Kovacevic v Holland Park Holdings Pty Ltd
[2010] QDC 279
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- Unreported Judgment
- Kovacevic v Holland Park Holdings Pty Ltd[2010] QDC 279
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Kovacevic v Holland Park Holdings Pty Ltd[2010] QDC 279
Kovacevic v Holland Park Holdings Pty Ltd[2010] QDC 279
DISTRICT COURT OF QUEENSLAND
CITATION: | Kovacevic v Holland Park Holdings Pty Ltd [2010] QDC 279 |
PARTIES: | ANNA KOVACEVIC Plaintiff AND HOLLAND PARK HOLDINGS PTY LTD First defendant AND HOLLAND PARK HEALTH CLUB SERVICES PTY LTD Second defendant |
FILE NO/S: | BD1244/07 |
DIVISION: | |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 15 July 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29, 30 April 2010 |
JUDGE: | McGill DCJ |
ORDER: | Judgment that the second defendant pay the plaintiff $82,337.26. |
CATCHWORDS: | NEGLIGENCE – Dangerous premises – occupier’s liability – gymnasium used for exercise classes – whether floor unsafe – whether way classes conducted unsafe. CONTRACT – Implied terms – Trade Practices Act – whether exclusion clauses effective – whether breach of implied warranties. TRADE PRACTICES – Consumer protection – contract for services – whether implied warranties excluded – whether recreational services – whether breach of warranties. Trade Practices Act 1974 (C’th) ss 68, 68A, 74. Cook v Bowen [2007] QDC 108 – followed. Gharibian v Propix Pty Ltd [2007] NSWCA 151 – applied. Leyden v Caboolture Shire Council [2007] QCA 134 – cited. |
COUNSEL: | J. McClymont for the plaintiff C.S. Harding for the defendants |
SOLICITORS: | Shine Lawyers for the plaintiff Barry Nilsson for the defendants |
- [1]On 23 July 2005 the plaintiff was attending a fitness class at a gymnasium owned by the first defendant and operated by the second defendant when she fell, suffering a fracture of her left ankle. She alleges that this injury was caused by the negligence or breach of contract of the defendants. Liability was disputed, though there was no issue as between the defendants who were both represented before me by the one counsel. Contributory negligence was raised in paragraph 16 of the further amended defence of the defendants, on the other hand, submissions were advanced in support of a defence of volenti, though that was not raised directly on the pleadings. The question of quantum was also in issue.
How the plaintiff fell
- [2]The first issue logically is as to how it came about that the plaintiff fell, since there was an issue even as to this. The plaintiff was one of a number of people who were taking part in a particular exercise programme offered at the gymnasium. The programme, called “Body Attack”, was a relatively vigorous form of exercise designed to build up the heart, and involved all of the participants performing together a series of particular exercises while particular tracks of music were played.[1] The programme had been put together by a business which designs these programmes and provides the music for them, so that the particular exercises to be performed, and the length of time for which they were to be performed, were predetermined.[2] There was an instructor for the class who was an independent contractor, and who demonstrated the exercise to be performed for each part of the programme, referred to as each track because each part had its own piece of music, and who encouraged vigorous participation in the exercises.
- [3]The particular track during which the plaintiff was injured occurred towards the end of the exercise programme.[3] The exercise was described by the witnesses as involving taking three steps to one side and then three steps to the other side, but it was to be performed quite vigorously so that ordinarily there would be only one foot on the floor at a time.[4] The third step involved the plaintiff’s right foot at a time when the plaintiff’s body was moving to the right; the foot was put out to the right and the plaintiff’s weight was taken onto it, while at the same time the plaintiff’s body had to lose its lateral momentum, since the next move in the exercise was a step to the left. Accordingly, when the right foot was placed on the floor as the third step to the right was taken, there would be a relatively large lateral force involved, apart from the vertical force needed to support the plaintiff’s weight.[5]
- [4]The plaintiff’s evidence was that she had been performing this track for some time when she stepped to the right, and as she made the third step her right foot, instead of gripping the floor, slipped to the right.[6] She more or less automatically put her left foot onto the floor quickly in order to save herself, but because her body was still moving to the right and because the left foot was placed awkwardly, it twisted and her left ankle was fractured.[7] When that occurred she fell to the floor in considerable pain.
- [5]A different version of the accident was given by the instructor, who gave evidence. She agreed that the fall occurred on the third step of the three-step sideways movement (p 91), but denied that there was any slipping and said that the plaintiff simply collapsed to the floor: p 90. She agreed that when she had been speaking to a loss adjuster in 2006 she had said that as the plaintiff was stepping to the side she rolled over on her ankle: p 97.
