry, a voluntary assumption of risk defence can at least plausibly
be raised where, for example, a client has engaged in particularly risky conduct while
fully aware of the risks associated with that conduct. Further, if the risks associated
with that conduct are obvious, the injury occurring as a result of such an obvious risk,
68 CLA (NSW) s 5F. See also CLA (Qld) s 13; CLA (SA) s 36; CLA (Tas) s 15; CLA (Vic) s 53; CLA
(WA) s 5F. The definition is explored more fully below. 69 CLA (NSW) s 5G(1); CLA (Qld) s 14(1); CLA (SA) s 37(1); CLA (Tas) s 16(1); CLA (Vic) s 54
(1); CLA (WA) s 5N(1); on the onus of proof, C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA
136, [101] per Santow J. 70 See, eg, discussion in Balkin and Davis, 359-60 and Oran Park v Fleissig; Teamfox v Fleissig
[2002] NSWCA 371, voluntary assumption of risk defence failed against the plaintiff injured as a result of an accident during a go-kart race. 71 [2009] 2 Qd R 248; [2008] QCA 421, [40]. Although the plaintiff’s appeal was unanimously
dismissed, with three judges holding that there was no breach of duty of care, only two (Holmes JA and
White AJA) of the three judges would have held that a voluntary assumption of risk defence was made
out in any case, whereas McMurdo P doubted whether a voluntary assumption of risk defence would
have been made out had there been a breach of duty [6]-[7].
27
then the plaintiff will be deemed to have been aware of such risk unless he or she can
prove otherwise. The defendant would still need to prove acceptance of or assent to
that risk.
The concept of ‘obvious risk’ also operates in other contexts discussed below. First, a
plaintiff cannot complain merely on the basis of the defendant’s failure to warn of an
obvious risk, that is, there will be no breach of duty by the defendant for a mere
failure to warn: [7.1]. Secondly, a number of jurisdictions have specific defences
relating to obvious risks that occur in dangerous recreational activities [7.2]; these
provisions have a similar operation and purpose as the general defence of voluntary
assumption of risk, but arise in more limited contexts.
[6.3.2] Exclusion clauses and ‘waivers’
A defendant may argue that the plaintiff cannot sue for the harm caused by the
defendant’s negligence where the plaintiff has assented, in the form of a binding
contract, to a term which excludes or exempts the defendant from liability for the
particular harm caused. The contract terms may thus prevent a claim in tort because
the plaintiff can be said to have contractually accepted the risk; and the terms of the
contract override any liability in the law of torts. Having an appropriately drafted and
validly concluded contract can thus be an important means by which defendants can
protect themselves from liability for their careless conduct. The operation and
interpretation of such exclusion or exemption clauses, or ‘waivers’, raise complex
issues of law, and important practical questions for fitness operators, and the issues
are considered in more detail in Ch 3 (as to which circumstances is it legally possible
to exclude liability) and Ch 4 (as to when a waiver clause will be effective).
[6.4] ‘Good Samaritans’ exception
One defence, albeit of limited application, that may nonetheless be of relevance to
fitness providers, arises in relation to rescuers or ‘good samaritans’; this is the
description given to persons who come to the aid of others in an emergency in the
Civil Liability Acts. Consider the situation where a client, through no carelessness on
28
the part of the fitness operator, has a heart attack while exercising at the fitness
centre. If an employee of the fitness operator attempts to provide first aid, but does
so carelessly, could that employee, or his or her employer, be held liable for the
careless assistance if it increases the injuries or harm which the client has suffered?
There has been a wide-spread community perception 72 that rescuers were
vulnerable to litigation by disaffected rescued parties. In fact, there is very little
evidence of rescuers having been sued by the persons they rescued73 and hence the
need for any protection of rescuers is unclear. Nonetheless, all jurisdictions grant
immunity from liability to persons engaged in acts of assistance to persons in need as
a result of an emergency. A fitness operator placed in such a situation can now rely
on the immunities under the various Civil Liability Acts, though given the lack of any
previous case law, the impact of this immunity is likely to be very limited.
Unfortunately, the provisions are not uniform. Further, the immunities are not
absolute and various limitations on the immunities need to be considered.
