On 3 October 2023, the NSW Supreme Court of Appeal delivered its judgment in the matter of Karaoglu v Fitness First Australia Pty Ltd  NSWCA 229. This appeal arose out of a negligence claim brought by the plaintiff for alleged injuries sustained whilst using a gym machine.
On 25 June 2015, Deniz Karaoglu (‘the appellant’) was training at a gym in Auburn owned and operated by Fitness First Australia Pty Ltd (‘the respondent’). The appellant was using a Technogym 45-degree incline leg press loaded with 240kg. After completing a set of repetitions on the leg press, the appellant stood up – at which point the footplate on the press collided with his head knocking him unconscious.
The appellant alleged that he had suffered significant injuries (including a conversion disorder) resulting from the incident. The appellant brought a claim in negligence against the respondent, alleging that it had breached its duty of care to him by way of a failure to maintain or install safety features on the leg press, as well as a failure to instruct and warn users on how to safely use the machine.
The appellant sought $2.7 million in damages.
At first instance, the primary judge rejected the plaintiff’s claim, finding that:
On 23 March 2023, the plaintiff filed a Notice of Appeal to the first instance judgment on three grounds:
On appeal, the Court of Appeal dismissed all three grounds.
The Court of Appeal considered the views of two experts who had been instructed to provide an opinion on the safety and operation of the leg press. Both experts opined that there was insufficient evidence that the leg press used by the appellant on the day of the subject incident had, or ought to have had, a spring.
Additionally, the Court gave no weight to the evidence of one of the respondent’s employees who had testified that there was a spring on the subject leg press, as the Court found that he had been shown pictures of a leg press that were different to the machine used by the appellant on the day of the incident.
Ultimately, the Court found that there was no evidence the leg press was defective as alleged, and the first ground of appeal was rejected.
The Court held that the primary judge had correctly found that the pictogram on the leg press was inadequate to convey the necessary information for the safe operation of the leg press.
However, the Court held that the appellant’s evidence about his experience and knowledge of the machine demonstrated that he was indeed aware of how to operate the machinery safely, as well as the steps required to ensure the weight bars were properly supported.
The Court found that on the balance of probabilities, a warning would not have prevented the incident from occurring – nor would it have caused the appellant to act any differently in his operation of the machine.
The Court of Appeal also rejected the appellant’s contention that he was suffering ongoing injuries from the subject incident, including a conversion disorder.
The Court held that the primary judge had not erred in accepting the respondent’s expert medical evidence that the appellant’s lumbar spine symptoms were not caused by the incident and, additionally, that the appellant’s alleged incontinence was not proximal to the incident.
The Court also agreed with the primary judge’s characterisation of the appellant as not being a witness of truth – and also accepted that the appellant was most likely feigning the alleged conversion disorder.
The decision in Karaoglu v Fitness First Australia Pty Ltd  NSWCA 229 provides assurance for insurers and defendants alike on the accepted law that a failure to warn of a certain risk can be defended when the risk that materialised was an obvious risk, even if it was not obvious to the person who was injured, but would have been obvious to an ordinary person in the same position of the plaintiff.
The decision also serves as a stark reminder to gym-goers regarding the need to take care to prevent a risk of injury that may arise from improper use of gym equipment.
Furthermore, the judgment reinforces the need for plaintiffs to provide a truthful, accurate and contemporaneous history of factual circumstances and alleged injuries arising from the alleged cause of action.
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with Peter Miller, Principal and leader of McCabes Insurance Division.
Pursuant to section 131 of the Motor Accidents Compensation Act (NSW), a Claimant is only entitled to damages for non-economic loss where the permanent impairment is greater than 10% and results from an injury caused by a motor vehicle accident.
Income passing to children under 18 years of age will have penalty rates of tax applied, unless the income is "excepted trust income" (and therefore taxed at normal (adult) tax rates). For this purpose, 'children under 18 years of age' means if they are less than 18 years of age on the last day of the year of income.