- [6]I reject the evidence of the instructor and prefer the evidence of the plaintiff, essentially for three reasons. First, the instructor refused to agree with some things which had been recorded as said by her to the loss adjuster in 2006, to which I will return shortly.[8] These were matters of assistance to the plaintiff, and I had the distinct impression that she was tailoring her evidence to assist the defendants. Second, it seems to me that if the plaintiff had rolled on the ankle on which she had come down when she executed the third step to the right, she would have suffered a fracture of the right ankle not the left ankle. Third, I was generally not very impressed with the instructor as a witness. She did not impress me as a reliable witness, whereas there was nothing about the plaintiff’s demeanour to suggest that she was not reliable. I do not regard the comment to the instructor after the fall[9] as of any significant. I do not think there was any significant inconsistency demonstrated with what the plaintiff had stated previously about her fall. I therefore accept that the accident occurred in the manner described by the plaintiff.[10]
Why the plaintiff fell
- [7]The next issue is why the plaintiff fell. If the accident occurred in the way described by the plaintiff, the reason for the plaintiff’s fall is that her right foot slipped on the third step to the right in the exercise; for practical purposes the accident occurred because the plaintiff’s right foot slipped when it came into contact with the floor as she took the third step to the right. The floor was a sprung wooden floor with a polished and coated surface.[11] The surface treatment used for the floor was a conventional treatment for a wooden floor of a kind frequently used in gymnasia. Its function was essentially aesthetic, though it also provided a surface which was easy to clean and no doubt relatively durable.[12] It was not chosen with any particular regard to slip-resistant properties, nor did it have any particular slip-resistant characteristics. The coefficient of friction of the floor in its treated state as it was at the time of the accident was tested by the plaintiff’s expert, which when dry produced a coefficient of friction of between 0.31 and 0.48, depending on whether the floor was dusted and the position and direction of the test.[13] He did not suggest that that coefficient was too low for a dry floor.
- [8]The expert’s tests of a wet floor produced what was described as a British pendulum score of 18.[14] This was the result of the application of a standardised testing process for determining the slipperiness of a wet floor, a different process from that used with a dry floor, though an approximate coefficient of friction can be obtained from the British pendulum score. The science is somewhat complicated, and no doubt bedevilled by the importance of being able to test in a way which is standardised so that test results are comparable with results obtained elsewhere using the standardised processes,[15] but for present purposes what matters is that the coefficient of friction, and hence the slip resistance, is much lower for this surface when wet than when dry.
- [9]The defendants’ expert, who essentially confined his expressions of opinion to a critical commentary on aspects of the report of the plaintiff’s expert and did not offer any competing analysis of or explanation for the fall, pointed out that the testing process by the British pendulum method involves having the floor a good deal wetter than the evidence suggested was the case at the relevant time.[16] I accept that that is correct, and I also accept that the plaintiff’s expert used that degree of wetness correctly because he was following the standardised procedure used for that method of testing.
- [10]The difficulty is that I do not know, and there is no way for anyone to know,[17] what the area was of the plaintiff’s right shoe which first came into contact with the floor, and which began the slip when it lost traction. It may have been quite a small area. It is impossible to tell how much liquid would have been required in just the right place to cause the shoe to lose traction in the circumstances prevailing during this particular exercise, and the real significance of the testing is that it shows that the wooden floor, although having a reasonable slip-resistant character (that is to say, a reasonably high coefficient of friction) when it is dry, became much more slippery when it was wet.[18]
- [11]It may well be that in view of the limited amount of moisture on the relevant area the coefficient of friction of that part of the floor at the crucial moment was not as low as the figure obtained (indirectly) by the test that Mr O'Sullivan conducted. But the precise coefficient of friction at that point is not I think of importance; the significance of the test is really just that it shows that the surface of the floor is significantly more slippery when wet. That provides an explanation for the fact that the fall in fact occurred in the way described by the plaintiff. I do not consider that this feature has the effect of invalidating everything that Mr O'Sullivan said.
- [12]What matters in a particular case is how much liquid there is on the particular part of the floor with which the shoe first comes into contact, because what mattered in terms of the mechanism of the plaintiff’s fall was the initial slip. It was the plaintiff’s instinctive reaction to the initial slip that caused her to put her left foot onto the floor to become weight bearing, which in turn caused the injury to the left ankle. Accordingly, it would not have mattered if the right foot had grabbed the floor reasonably quickly rather than simply continuing to slip. It cannot be assumed that the full surface area of the sole was placed on the floor when the plaintiff’s foot first contacted it and first attempted to put some pressure on it, and there is no way of knowing how large that area was. It may not have required very much contamination of liquid to produce a significant reduction in the coefficient of friction over that area, which is what was important.
- [13]The plaintiff’s sister, who was also at the exercise class and who came to her aid after the fall, gave evidence which I accept that she saw droplets of clear liquid on the floor in the vicinity of the area where the plaintiff had fallen.[19] The exercise was a vigorous one, likely to promote perspiration,[20] and the plaintiff said and I accept that the person who was exercising immediately to her right appeared to her to be perspiring freely during the class: p 17. It is obviously possible that a person who is exercising vigorously and perspiring freely could shed droplets of perspiration onto the floor,[21] and if as I accept there were droplets of clear liquid on the floor then the probable explanation for their presence is the perspiration of the persons taking part in the exercise class. No other mechanism was suggested on behalf of the defendants.
- [14]In these circumstances, I find that the plaintiff’s right foot slipped on this occasion because the area where her right foot first touched the ground as she stepped to the side on the third step was sufficiently lubricated with droplets of perspiration to make the floor at that particular point too slippery to enable it to resist effectively the lateral forces associated with the plaintiff’s performance of the exercise in the way I have described.[22] That provides a reasonable and logical explanation for the fall to have occurred in the way described by the plaintiff, which is how I accept it occurred. No plausible alternative mechanism for such a fall was suggested on behalf of the defendants. I therefore find on the balance of probabilities that that was the explanation for the plaintiff’s fall.