Apart from the immunity granted in Queensland, which is limited to persons who are
engaged in acts to ‘enhance public safety’ while acting for a ‘prescribed entity’, as
well as the prescribed entities themselves,74 all other jurisdictions provide immunity
from civil liability to ‘good samaritans’. ‘Good samaritans’ are those who voluntarily
(that is, without expectation of payment) act or omit to act in ‘good faith’75 while
assisting persons in circumstances of emergency. The immunity is lost if the ‘good
samaritan’ acted while intoxicated or under the influence of drugs, though not in
Victoria or Queensland.76
72 Compare the Ipp Report, [7.21]-[7.24], pp 107-108, which notes this community apprehension, but
concluding that ‘there are no compelling arguments for such an exemption’ [7.24]. See also Villa,
above n 5, 1st ed, 276-7. 73 See Luntz et al, [7.7.12]. Outside the context of personal injuries, however, liability was imposed
on a ‘rescuer’ of property (straying sheep) for damage to a vehicle that hit the sheep, in Zadow v
Scanlon (1984) 2 MVR 43 (SA SC) (and compare Cowell v Madden (1991) 15 MVR 114 (Vic AD)). 74 See CLA (Qld) s 26. The protected entities are prescribed by regulation, and essentially are rescue
and emergency services organisations. Medical personnel providing emergency care without fee or reward are protected under s 15 of the Law Reform Act 1995 (Qld). 75 Contrast CLA (ACT) s 5: ‘honestly’. 76 In Qld, one could argue that an intoxicated or drug affected rescuer may be taken to have behaved
recklessly in such circumstances, though being intoxicated and behaving recklessly are not, of course,
the same thing. In some jurisdictions, the term ‘drugs’ is given a limited definition of ‘recreational
drugs’, in others the term is more widely defined.
29
In Tasmania and Victorian, the immunity expressly arises ‘even if the emergency or
accident was caused by an act or omission of the good samaritan’ (CLA (Vic) s 31B(3),
CLA (Tas) s 35B(3)), but not in relation to ‘any act or omission …that occurs before
the assistance, advice or care is provided by the good samaritan’ (CLA (Vic) s 31B(4),
CLA (Tas) s 35B(4)). The CLA (NSW) expressly denies the immunity in such
circumstances: s 58(1). Other jurisdictions do not deal with the point, suggesting that
in such circumstances, the immunity is not lost.
Other than in New South Wales77 and Victoria,78 such acts must be done without
‘recklessness’ in order to be protected.79 Drawing distinctions between negligent
conduct as opposed to reckless conduct, always creates difficulties in the application
of such distinctions to facts. ‘Recklessness’ is not defined in the Acts, but probably
describes a failure to meet the standard of reasonable care that involves serious or
gross disregard for the safety of others, that is, appreciating the risk of serious injury
from particular actions, but nonetheless continuing with such action not caring
whether the risk eventuates.80 Nonetheless, having said that, it seems undesirable
that in New South Wales and Victoria, defendant ‘good samaritans’ are exempt from
liability no matter how grossly negligent their conduct. This could mean that in
Victoria, a seriously intoxicated person who causes an accident, causing minor injury
to another (say, by pushing them into a plate glass window), but who then recklessly
‘assists’ the injured person in a way that causes serious injury, is exempt from any
liability in relation to the further injuries.
Significantly, of relevance to fitness operators, under the CLA (NSW) s 57, and CLA
(WA) s 5AD(3), the defence does not prevent a defendant being vicariously liable for
the acts of the rescuer (vicarious liability is discussed at [8.0]). Hence, if an employee
attempts to rescue a client, and does so carelessly, then the fitness operator may still
be held liable for the consequences, such as an exacerbated injury.
To summarise the various legal positions:
77 CLA (NSW) s 56. 78 CLA (Vic) s 31B. 79 CLA (ACT) s 5; CLA (Qld) s 26; CLA (SA) s 74(2); CLA (WA) s 5AD; 80 See the statement of Hodgson JA in Stephens v Giovenco [2011] NSWCA 53, [86]-[87] in the
context of contributory negligence of a deceased person and whether the deceased’s conduct was
reckless.
30
In ACT, NT, SA, Tasmania, WA, the conduct of the rescuer must not have been
reckless, as must not have been the conduct of the limited class of rescuers
protected in Queensland, whereas in NSW and Victoria, the immunity applies even
to such a reckless rescuer.
In the ACT, NSW, NT, SA, Tasmania and WA the rescuer must not have been
‘intoxicated’ at the time of the rescue; whereas in Victoria, the immunity applies
even to intoxicated rescuers, as does the more limited immunity in Queensland.
