Tremdada v Energize Fitness
Hulme J Supreme Court of NSW 7 October 2011
The plaintiff was injured using gym equipment.
The gym operators were sued. They are insured. They had acquired the machine fourth hand. It was 10 years old at the time of the accident. The gym equipment involved in the accident was connected with Calgym. There were at the time of the accident numerous entities which included that name. Some of them had common directors but each of them was a divisible and separate corporation.
Having made enquiries, the insurers for the gym operators cross claimed against Calgym Manufacturing.
In February 2011, the insurers for the gym operators filed a further cross claim against Calgym Equipment. The insurers for the gym operator bore the onus of proving which Calgym company was the appropriate entity for the purposes of recovery.
Vero conceded that it was the public liability insurer of Calgym Manufacturing but not Calgym Equipment.
Between the two cross claims both Calgym companies were deregistered.The insurers for the gym operators filed a Motion for leave to proceed against Vero direct.
Vero opposed its joinder as insurer of Calgym Manufacturing on the basis that its insured could not be liable. It opposed the application involving Calgym Equipment as it was not the insurer in any event.
Chronology
1992 Incorporation of Calgym Equipment (not insured with Vero).
1996 (approx) Probable date of manufacture
1998 Incorporation of Calgym Manufacturing (insured with Vero).
1999 Purchase by the gym operator (fourth hand).
2000 Calgym Manufacturing commenced trading.
2006 Plaintiff’s accident
2009 Cross claim against Calgym Manufacturing.
2010 Calgym companies deregistered.
2011 Cross claim against Calgym Equipment.
Result
On the evidence, Vero only insured Calgym Manufacturing. As its trading operations only commenced in June 2000 there was no likelihood of its being liable. The joinder of Vero as its insurer was therefore refused.
Vero was not the insurer of Calgym Equipment, at all. The joinder of Vero was therefore refused.
Comments
Unless there is an appeal or an application based on new evidence, the gym operators will be unable to transfer any of their potential legal liability to the plaintiff.
There are of course likely to be a myriad of potential responses by the gym operators to the plaintiff’s claim and that they will have no one to obtain contribution from will not be fatal to any of those potential defences.
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