Negligence
- [15]The question of negligence then has to be considered in this context. The defendants’ case was that coated timber floors are common enough for areas where exercises are performed,[23] and that injuries of this seriousness are very rare arising out of exercise classes.[24] I accept that that is true, though I also accept that it is not that unusual for someone doing exercises on a coated wooden floor to slip, and perhaps fall, though without serious injury. The instructor who was conducting this particular class, when speaking to the loss adjuster, said that earlier in the same class she had slipped on her own perspiration on the podium.[25] Although the instructor did not admit that she made this statement, the report of the loss adjuster attributing that statement to her was tendered under s 92 and counsel for the defendant did not require the loss adjuster for cross‑examination. I find that this was a prior inconsistent statement and is therefore admissible as to the truth of its contents. I accept this evidence that that occurred.[26]
- [16]In these circumstances, it follows, both from the theoretical analysis conducted by the plaintiff’s expert and by the evidence of practical experience, that perspiration shed during an exercise class can make a wooden floor of this nature slippery in spots, and that can cause a participant to lose footing if a foot happens to land on a spot where it is contaminated in that way in circumstances where there is a significant lateral force involved. I accept that that was reasonably foreseeable, as was the proposition that a person who lost footing in circumstances where there was a significant lateral force involved would be likely to fall.
- [17]Although many people fall without adverse effects, falls can produce significant injury, at least as serious as the injury suffered by the plaintiff in the present case, so injury of such significance was, I find, reasonably foreseeable in the circumstances as a result of performing vigorous exercise which would be likely to stimulate perspiration on a coated timber floor where the exercise routine involves significant lateral forces when a foot hits the ground. I therefore find that there was a duty on the part of the occupier to take reasonable care to prevent injury being suffered by a person engaging in such an activity.
- [18]It is important to analyse the situation in the context of the particular combination of circumstances which arises here: the wooden floor, which has the potential to become relatively slippery as a result of the shedding of perspiration during a vigorous exercise class, and a vigorous exercise class conducted where there are other people around who could well be shedding perspiration, and which involves exercises where there will be significant lateral forces associated with a foot being placed on the floor. The exercise in question, involving moving the body abruptly and with some speed to one side and then to the other would generate significant lateral forces; the defendants’ expert conceded that this particular exercise, if performed vigorously, would test the slip resistance of a floor compared with other exercises which might well be done: p 25 line 15.
- [19]There is the further consideration that it was conceded that no particular steps were taken to mop up perspiration which might be on the floor.[27] There was a reference to mats[28] being used at one stage during the exercise programme when push‑ups were being undertaken, but the instructor said (and I expect that her evidence is probably reliable in relation to this) that the push-ups were some time before the exercise where the plaintiff fell: p 106. If the mats had the incidental effect of soaking up or dispersing perspiration, therefore, that effect would not have been applicable for some time prior to the relevant exercise track. The instructor had also said that the people who put together the programme had recommended that steps be taken to wipe up perspiration during the exercise class,[29] and no particular steps were taken during this class.
- [20]It is therefore not a question of whether it was negligent simply to have coated timber floors for an exercise class. I accept that there are advantages in the use of floors of that nature rather than, for example, carpeted floors. It also seems to me that the use of a wooden floor is not likely to be a problem in circumstances where a situation such as the present is unlikely to arise. The plaintiff’s injury in the present case was caused by the particular combination of circumstances, the wooden floor, the presence of moisture in the form of perspiration, and a form of exercise which generated high lateral forces at the point of contact between the participant’s shoe and the wooden floor. Perspiration is, I suspect, inevitably associated with strenuous exercise, but no doubt precautions can be taken to prevent difficulties arising from the contamination of the floor in that way. One obvious method is to avoid methods of exercise which give rise to substantial lateral forces of that kind in circumstances where there is a risk of perspiration on the floor; another is to take precautions to remove any perspiration which may be present, by checking the floor and wiping it if necessary, prior to the time when such an exercise routine is performed.
- [21]I am not persuaded that having a wooden floor is in itself negligent, but it seems to me that, because of the risk of slipping and the consequent risk of injury, it was negligent to cause or permit an exercise class to be conducted which involved a method of exercise involving such strong lateral forces without taking precautions to prevent contamination of the floor from perspiration prior to the commencement of that particular form of exercise. It does not seem to me that any of the practical competing considerations adverted to by the defendant’s witnesses in relation to the use of wooden floors provided any justification for that combination of circumstances, or provided any practical reason why such a combination of circumstances could not be prevented in a way which was still consistent with the reasonable operation of exercise classes at the gymnasium. In those circumstances I consider that there was a failure in this case to take reasonable care for the safety of the participants in the exercise class, including the plaintiff, by permitting that combination of circumstances to exist.
The plaintiff’s pleaded case
- [22]Because of the different position of the two defendants, and because of the existence of the contract between the plaintiff and the second defendant, it is necessary to pay attention to the issues raised on the pleadings. It was admitted that the first defendant was a company which owned the relevant fitness centre and was responsible for its construction in that it caused that construction to be effected by properly qualified builders. It was also admitted that the second defendant controlled and managed the daily operations of the fitness centre and had responsibility for the policies and practices adopted by the fitness centre and the health and safety requirements of the fitness centre. The second defendant was a corporation for the purposes of the Trade Practices Act 1974.