[7.0] Jurisdiction-Specific Defences
[7.1] No Duty to Warn of Obvious Risks: NSW, Qld, SA, Tas, WA
All states, except Victoria and the Territories, deny the existence of a duty to warn in
relation to obvious risks: CLA (NSW) s 5H, CLA (Qld) s 15, CLA (SA) s 38, CLA (Tas) s
17, and CLA (WA) s 5O. The meaning of obvious risk is also relevant to the next
defence and is discussed in 2.8.2.
The effect of these provisions is that, where they apply, there is no breach of duty at
all on the part of the defendant. In effect, the provisions deem that a failure to warn
is not unreasonable conduct. However, if a plaintiff pleads that the defendant should
have warned of a particular risk, then the defendant must show that the risk was in
fact ‘obvious’.
Importantly, although a failure to warn of an obvious risk does not give rise to
liability, a plaintiff may nonetheless succeed in his or her action if the plaintiff can
show that other reasonable steps were open to the defendant to discharge a duty of
care, where reasonableness dictates that such steps should have been taken to
alleviate the risk. For example, the plaintiff in Chotiputhsilpa v Waterhouse,81 who
was injured while crossing a multi-lane bridge with which he was unfamiliar,
successfully argued that the defendant should have placed signs providing
information as to the existence of a pedestrian underpass.82 In that case, the
81 [2005] NSWCA 295. 82 See the discussion of that case in Douglas et al, above n 16, 146-7, and of similar examples in
Randwick City Council v Muzic [2006] NSWCA 66 and Angel v Hawkesbury City Council [2008]
NSWCA 130.
31
underpass was not obvious or visible from the point at which the plaintiff had
alighted from a bus. The plaintiff did not plead that the defendant road authority
should have warned him of the risk of crossing a multi-lane bridge. The NSW Court of
Appeal held that the defendant should have erected signs to indicate ‘the presence
and location of the subway’ and that ‘the Court was not concerned with a warning
sign as such’.83
These sections may have impact in relation to recreation and fitness activities that
involve some risk to participants and where the only alleged failing on the part of the
defendant (the instructor, exercise leader, fitness operator etc) is to warn of those
risks. If those risks are obvious to a reasonable person in the plaintiff’s position, then
there will be no carelessness on the defendant’s part for such a failure to warn. For
example, in a case that predates the Civil Liability Acts, Woods v Multi-Sport Holdings
Pty Ltd,84 the majority, Gleeson CJ, Hayne and Callinan JJ, treated the risk of being hit
in the eye and suffering serious injury while playing indoor cricket as ‘obvious’85 and
therefore did not consider that the defendant was in breach of duty for failing to
warn of such risk.
[7.2] Dangerous Recreational Activities: NSW, Qld, Tas, WA
In four states plaintiffs engaged in a ‘dangerous recreational activity’ are disentitled
from bringing action for harm caused by the ‘materialisation’ of an obvious risk of
that activity: CLA (NSW) s 5L, CLA (Qld) s 19, CLA (Tas) s 20, CLA (WA) s 5H.86 Thus the
two concepts that need to be considered are the meaning of ‘dangerous recreational
activity’, and ‘obvious risk’.
‘Recreation’
The definitions of ‘recreational activity’, though not uniform, are very wide with
potentially unforeseen consequences: essentially, any sport or leisure activity
83 [2005] NSWCA 295, [76], [61]. 84 (2002) 208 CLR 460; [2002] HCA 9 85 Ibid eg, 471-2, [34]-[36] per Gleeson CJ and 503-504, [144] per Hayne J. 86 CLA (NSW) s 5M and CLA (WA) s 5I also specifically deal with risk warnings given to
recreational service users, but these are considered below.
32
involving a significant risk of physical harm is included. The definition of recreation in
NSW states:
5K Definitions
In this Division: "dangerous recreational activity" means a recreational activity that involves a significant risk of physical harm. ... "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.
