source : the age
A Supreme Court judge has dismissed complaints from an Osborne Park private hospital that a gym operating above its premises is too noisy and impacts their medical procedures, leaving the hospital facing a hefty bill for legal costs and compensation for the gym’s loss of business.
Perth Day Hospital filed a statement of claim in the Supreme Court of WA against Fitness Cartel in June, alleging that, since the gym opened last November, it had caused excessive noise both from the sound of music and dropped weights, which reverberated through the hospital’s ceiling.
The businesses share a building at 454 Scarborough Beach Road, with the fitness centre located above the hospital.
Perth Day Hospital, which had seen a $16 million fit-out, was granted an urgent injunction against the gym ahead of the hospital’s planned opening on June 2, limiting the gym’s activities between 6.30am and 8pm to low music and prohibiting the use of weights including medicine balls and kettlebells.
The gym originally argued against the injunction, saying it had lost $15,000 due to the restrictions as well as the confidence of its members. However, the judge upheld the restrictions until the outcome of a trial examining the issue.
As part of that trial, Supreme Court Justice Michael Lundberg visited the site where the gym and hospital operated.
Perth Day Hospital claimed it experienced repeated “vibrations” immediately above or near treatment areas “caused by heavier weights being dropped”.
The hospital offers endoscopy and pain management procedures that involve “the insertion of needles into the spine or nerves of patients”.
Fitness Cartel describes itself as “a complete health and wellness destination” that includes a functional training zone and Hyrox studio.
It opened its doors in November and complaints about the noise began soon after.
They tried to settle the matter with the gym owners by emailing them regarding the constant vibration, which they claimed was “unacceptable” and impacting their business.
They also employed a “vibration expert” to compile a report on the impact of the noise.
At the trial, Perth Day Hospital’s lawyer Martin Bennett said the worst case of recorded weight-dropping from the gym exceeded noise regulations by between 5 and 15 decibels.
“The vibrations were as such that cardboard office files fell from the desk, an electronic clock fixture fell from the ceiling … it’s not a case of undue sensitivity,” Bennett said.
Bennett argued the gym’s use of the building was not “ordinary and common”, and there were no other gyms in similar positions anywhere around the Scarborough Beach Road location.
However, defence lawyer Simon Davis argued the hospital should never have moved into the building in the first place, and the gym was more likely to be located at the strata than the hospital.
“For a building that has had many gyms in it in the past to the point where it used to be a sports centre… and used to have gyms until about 10 or 12 years ago now, [having a gym] is a common and ordinary use of the land,” he said.
“Clearly it is inappropriate to put a hospital that specialises in those procedures and only those procedures into that building in the first place.”
Both parties will return to court later this month to discuss whether there will be an inquiry in regards to the costs to be paid.