- [23]The plaintiff was a member of the fitness centre for which she paid a membership fee per month, and was a consumer for the purposes of the Trade Practices Act, and a lawful entrant to the fitness centre. It follows from what I have already found that on 23 July 2005 the plaintiff participated in a class conducted by a contractor of the second defendant, Ms Yates, that the class included approximately 20 people who were positioned in rows and stationed about one and a half to two metres apart, with the plaintiff slightly to the left of the instructor.
- [24]I find the allegations in paragraphs 7(b) and (c) of the statement of claim proved in the light of the evidence; I am not persuaded that the air-conditioning which I find was provided at the gymnasium[30] was sufficient to prevent perspiration during vigorous exercise. As to the allegation in paragraph 7(e), I find that the presence of sweat on the floor of the aerobics room was likely to cause that part of the floor surface which had sweat on it to become slippery and therefore to pose a significant risk of slipping to the participants in the aerobic class. I have already made findings in relation to paragraph 8; and do not think that I need to go into that in more detail. I reject the contrary allegations in paragraph 4 of the defence.
- [25]In relation to the question of a duty of care, it was submitted that the plaintiff voluntarily assumed the risks associated with participating in the class because, by a contract between the plaintiff and the second defendant dated 20 January 2005, the plaintiff agreed that she used the fitness centre at her own risk, would not hold the defendants responsible for personal injury which she suffered, and waived any legal claims against the defendants for any injury, loss or damage sustained or incurred by her. The plaintiff in her reply to that defence admitted that the written portion of the contract purported to include terms to that effect, but said that by operation of law each of those terms was unlawful, void and liable to be severed from the balance of the contract: paragraph 7.
- [26]The plaintiff seeks to rely on terms implied into the contract by the Trade Practices Act 1974, and on the proposition that the terms of the contract, insofar as they purported to exclude, restrict or modify the liability of the second defendant for breach of those implied terms, were void.[31] It was admitted by the defendants that the contract was for the provision to the plaintiff by the second defendant of services including the use of the facilities at the fitness centre and participation in fitness classes directed and supervised by independent contractors of the second defendant. It was admitted that the services were supplied by the second defendant in the course of its business and that the timber floor was a material supplied in connection with the services.[32]
- [27]The statement of claim in paragraph 10C alleged that the services were supplied pursuant to the contract “for the purpose of the plaintiff undertaking exercise in a supervised, safe and healthy manner.” Paragraph 10D alleged that the plaintiff expressly or implied informed the second defendant of the purpose for which she required the services. In response in paragraph 6D the defendants said that the services were supplied “for the purpose of enabling the plaintiff to make use of facilities at the fitness centre and to participate in classes offered by the fitness centre”, and admitted that the second defendant was expressly or impliedly informed that this was the purpose for which the plaintiff required the services.
- [28]In submissions the defendants asserted that there was no allegation that the plaintiff had made known any result she desired the services to achieve; it seems to me plain when paragraphs 10C and 10D are read together that paragraph 10D is an allegation that the plaintiff expressly or impliedly informed the second defendant of the purpose identified in paragraph 10C. That it was so understood at the time is consistent with the terms of paragraph 6D of the defence. It seems to me that on the pleadings there is no dispute that the plaintiff had a purpose and that the second defendant was informed of a purpose, the dispute is as to the purpose in question. The issue on the pleadings is not as to whether the second defendant was informed of a purpose, but as to the purpose of which the second defendant was informed.
- [29]There was no evidence that the second defendant was informed expressly of either purpose; in the circumstances I find that the purpose for which the services were supplied (that is to say the plaintiff’s purpose in obtaining the services) was the purpose of undertaking exercise in a supervised, safe and healthy manner, and that she impliedly informed the second defendant of that purpose when she requested the services. That arose bearing in mind that the services offered at the gymnasium in connection with the membership for which the plaintiff applied included supervised exercise classes, that an application for membership that she completed included details of her medical history and questions directed to her ability to exercise safely,[33] and from the fact that promoting health and fitness is the essential purpose of engaging in exercise at fitness classes.
- [30]That the purpose implied involved an element of safety in such circumstances is supported by the approach of the Court of Appeal of New South Wales in Gharibian v Propix Pty Ltd [2007] NSWCA 151 at [49]. The submissions on behalf of the defendants in relation to this case point up the difference between the nature of the facility the safety of which was in issue in that matter, and the circumstances under which its safety was to be considered, and the facility here and the circumstances under which its safety is to be considered. They do not, however, provide any answer to the approach of the New South Wales Court of Appeal with regard to matters of principle. Bearing in mind that that is a decision of an intermediate appellate court in relation to the operation of a Commonwealth statute, I consider that I should follow it. I therefore find the facts alleged in paragraphs 10C and 10D of the amended statement of claim.
- [31]It was then alleged in paragraph 10E that it was an implied term of the contract that the second defendant would take reasonable care to avoid a foreseeable risk of injury to the plaintiff. This implication was said to arise by operation of law. No doubt such a term would ordinarily arise by operation of law in relation to a contract for the provision of services, but such an implication is subject to any terms expressly agreed between the parties. It seems to me that the terms sought to be implied by this paragraph would be inconsistent with the express terms of the contract, particularly those referred to earlier and that in those circumstances such an implication would not be made.