The broad definition of recreation adopted in New South Wales means that even a
holiday comes within the definition of ‘recreational activity’.87 Further, the New
South Wales Court of Appeal has held that terms such as ‘any sport’ (para (a) of the
definition, s 5K CLA (NSW)) be given an essentially objective meaning, that is, if the
activity can be characterised as ‘any sport’, the purpose for which the activity is
carried out will not alter this conclusion. Hence, exercise programs in a gym were
held to be ‘sport’ in Belna,88 even though one purpose for which the plaintiff
undertook the classes was for health and fitness. Although motive or the purpose for
which the activity is undertaken is clearly relevant under para (b) (‘any pursuit or
activity engaged in for enjoyment, relaxation or leisure’) again, so long as one of the
purposes is leisure, other motives such as health and fitness will not alter the
determination that the activity is recreational. 89 At least in relation to (b),
presumably, some sporting and physical activities are not included, because, for
example, the sole or predominant purpose is for health and fitness. Thus, an exercise
and sports regime prescribed by a physiotherapist as part of ongoing treatment and
rehabilitation would presumably not come under para (b). However, under the
broad approach adopted in relation to para (a) in Belna, if such exercises are
87 Insight Vacations Pty Ltd T/As Insight Vacation v Young (2011) 243 CLR 149; [2011] HCA 16,
[19]. 88 Belna Pty Ltd v Irwin [2009] NSWCA 46, [13]. 89 Ibid [14].
33
undertaken as part of an exercise program or fitness class, then they would still be
captured. If, however, the exercises are to be done by the patient at home, then
they would be unlikely to qualify under either para (a) or para (b), and thus would
not be recreational.
The definitions adopted from state to state differ. The New South Wales and
Western Australian definitions appear the widest, as they do not require there to be
any element of physical exertion or risk in leisure pursuits; 90 the Tasmanian
definition is similar in effect, albeit more brief in its definition;91 and s 18 of CLA (Qld)
only has a definition of dangerous recreational activities, meaning ‘an activity
engaged in for enjoyment, relaxation or leisure that involves a significant degree of
risk of physical harm to a person.’ Despite these different definitions, however, we
will assume that the meaning of ‘recreational activities’ in all jurisdictions is the
same, at least when considered as part of a determination of dangerous recreational
activity.92 Definitions of recreational activity are also relevant in other jurisdictions
for purposes other than the dangerous recreation rules.93
‘dangerous recreation’
Most litigation, particularly in NSW, has turned on the meaning of ‘dangerous
recreational activity’ (s 5L), which is defined as one involving a significant risk of
harm (s 5K). The term ‘significant’ has been held to bear on both the likelihood of
that risk eventuating and the potential seriousness of any injury. In other words, the
significant risk or probability of harm must also be one of some significant injury,
such that a ‘significant risk of insignificant injury’ would not qualify.94 Further, a
significant risk means one somewhere between a ‘trivial risk and a risk likely to
materialise’.95 It has been held in applying this definition that diving into water of
90 CLA (NSW) s 5K and CLA (WA) s 5E respectively. 91 CLA (Tas) s 19. 92 Douglas et al, above n 16, 156, agree with this assumption. 93 These definitions do differ from these discussed here and will be discussed in Ch 3. 94 Falvo v Australian Oztag Sports Association (2006) Aust Torts Reps 81-831; [2006] NSWCA 17, [28]-[30] (Ipp JA, Hunt AJA and Adams J agreeing). See also Jaber v Rockdale City Council (2008)
Aust Tort Reps 81-952; [2008] NSWCA 98, [46]-[55] (Tobias JA; Campbell JA and Handley AJA
agreeing). 95 Fallas v Mourlas (2006) 65 NSWLR 418, 422; [2006] NSWCA 32, [18] per Ipp JA; see also Tobias
JA at 432, [90]. See also Jaber v Rockdale City Council (2008) Aust Tort Reps 81-952, 61,709-61,711;
[2008] NSWCA 98, [46]-[55].
34
uncertain depth off a wharf96 is a dangerous recreational activity; so is kangaroo
shooting at night;97 or riding a BMX bike on a skate park;98 but playing ‘Oztag’, a
touch football game99 and calm water cruising100 are not. Similarly, diving off a boat
anchored in a shallow bay into darker coloured water that gave ‘the appearance of
depth’,101 was held not to be dangerous in those circumstances. Importantly, all of
‘the particular circumstances in which the activity was being undertaken’ are
relevant in determining the dangerousness of it, as was noted by Studdert J in Smith
v Perese. Studdert J stated in relation to spear fishing that one cannot decide that it
is ‘always’ or ‘never’ a dangerous recreational activity. 102
‘Obvious Risk’
The third definitional issue is what, precisely, is an obvious risk? The term ‘obvious
risk’ is also defined broadly in the various provisions, as any risks obvious to a
‘reasonable person in the position of’ the plaintiff.103 There are, however, some
differences in the details in each jurisdiction’s relevant section.
