PROBLEM QUESTION Big Muscle Gyms Pty Ltd (BMG) is a gym in Kensington, NSW. The gym has a weights room which includes a training area, a stretching area, weights machines, free weights area, squat racks, and dumbbell and barbell weights. The gym also has a cardio room that includes treadmills, bikes, elliptical trainers, and rowers. While the gym is open, there are usually six staff members on site: a staff member at the entrance who greets members, two staff members that supervise the exercise rooms, a personal trainer, a staff member that cleans and tidies the facilities, and a manager. Many of BMG's members come before work hours and attend the gym between 6.00am-9.00am on Monday to Friday. BMG has had an ongoing issue with members who train during this time not putting their weights back on the weight racks when they are done with them. It is common for one person to use a set of weights and then leave the weights on the floor for the next person to use. BMG's staff members that supervise the exercise rooms and clean and tidy the facilities are instructed to put weights back on the racks if they ever see them left on the floor and to remind members to put their weights back when they're done. In addition, the staff members are reminded each morning to ensure that the weights room is tidied up as soon as the morning rush is over. To encourage members to put their weights back, BMG has put signs around the gym which state: "Please return your weights to the racks when you are done with them. Thank you for your assistance." BMG also has safety signs throughout the gym which state: "If you need any assistance moving weights, please contact a member of our staff and they will move the weights for you. DO NOT attempt to move any weights which you are not able to lift yourself. Stay safe." Michael Tam was a member of BMG at regularly trained at the gym. Michael was 30 and was fit as he would either go running or do exercises at the gym at least four times a week. Michael was training at BMG at 9.15am on a Tuesday. In order to do a certain exercise, Michael needed to move a 30kg weight that was laying on the ground and in his way. This weight had been left on the ground by another member during the morning rush. Michael struggled to pick up the weight as it was laying awkwardly on the ground and was very heavy. As Michael picked up the weight and carried it to the rack, he felt a severe pain in his lower back. At the time Michael was injured, two of BMG's staff were in the weights room putting away, and tidying up weights and equipment that other members had left on the floor. However, they had only started tidying up the weights room at 9.10am after the morning rush had ended. Initially Michael thought that he had simply strained his back, so he continued to complete his exercises. However, over the ensuing weeks, Michael realised that the injury was of a greater extent than he initially thought. After a visit to a doctor, and then to a back specialist, Michael learnt that he had a disc protrusion that required multiple surgical treatments. Advise BMG whether it may be liable in negligence to Michael Tam. In your answer, ensure that you consider duty of care, breach of duty, causation, scope of liability, and defences.

There are two recent cases which are similar to BMG's situation which may be relevant to consider when providing your advice to BMG: Powell v JFIT Holdings Pty Ltd t/as New Dimensions Health and Fitness Centre [2020] NSWDC 264: https://www.caselaw.nsw.gov.au/decision/172775aebcc4cd0f4f616b74 JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell [2021] NSWCA 137: https://www.caselaw.nsw.gov.au/decision/17a792cc34d12f09b2aeafa4 Both cases refer to the same situation. The first case is the initial judgement of the case and is a decision of the District Court of NSW. After the judgement, JFIT appealed the decision. The second case is the appeal judgement and is a decision of the Court of Appeal of NSW. These cases are similar cases to consider for the purposes of preparing your answer. These cases should not be used as your answer and the fact that an element of negligence was established in one of these cases does not mean that you can presume it is established for the purposes of preparing your answer. In preparing your answer, you must still go through each element of negligence to answer the question which you have been given. You should avoid quoting or extracting large parts of the cases. You should consider any differences or similarities between the above scenario and these cases.