- [32]It was then alleged in paragraph 10F that it was an implied term of the contract that the second defendant would exercise due care and skill in rendering the services. The plaintiff relied on s 74 of the Trade Practices Act, as well as by operation of law. In the latter respect, the implied term suffers the same difficulty as that sought to be implied in paragraph 10E. As to s 74 of the Trade Practices Act, it was also submitted that the contract excluded the application of that section. In response to the plaintiff’s reliance on s 68 of the Trade Practices Act, the defendants relied on the proposition that the contract was a contract for the supply by a corporation of recreational services, so that pursuant to s 68B of the Act the terms of the contract referred to earlier were not void pursuant to s 68 of the Act. In response, the plaintiff relied on the proposition that those terms do not limit the exclusion, restriction or modification to liability for death or personal injury and were therefore not excluded from the operation of s 68 by s 68B.
- [33]Section68B of the Trade Practices Act 1974 provides relevantly:
“(1)A term of a contract for the supply by a corporation of recreational services is not void under s 68 by reason only that the term excludes, restricts or modifies or has the effect of excluding, restricting or modifying:
- (a)the application of s 74 to the supply of the recreational services under the contract; or
- (b)the exercise of a right conferred by s 74 in relation to the supply of the recreational services under the contract; or
- (c)any liability of the corporation for a breach of a warranty implied by s 74 in relation to the supply of the recreational services under the contract;
so long as:
- (d)the exclusion, restriction or modification is limited to liability for death or personal injury; and
- (e)the contract was entered into after the commencement of this section.
- (2)In this section …
‘Recreational services’ means services that consist of participation in:
- (a)a sporting activity or a similar leisure time pursuit; or
- (b)any other activity that:
- (i)involves a significant degree of physical exertion or physical risk; and
- (ii)is undertaken for the purposes of recreation, enjoyment or leisure.”
- [34]The first issue which arises is whether this was a contract for the supply of recreational services. The contractual documents in Exhibit 4 do not identify, certainly not with any degree of precision, what it is that the plaintiff received for her membership fee, although it contained an acknowledgment that she understood what was included with her membership. Neither party led any evidence as to just what that was. The statement of claim alleged that the contract was for the provision of services including the use of the facilities at the fitness centre and participation in fitness classes, and that was admitted by the defendants. There was little evidence as to what facilities there were at the fitness centre for the plaintiff to use, and so far as the evidence goes all that has been established is that the contract was for the provision of services which extended to participation in exercise classes. If there was any other aspect of the services provided under the contract which could have amounted to recreational services as defined in s 68B, evidence of it was not led.
- [35]As to participation in exercise classes, in my opinion this does not amount to “recreational services” of the purposes of s 68. I do not regard such classes as a sporting activity or similar leisure time pursuit. Sporting activities can cover a wide range of activities, not all of them particularly physical, but the dominant characteristic of sport is that it is competitive; the participants compete against each other, on either an individual or team basis. So far as the evidence before me reveals, the exercise classes were not in any way competitive. Nor does it strike me as something similar to a sporting activity. I am not sure what would be covered by the expression “similar leisure time pursuit”, but although a fitness class could be described as a leisure time pursuit I would not regard it as one which was similar to a sporting activity, except perhaps to the extent that sporting activities commonly involve physical exertion. That cannot be the test for similarity, otherwise paragraph (a) would cover the field, and indeed be wider than paragraph (b).
- [36]As to paragraph (b), this was an activity which involved a significant degree of physical exertion but it was not in my opinion undertaken for the purpose of recreation, enjoyment or leisure. It was essentially undertaken for the purpose of physical fitness, that is to say for the purpose of promoting the health and well-being of the participant. That I regard as something distinct from matters of recreation, enjoyment or leisure. In my view, this was simply not the sort of activity which that paragraph was intended to cover; I expect that the legislature had in mind something such as mountaineering. The short answer to this plea is that the contract in the present case, at least so far as the evidence before me reveals, was not a contract for the supply by the second defendant of recreational services.
- [37]There is the further consideration that paragraph (d) would not have been satisfied in this case because the exclusion, restriction or modification was not limited to liability for death or personal injury. The waiver in the document headed “Member and Guest Etiquette” extended expressly to all claims for articles lost, stolen or broken at the centre, or for loss or damage to any other property including automobiles and contents. The form headed “Application for Membership” included a waiver which included an acknowledgment that “my property and my person shall be at my own risk” and referred to both loss of property and personal injury. It follows that it was not limited to liability for death or personal injury and the requirement of paragraph (d) was not satisfied. On this ground also the defendants cannot rely on s 68B.
- [38]If the exclusion of s 68 is not effective, that section renders the two waiver clauses void, because on their face they would purport to exclude, restrict or modify the terms implied into the contract by s 74 of the Act. It follows that by s 74(1) there was a term implied into the contract that the services would be rendered with due care and skill, and that any materials supplied in connection with those services would be reasonably fit for the purpose for which they were supplied.