Section 5F of the CLA (NSW) states:
(1) For the purposes of this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
Although the test is objective, the issue is one of whether ‘the probability of [the
risk’s] occurrence is or is not readily apparent to the reasonable person in the
96 Jaber v Rockdale City Council (2008) Aust Tort Reps 81-952; [2008] NSWCA 98. 97 Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32. 98 Vreman and Morris v Albury City Council [2011] NSWSC 39. 99 Falvo v Australian Oztag Sports Association (2006) Aust Torts Reps 81-831; [2006] NSWCA 17. 100 Lormine Pty Ltd v Xuereb [2006] NSWCA 200. 101 Laoulach v Ibrahim [2011] NSWCA 402, [121], and [122]-[124], Tobias AJA (Giles and Macfarlan
JA agreeing) disagreeing with the trial judge’s conclusion on this point in Laoulach v El Khoury [2010]
NSWSC 1009. 102 [2006] NSWSC 288, [86]. 103 CLA (NSW) s 5F, CLA (Qld) s 13, CLA (Tas) s 15, CLA (WA) s 5F.
35
position of the plaintiff’.104 Subjective factors such as ‘age, experience and personal
characteristics’ are relevant to the determination.105 Therefore, in Doubleday v
Kelly,106 the NSW Court of Appeal held that the risks of rollerblading on a trampoline
were not obvious to a reasonable 7-year-old girl.
Given the very fact-based approach encapsulated by the definition, it is difficult to
make any general statements of legal principle. Individual cases will turn on their
facts. Some examples of the determination of ‘obvious risk’ include diving cases, in
which courts have repeatedly held that sustaining serious injury is an obvious risk of
diving into water of unknown depth;107 similarly, being hit by a golf ball struck
without prior warning by a fellow golfer is an obvious risk of golf, at least where the
plaintiff knew that the defendant was about to take his shot.108 The courts therefore
have the capacity flexibly to analyse the facts and the articulation of ‘obvious risk’ to
reach potentially different outcomes in any given case.
The degree of precision or generality with which one states the ‘risk’ in question will
impact on the conclusion: but the courts seem generally to prefer a more precise
articulation of the risk ‘which matured and caused’ the injury.109 Thus, where a
plaintiff slipped as a result of a residue of polish remaining on a floor, the relevant
risk was not falling on a polished floor, which was an obvious one, but instead, falling
as a result of the residue. The latter risk was not ‘obvious’.110 Taking a recreation
example, what needs to be obvious is more than the end result of an activity―for
example, falling off a horse―but rather the manner in which the risk materialised
must also have been obvious―for example, falling off a horse as a result of the
saddle slipping: compare Mikronis v Adams.111 By way of contrast, however, in a case
104 Jaber v Rockdale City Council (2008) Aust Tort Reps 81-952 at 61,707; [2008] NSWCA 98, [35]
(Tobias JA). 105 Carey v Lake Macquarie City Council (2007) Aust Tort Reps 81-874, 69,235; [2007] NSWCA 4,
[97] (McLellan CJ at CL). 106 [2005] NSWCA 151. 107 Eg, recently, Laoulach v Ibrahim [2011] NSWCA 402, though in the circumstances of the
particular dive, it was not a dangerous recreational activity because the risk of an accident materialising was very low [123]; Jaber v Rockdale City Council (2008) Aust Tort Reps 81-952; [2008] NSWCA 98 108 Pollard v Trude [2009] 2 Qd R 248; [2008] QCA 421. 109 C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136, [174] (Bryson JA, McColl JA agreeing). 110 C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136, [172]-[175] (Bryson JA, McColl JA
agreeing). 111 [2004] 1 DCLR (NSW) 369.
36
not concerned with the Civil Liability Acts, Woods v Multi-Sport Holdings Pty Ltd,112
the majority, Gleeson CJ, Hayne and Callinan JJ, treated the risk of being hit in the
eye and suffering serious injury while playing indoor cricket as ‘obvious’.113 The
minority, McHugh and Kirby JJ instead focussed on the enhanced risk of serious eye
injury posed by the softness and size of the ball used, such as would allow it to
penetrate the eye socket,114 which is not an obvious risk.