- [39]As for s 74(2), I have already found that the plaintiff by implication made known to the second defendant the purpose for which the services were required, namely the purpose of the plaintiff’s undertaking exercise in a supervised, safe and healthy manner, and it follows that there was an implied warranty that the services supplied and any materials supplied in connection with those services would be reasonably fit for that purpose. I consider that in the circumstances prevailing here it was reasonable for someone in the position of the plaintiff to have relied on the skill or judgment of the second defendant in relation to that matter.
- [40]As the analysis in Gharibian (supra) shows, a breach of an implied term of the contract can occur without any negligence on the part of the defendant.[34] The obligation is not absolute; the statutory warranty implied is that the services will be reasonably fit for that purpose. It is not an answer for the defendants to say that the services were under the control of an independent contractor. The question is whether there was a breach of that warranty; in the light of the analysis that I have given earlier, I consider that the services in the form of the conduct of the exercise class on this occasion, where a class on this wooden floor involving vigorous exercise including exercise routines which involved foot movements where there were likely to be substantial lateral forces involved, and where participants were likely to be perspiring, and where no precautions were taken against the presence of perspiration on the floor, did mean that on this occasion the services as they were supplied were not reasonably fit for that purpose. There was therefore a breach of the implied contractual warranty on the part of the second defendant.
- [41]In relation to the question of whether the services were provided with due care and skill, again in the light of the analysis earlier it seems to me that there was a failure to recognise and make proper allowance for the hazards associated with slipping when exercising on a wooden floor in this particular way and as vigorously as was required by this particular exercise programme, and hence a breach of this warranty.
- [42]In my opinion there was also negligence on the part of the second defendant. Although the instructor was an independent contractor, she was allowed relatively little independent judgment in what she did and how she did it. She was required to use the particular exercise package selected by the second defendant at a particular time and in the aerobics room with the wooden floor.[35] I am prepared to infer that the defendant knew or ought to have known that she was not taking any precautions against the presence of perspiration on the floor during the exercise class. In those circumstances, I consider that there was a failure on the part of the second defendant to take reasonable care for the plaintiff’s safety, so the second defendant is liable in tort also.
- [43]An argument was advanced by the defendants that the plaintiff was volenti in relation to this matter, but it seems to me that as it was advanced the argument was based on the waivers in the application for membership, and, having found that the waivers are void under s 68 of the Trade Practices Act, it follows that I need not consider this argument further. Apart from those waivers, it seems to me clear that the test for accepting the risk as discussed by the Court of Appeal in Leyden v Caboolture Shire Council [2007] QCA 134 would not be satisfied here.
- [44]An allegation of contributory negligence was pleaded in paragraph 16 of the defence. It seemed to me that that was abandoned on behalf of the defendants, or at least not pressed in argument; in any event, I am not persuaded that any failure on the part of the plaintiff to take reasonable care for her own safety has been made out on the evidence.
- [45]With regard to the first defendant the position appears to be that it was responsible for the design and construction of the centre, but was not occupying it and was not conducting the exercise classes in it at the time of the plaintiff’s accident. There was no contract with the first defendant, though had the exclusion clauses in the contract with the second defendant not been rendered void by s 68, it may be that they could have protected the first defendant from any liability. It is not necessary to decide this question, or indeed to examine closely the true interpretation of the actual clauses, in view of my conclusion in relation to the effect of s 68 of the Trade Practices Act, nor is it necessary to consider whether what was actually said in the contract had the effect alleged in paragraph 6A of the defence, or whether the effect of paragraph 7(a) of the reply is that that issue is not open.
- [46]In my opinion the situation here is that any liability of the first defendant depends on the plaintiff’s being able to show that there was something wrong with the design or construction of the building itself. For practical purposes, that depends on whether having a wooden floor, in the absence of some particular treatment to increase the coefficient of friction if it was wet, was negligent. I am not persuaded that the use of a wooden floor, finished in the way that this floor was, was negligence in itself; views may differ as to the desirability of a wooden floor for the purposes of exercise classes, but I am not persuaded on the evidence that I have heard that the plaintiff has shown that it was unreasonable to install a wooden floor in a room for use for exercise classes, even if there was no special treatment applied to the floor to improve its coefficient of friction if there happened to be droplets of perspiration on the floor.
- [47]I acknowledge that there are features of a wooden floor which are particularly attractive from a point of view of an exercise centre, in terms of aesthetics and in terms of the ability to keep the floor clean. There is also the consideration that it is not every use of such a floor for exercise classes which is going to pose a particular risk of injury to the participants. The problem here was a combination of a wooden floor which became slippery when wet with a vigorous exercise class which included manoeuvres imposing substantial lateral forces when feet hit the floor, and an absence of precautions against contamination of the floor with droplets of perspiration. Accordingly, I do not consider that there was any negligence on the part of the first defendant, and the action against it is dismissed. There will, however, be judgment for the plaintiff against the second defendant.
Quantum
- [48]The plaintiff, who is now 33 years of age, was at the time of the accident in full-time employment with the Commonwealth Bank, where she had worked for 12 years: p 9, p 10. Her health was good, though she would get some back pain from time to time from a scoliosis: p 11. At the time of the accident she had no children; she has since given birth to two sons, one shortly before the trial, and she was then still on maternity leave: p 9. She plans to return to part-time work around March 2012; the intention to work only part time at that stage is related to her family responsibilities rather than the injury: p 38. She will be able to return to the Commonwealth Bank, assuming that there is work available that she will be able to do at that time.
- [49]After the fall the plaintiff was on the floor in considerable pain: p 20. An ambulance was called and arrived eventually and took her to hospital, where she underwent surgery but still experienced a lot of pain. She was subsequently discharged with her foot in a back slab, and then in a boot for eight weeks, during which time she was mobile only on crutches. Ten weeks after the accident she returned to part-time work, and returned to full-time work after a further two weeks, though she was still suffering problems with the foot at that stage. The plaintiff took sick leave during the period when she was off work, and it was accepted that she has suffered no economic loss in the past as a result of the injury: p 4.
- [50]The plaintiff found that even after she had recovered as much as she has, there were still some things that she had difficulty with at work, particularly anything which involves significant lifting or walking any distance: p 23. There was pain and stiffness when she was walking, and this was a distraction for her. It has also adversely affected her home life and her ability to cope with housework and looking after her children. She said that her foot did not feel the same as it used to feel; stability and balance were different, there was less movement and less flexion: p 25. There was difficulty carrying groceries upstairs, or walking on sloping surfaces or uneven ground, which caused pain. She takes Panadol and Nurofen from time to time, and takes perhaps two extra packets of medication a year because of this condition: p 26. She gets some physiotherapy from time to time: p 37.
- [51]The plaintiff was seen by an orthopaedic surgeon, Dr Gillett, on 28 August 2006 for the purposes of a report: Exhibit 7. At that stage he noted that the plates were tender to touch and hurt her if they were bumped, as well as the symptoms referred to earlier. She limped if walking for about half an hour, and the ankle would swell. Sleep was affected at times. She could not run properly and avoided high-heeled shoes. She was no longer able to exercise in the way she did before the incident. On examination there was some swelling in the left ankle, and global weakness of some movements, which were said to be one grade on the MRC scale. There was diminished hopping ability on the left side. There was a mild loss of motion in dorsi‑flexion but other movements were within normal range. X‑rays revealed a spiral fraction involving the distal tibia with a posterior malleolar fracture and a fracture of the lateral malleolar. A more recent x‑ray showed the fractures had united after treatment and there was no evidence of osteoarthritis.
- [52]Dr Gillett thought that her condition had received maximum medical improvement, though she required removal of the internal fixation devices which would cost approximately $3,000 and a convalescent period of two weeks. He expected the symptoms to continue apart from those specifically associated with the plate and screws but he did not expect degenerative arthritis. She would be able to remain working in sedentary work. He assessed her as having a Class 1 impairment from scarring measured at 2% of whole person function and a 7% impairment of lower limb function, which equated to a 3% loss of whole person function in accordance with the AMA scale. She also had a 1% impairment of whole person for residual pain. The practical effect of Dr Gillett’s opinion is that apart from some improvement in the symptoms associated specifically with the plate and screws which would be effected by their removal, the plaintiff’s symptoms are likely to be permanent, but are unlikely to worsen significantly.
- [53]It was agreed between the parties that general damages would be assessed at $11,000 on the basis of an ISV of 10. Special damages in the form of refunds are agreed at $10,297.12, and special damages in the form of out of pocket expenses are agreed at $2,687.08. An interest rate of 3% is agreed on the out of pocket expenses for the period from the day of the accident, which is now five years. There is no past economic loss. It was submitted that the plaintiff should be awarded future economic loss on the basis that her ability to work has been limited as a result of being left with a painful ankle, the sort of work that she could do for the Commonwealth Bank has been restricted to some extent, and she will be at risk in the labour market.
- [54]The position seems to be that she is not guaranteed a place if she returns to the bank, but they will give her preference as a former employee if there is work that she can do that is available.[36] There is the further constraint that she will be seeking part-time work, which will limit somewhat the roles that she can fulfil with the bank. If she is unable to obtain suitable employment within her capacity at the bank, it is I think reasonable enough to expect that her ability to obtain employment in the open labour market will also be impaired. In view of her age the plaintiff probably has about 25 years employment ahead of her. At the time of the accident she was working full time and had a net income in the order of $675 per week: Exhibit 3.[37]
- [55]It is impossible to know just what difficulties the plaintiff will encounter in the future when she attempts to return to work. Her desire initially at least to work only part time is not related to the injury, but to her family responsibilities, but it is reasonable for her to seek to limit her working hours for that reason and that may well impact on her earning capacity if it is more difficult to obtain suitable part-time work rather than suitable full-time work. From her evidence, that is likely to be the case with her existing employer. In view of the lengthy relationship with the bank, it is likely that she will be dealt with more sympathetically there than elsewhere, but it is unknown at the present time whether she will be able to obtain part-time employment with the bank in a position with which she can cope when she wishes to do so.
- [56]It may be a matter of waiting until a suitable position comes up, or it may be a matter of trying to find alternative employment elsewhere, at least until her family is old enough so that she is interested in full-time work again. She gave no evidence about when that might occur, and I would not expect someone in her position to know. On the other hand, it is commonplace that women do return to full-time work sooner or later when they find family responsibilities less pressing, so it is likely that that will occur for her at some stage. It is certainly not possible to calculate any future economic loss, but I am satisfied on the balance of probabilities that she will suffer such loss, as a result of the persistence of the symptoms in her ankle. Assessment of the loss needs to be made taking into account the various possibilities, both favourable and unfavourable.