On this narrower interpretation of obvious risk, the provisions that limit liability by
reference to ‘obvious risks’ will not be as unduly harsh on plaintiffs as they otherwise
could be. It would seem as a general point that the courts will be reluctant to
conclude that a risk is obvious where it only eventuates because of the negligent
conduct of the defendant; to do otherwise would lead to harsh outcomes.115 In two
states, Queensland and Victoria, the legislation has clarified this question, at least in
relation to where the negligence relates to the maintenance, care and so on of a
‘thing’. The CLA (Qld), s 13(5) provides that:
(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.116
[7.3] Risk Warning: NSW and WA
Two states, New South Wales and Western Australia, have provisions that excuse
defendants for any liability in relation to risks in respect of which the defendant has
given a ‘risk warning’. The two provisions, s 5M CLA (NSW) and s 5I CLA (WA), are
similar, but not identical. The provisions are complex and long; there has been little
successful use of those provisions, in part, one might assume, because of the
complexity. The first subsection of s 5M CLA (NSW) states:
112 (2002) 208 CLR 460; [2002] HCA 9. 113 Ibid, eg, 471-2, [34]-[36] per Gleeson CJ and 503-504, [144] per Hayne J. 114 Ibid [80] per McHugh J and [126]-[131] per Kirby J. 115 See J Dietrich, ‘Liability for Personal Injuries Arising from Recreational Services’ (2003) 11 Torts
Law Journal 244, 258; and B McDonald, ‘Legislative Intervention in the Law of Negligence: The
Common Law, Statutory Interpretation and the Tort Reform in Australia’ (2005) 27 Sydney Law
Review 443, 471. 116 CLA (Vic) s 53, is identical to the CLA (Qld) provision, but without the examples attached to subs
(5) in the CLA (Qld).
37
5M 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.
One of the reasons why it may be difficult to successfully rely on these provisions is
that ‘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’ (CLA (WA) s 5I(4); CLA (NSW) s
5M(3)). This requires a careful analysis of the type of risk that caused the harm, as
well as whether the wording and interpretation of the warning encompasses within
it that risk. General statements such as that the participants engage in the activity at
their ‘own risk’ will generally not amount to a risk warning. For example, a warning
that horse-riding is dangerous and that riders ride at their own risk does not warn of
the specific risk of the saddle slipping.117
Although there has been little discussion of these sections in the case law, where the
‘risk-warning’ defence has been raised, the courts have interpreted the defence
narrowly. The task of the court is to identify the precise risk that has occurred,
whether any warning was specific to the risk that did occur and, if not, whether any
general warning encompassed the specific risk that did occur: Vreman v Albury City
Council.118 In relation to the last point, s 5M(5) states: ‘A risk warning need not be
specific to the particular risk and can be a general warning of risks that include the
particular risk concerned (so long as the risk warning warns of the general nature of
the particular risk).’
In Vreman, a sign setting out conditions as to the use of a skate park including the
need to wear safety gear and the statement ‘skate at your own risk’, did not amount
to a risk warning about the specific risks that might be encountered, particularly of
serious injury. At most, the sign was a general warning about the dangers of bruising
etc that might arise from not wearing protective gear. As Harrison J stated:
117 Mikronis v Adams [2004] 1 DCLR (NSW) 269. 118 [2011] NSWSC 39, [107]-[114] per Harrison J.
38
Indeed, it did not warn of any ‘risk’ at all. A warning that users skated at their own risk clearly implies that a risk exists but is silent upon what it might be. Alternatively, coupled with the reference to protective clothing, the warning may be one that actually warns of risks but only those that can be obviated or sufficiently guarded against by confirming the requirement to wear such equipment. Even if it be accepted that the nature of the activities engaged in at skate parks obviously include a risk of falling, the warning in this case did not extend to include a reference to the risk of serious or catastrophic injury. Finally, the warning in this case said nothing about any risk or risks associated with the slipperiness of the surface of the skate park, the difference between a painted and unpainted surface, the characteristics of gradients or steep surfaces and their relationship to the likelihood of slipping or falling or the effect upon any of these of the presence of moisture on the surface.119
Similarly, signs that prohibit certain conduct, such as a sign prohibiting bike-riding at
the skate-park that may have been present in Vreman, or signs prohibiting diving off
bridges, need not operate as a risk warning, but merely as a prohibition.120 Unless it
is clear that the prohibition exists only because of the dangers to the persons
engaging in such activity, it will not be construed as a risk warning.