- [57]At one extreme, she may find that she is able to return to work at the bank when she wants to do so in a position which is within her capacity, and in time be able to move into full-time employment which would be much the same as she would have been doing anyway. At the other extreme, she may be unable to obtain suitable part-time employment with the bank, and may have difficulty in obtaining it elsewhere, and may have lost her contacts with the bank by the time she is interested in returning to full-time employment. If that were to occur, her future economic loss would be quite substantial. On the whole, however, I do not think that there is a large risk of things turning out as bad as that, and although that possibility should not be disregarded it is likely that things will be better for her than that, and there is a reasonable possibility that there will be much less or no future economic loss. Doing the best I can with the various possibilities, I will allow a global sum of $50,000.[38] In addition, an allowance of $4,500 should be made for the loss of future superannuation contributions.
- [58]An allowance should also be made for the cost of future medical expenses in the form of surgery to remove the plate and screws, and future medication. In respect of these matters, the plaintiff accepted the correctness of the defendants’ calculations of $3,300, so I will award that figure.
- [59]Accordingly, the assessment of damages may be summarised as follows:
| General damages | $11,000.00 |
| Special damages – refunds | $10,297.12 |
| Special damages – out of pocket | $2,687.08 |
| Interest on out of pocket special damages | $553.06 |
| Future economic loss | $50,000.00 |
| Future superannuation contributions | $4,500.00 |
| Future expenses | $3,300.00 |
TOTAL | $82,337.26 | |
- [60]There will therefore be judgment that the second defendant pay the plaintiff $82,337.26. I will hear submissions as to costs when these reasons are published.
Footnotes
[1] Plaintiff pp 18-19. She attended about three times a week (p 16) and had performed this exercise programme before: p 17. See also Yates p 91.
[2] Yates p 89; MrNiece p 80.
[3] Yates pp 90-1 (track 9 out of 12).
[4] Plaintiff p 19; M. Kovacevic p 43; Yates p 91.
[5] Grigg p 24; O'Sullivan p 62.
[6] Plaintiff p 20.
[7] Although the plaintiff thought her left foot had also slipped (p 30), I suspect that this did not occur, for the reasons given by Dr Grigg.
[8] Yates pp 98-99.
[9] M. Kovacevic p 44.
[10] The medical evidence was that the injury the plaintiff sustained, a twisting injury (p 54), was consistent with this mechanism of injury: Gillett p 56.
[11] McNiece p 77; Guntner pp 10-11 – it was a polyurethane coating. There was no evidence of any particular slip‑resistant qualities.
[12] McNiece p 78; that it was sprung may have been helpful for safety in other respects but was irrelevant to slip resistance.
[13] Exhibit 1 p 5.
[14] Exhibit 1 p 5; This is the equivalent of a coefficient of friction of .17 or .18: Exhibit 1 p 11; Grigg p 26.
[15] Grigg p 25.
[16] Exhibit 9 p 7; Grigg p 16.
[17] Grigg p 17 line 30, p 18.
[18] Any contamination by liquid would be likely to reduce the coefficient of friction to some extent Grigg p 27. See also his significant concession at p 22 line 15.
[19] M. Kovacevic p 45; the plaintiff also noticed droplets on the floor after her fall: p 20.
[20] McNiece p 82; Yates p 93.
[21] McNiece p 82; Yates would not accept this: p 94.
[22] It may be that the perspiration on the vital spot was not an essential part of the fall; if in fact the floor was dry, or dry enough, that the fall happened simply means that the dry coefficient of friction of the floor was inadequate to accommodate a person performing that particular exercise as vigorously as was the plaintiff. But I think that unlikely, otherwise such falls would be more common.
[23] McNiece p 77; Guntner p 9.
[24] McNiece was not aware of another accident like this: p 81.
[25] Exhibit 11 p 5.
[26] Notwithstanding that the plaintiff had no particular recollection of such a thing having happened; there was no reason why she should have recalled something of this nature that happened to the instructor at the beginning of the class.
[27] Or give any warning: Exhibit 11 p 5. She did encourage people to wipe up sweat after this incident: p 107; M. Kovacevic p 46.
[28] The instructor was unable to explain, to someone who is unfamiliar with the interior of a gymnasium, just what these mats were like, but presumably they would soak up or disperse any perspiration that was on the floor when covered by the mat.
[29] Exhibit 11 p 5.
[30] M. Kovacevic p 47; McNiece p 79 (who described it as refrigeration).
[31] Pursuant to s 68 of the Act: statement of claim para 10J.
[32] Defence para 6C.
[33] Exhibit 4 referred expressly in one waiver clause to the maintenance of a professional and safe environment.
[34] See para [62].
[35] Yates p 92; McNiece p 82 esp. line 40.
[36] Plaintiff p 23, p 37.
[37] It rose to about $950 net per week before she went on maternity leave: Exhibit 3.
[38] That is less than one year’s net income in her last full year at work: Exhibit 3. I note my analysis in Cook v Bowen [2007] QDC 108; there have been few decisions since then.