Another example in which the defendants attempted to rely on the NSW provision is
Belna. In that case, the Fernwood Fitness Centre relied on an acknowledgment
contained in the questionnaire that Ms Irwin had signed, that which stated that:
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.
The court held that this clause did not warn Ms Irwin about any risk associated with
the exercises that she undertook and hence was not a ‘risk warning’ in the terms of s
5M.121
119 Ibid [110]. 120 Ibid, [113]; in relation to ‘no diving signs’, see Dederer v Roads and Traffic Authority [2005]
NSWSC 185, [69], [87] per Dunford, overturned on appeal in Roads and Traffic Authority of New
South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 but the appeal did not deal with this issue. 121 Ibid [17]-[18].
39
[7.4] Intoxicated Plaintiffs: NSW, Qld
Two jurisdictions, New South Wales and Queensland,122 have introduced ‘no-duty’
disentitling provisions in relation to intoxicated plaintiffs. Both CLA (NSW) s 49 and
CLA (Qld) s 46 are similarly worded as to the effect of intoxication on duty of care but
the CLA (NSW) contains additional provisions going much further, adding to the
potential for harsh outcomes. If applicable, these provisions provide a complete
defence to a defendant who has injured a plaintiff intoxicated at the time of the
accident. Intoxication is defined as being ‘under the influence’ of alcohol or a drug
such as to affect a person’s faculties (CLA (NSW) s 48). The provisions are complex
and only a brief mention of CLA (NSW) s 49 is made here, which provides:
49 Effect of intoxication on duty and standard of care
(1) The following principles apply in connection with the effect that a person’s intoxication has on the duty and standard of care that the person is owed:
(a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated,
(b) a person is not owed a duty of care merely because the person is intoxicated,
(c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person. …123
This section appears to be an attempt to reinforce the common law position as
established by cases such as Romeo v Conservation Commission (NT).124 In that case
the High Court held that a defendant did not need to take special protective
measures to safeguard visitors to a recreational park from an obvious risk of falling
off a cliff, even if some of the visitors to the park may foreseeably have been
122 R J Douglas, G R Mullins and S R Grant, The Annotated Civil Liability Act 2003 (Qld.),
(LexisNexis, 1st ed, 2004) 78, [46.2], perceive CLA (Qld) s 46 as a ‘political response to community
concerns’ about awards of damages to persons who are grossly intoxicated at the time of an incident, citing the jury’s decision at the trial of Borland v Makauskas [2000] QCA 521 (BC200008025) as an
example; one wonders, since that decision was overturned on appeal, why the law was perceived to be
in need of reform? 123 Compare the very similarly worded CLA (Qld) s 46(2) which, however, states that ‘subsection (1)
does not affect liability arising out of conduct happening on licensed premises’. 124 (1998) 192 CLR 431; 151 ALR 263.
40
intoxicated and thus unable to perceive the risk. This section does not, strictly
speaking, create an absolute no-duty rule. Instead, it merely modifies the standard of
care owed by defendants in a way that makes it more difficult for intoxicated
plaintiffs to plead that regard should have been had for their (presumably
foreseeable) state of intoxication by the defendants when determining how
reasonable defendants should act.
Unlike the CLA (Qld), however, the CLA (NSW) also contains the following section:
50 No recovery where person intoxicated
(1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.
(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.
...
This section makes it even more difficult for intoxicated parties to recover where an
injury occurs while the injured party was intoxicated, unless the injury was ‘likely to
have occurred’ in the absence of such intoxication. It suggests that a causation
question needs to be asked: what would have happened to the plaintiff if we take
out the fact of his or her intoxication in the events leading up to the accident? The
section could have potentially very wide meaning, but since it is limited to NSW, and
is unlikely to apply in most fitness and recreational service contexts, it will not be
discussed further.125
[8.0] Vicarious Liability
Vicarious liability is the extension of liability to one party as a result of the wrongful
acts done by another; in our case the torts committed by that other. The most
125 It is discussed in J Dietrich, ‘Duty of Care’ (2005) 13 Torts Law Journal 17, 35-37, and in cases
such as Russell v Edwards (2006) 65 NSWLR 373; [2006] NSWCA 19 which illustrates the harshness
of the operation of the section.
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common situation in which vicarious liability arises is where an employee of a
defendant is negligent in the course of his or her employment. In such a case the
defendant will be liable alongside the employee. Indeed, in most such cases, the
injured plaintiff will most likely sue only the employer and not the employee, given
the employer’s access to insurance or likely greater resources. This means that the
fitness operator will be liable for the acts of its employees, for example, in how they
conduct fitness classes, give instructions and general advice to clients, maintain the
premises and equipment etc. Two requirements must first be met, however, before
vicarious liability arises. The party who has been negligent must be an employee of
the defendant, and the acts must have been in the course of employment.126
The distinction that the law draws between employees and non-employees, such as
independent contractors, is not always an easy one to draw; nor does it depend on
the label which has been attached to the relationship by the parties themselves. In
other words, merely labelling someone a ‘contractor’ rather than an employee is not
determinative of the question of whether in fact that person is an employee.
Ultimately, the relevant question is whether the person is engaged in a contract of
service to another (employee) or under a contract for services (independent
contractor).
A range of factors are considered by the courts, as discussed in Hollis v Vabu Pty
Ltd,127 a case in which a bicycle courier was held to be an employee, despite the
argument by the employer that the contract was merely one for specific services as
and when needed. These factors include whether the person is under the control of
the other in the performance of the day to day work, or at least whether the capacity
to control exists; tax and finance arrangements; methods of payment (hourly
payment for the time that has been worked suggests employment; payment for the
performance of specific tasks suggests independent contractor); which of the parties
provides tools and equipment; whether the persons performing the work have
particular professional or other skills; and whether they can work for others or
themselves, so that, in effect, they are in business for themselves. Obviously, given
126 See generally, Balkin and Davis, Ch 26. 127 (2001) 207 CLR 21.
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the generality of these factors, and the difficulty in weighing them up, it is not easy
to draw conclusions about the status of a given worker. For example, a yoga
instructor who does classes at a fitness centre at various times during the week, for a
total of six hours, could either be classified as a casual employee or a contractor,
depending on the precise details of the parties’ contractual arrangement.
The question of whether an act was performed in the course of the employment
does not raise difficult issues in most ordinary situations. Where, for example, a
client suffered personal injury as a result of the exercises negligently prescribed by a
newly qualified personal trainer employed by the defendant fitness centre, the
defendant was held vicariously liable: Wilson v Nilepac Pty Ltd t/as Vision Personal
Training.128 Extraordinary cases involving, for example, extreme conduct (such as
intentional wrongdoing by the employee) or acts that occur outside of the workplace
or outside of work hours, are more problematic:129 such borderline cases will not be
examined here.
Finally, even in relation to non employees, such as contractors, if such persons act as
agents appointed to do particular tasks, there may be limited scope for vicarious
liability if the agent has authority to do the particular act, or is doing it on behalf of
the principal as part of the authorised task. Again, this topic is outside the scope of
this work and turns on a detailed consideration of the specifics of the given
circumstances.130
[9.0] Personal Injury Damages
The purpose of personal injury damages is to compensate the injured party by
monetary means. The aim of the process is to determine such sums of money that
adequately place injured parties in the same position as prior to their injury, as much
as money can do so, though it is clear that the determination of monetary value of a
128 [2011] NSWCA 63. 129 For example, a soldier who took home an explosive shell was acting outside the course of his
employment and his employer was held not liable for injuries from the shell exploding: McClure v
Commonwealth [1999] NSWCA 392. 130 See, eg, Balkin and Davis, 727-8.
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plaintiff’s loss, particularly for seriously injured plaintiffs, ‘is fraught with obvious
difficulties’.131
The assessment of damages requires consideration of financial losses that the
injured party has already incurred up to the date of assessment, such as medical
costs, lost wages and the like, as well as future ongoing losses, such as the costs of
needs created (for example, ongoing care costs, future medical and rehabilitation
costs) and loss of earning capacity, as well as past and future pain and suffering. In
relation to the last of these, it is self-evident that money cannot ever adequately
compensate for such loss, so that all that damages can do ‘is to provide fair and
reasonable solace to the plaintiff for that suffering’.132
The rules that govern the assessment of the various heads of losses are complex and
consist of detailed provisions of the Civil Liability Acts, as well as common law
principles. A consideration of those rules falls outside this work.
131 Balkin and Davis, 366. See generally Ch 11 for a discussion of the relevant rules. 132 Balkin and Davis, 365.