Deceased
Jesse Drabsch
Demographics
31y, male
Coroner
Decision ofDeputy State Coroner Grahame
Date of death
2017-11-21
Finding date
2021-10-29
Cause of death
Hypoxic brain injury caused by the exogenous administration of insulin, resulting from self-administered insulin injection leading to severe hypoglycaemia and extended hypoxia while incapacitated in a locked bathroom
AI-generated summary
Jesse Drabsch, 31, died from hypoglycaemia after self-injecting insulin in a gym bathroom. A competitive bodybuilder using performance and image enhancing drugs (PIEDs), Jesse entered the bathroom at 5:30pm on 16 November 2017 and collapsed rapidly. He remained undiscovered for 20 hours despite staff and cleaners passing nearby multiple times. Critical failures included: no system monitoring extended bathroom occupancy, inadequate bathroom welfare checks, no staff training on response procedures, and the franchisee manager's decision to wait for police rather than immediately opening the locked door. Medical evidence indicates discovery within 3-6 hours of insulin injection may have prevented irreversible brain damage. The case highlighted systematic gaps in gym safety protocols, inadequate resources for PIED users seeking medical advice, and lack of health professional training in managing non-prescribed insulin and other PIEDs use.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Specialties
Error types
Drugs involved
CORONERS COURT OF NEW SOUTH WALES Inquest: Inquest into the death of Jesse Drabsch Hearing dates: 19-23 April 2021, 17-18 June 2021 Date of findings: 29 October 2021 Place of findings: Coroners Court, Lidcombe Findings of: Magistrate Harriet Grahame, Deputy State Coroner Catchwords: CORONIAL LAW – accidental death after use of insulin, Performance and Image Enhancing drugs (PIEDs), Insulin, death in 24 hour gym File Number: 2017/353545 Representation: Counsel assisting: Ms L Coleman instructed by Ms L Nash of Crown Solicitor’s Office Anytime Australia: Mr S Beckett instructed by Ms E Petrie of Moray and Agnew ATGPPMS, Paul Hrobat, Holly Thiessen and Joshua Allen: Mr D Mitchell instructed by Mr L Vincent of Wotton + Kearney The Cleaning Staff: Ms C Palmer of counsel
Non publication orders The court made specific non-publication orders Non: pursuant to ss. 65 and 74 of the Coroners Act 2009 (NSW). The orders relate to names, addresses and contact details of witnesses in the proceedings as well as information that is commercially sensitive for Anytime Australia Pty Ltd. The orders are available through the Court Registry.
Recommendations To Anytime Australia Bathrooms
That Anytime Australia implement the Trial Policy on a permanent basis at all existing and future Anytime Fitness gyms in Australia.
That Anytime Australia direct its franchisees to undertake a documented internal audit of the bathroom log sheets every three months so as to assess compliance with the requirement in the Trial Policy for regular, documented bathroom checks.
That Anytime Australia direct its franchisees to provide training to all new and existing staff and external cleaners at Anytime Fitness centres which includes: a. a summary of the requirement for regular, documented bathroom checks as embodied within the Trial Policy; b. a description of the procedure to be followed in the event that a bathroom door is locked and the occupant of the bathroom is non-responsive or requires medical attention; and c. training in how to unlock a locked
bathroom door from the outside, including ensuring that all staff and cleaners are shown the location of any requisite tools for carrying out that task
That Anytime Australia undertake an immediate costing regarding any technological measures that would assist in detecting an incapacitated person inside the bathrooms at existing and future Anytime Fitness centres, and give documented consideration to prompt installation of those measures, including an upgrade to the main door entry system to record the time that members exit the facility and to notify staff if a member is at the facility for an extended period.
That Anytime Australia give immediate, documented consideration to measures for improving the design of the bathroom doors at existing and/or future Anytime Fitness centres to provide visibility of a potential collapse inside the bathroom, whilst preserving the privacy of occupants of the bathrooms, including by: a. creating a narrow gap between the bottom of the bathroom doors and the floor; and b. installing a narrow glass or Perspex panel between the bottom of the bathroom doors and the floor, in a manner that complies with any relevant requirement of the BCA.
That Anytime Australia send a written reminder notification to all franchisees
detailing the requirement to log a contemporaneous Anytime Safety incident report in respect of any safety or medical incidents (including those involving patrons inside bathrooms), and that Anytime Australia conduct a regular audit of any such incidents.
PIEDs
That Anytime Australia consider liaising with the NSW Ministry of Health, Fitness Australia, Dr Beng Eu, Dr Katinka van de Ven, Kay Stanton and any other appropriate stakeholders with a view to considering: a. the actual or suspected use of PIEDs by those who attend Anytime Fitness gyms; b. what, if any, measures could be introduced at Anytime Fitness centres (including through digital means such as blogs and social media) to improve awareness of the health risks associated with PIEDs; and c. what, if any, harm reduction measures or strategies could be implemented at Anytime Fitness centres (including through digital means such as blogs and social media) for those who use PIEDs
That Anytime Australia give immediate, documented consideration to the delivery of educational campaigns or sessions to Anytime Fitness franchisees regarding PIEDs use, including by way of recorded online webinars and/or presentations at
annual conferences of Anytime Australia.
To the NSW Minister for Health
That the NSW Ministry of Health give immediate, documented consideration to: a. adopting or endorsing the Sydney North Health Network’s “GP guide to harm minimisation for patients using nonprescribed anabolic-androgenic steroids (AAS) and other performance and image enhancing drugs (PIEDs)”, including on Your Room and/or the NSW Ministry of Health website for alcohol and other drug health professionals; and b. any additional steps that can be taken to educate general practitioners regarding the identification, management and treatment of individuals who use or are suspected of using PIEDs.
That the NSW Ministry of Health consider the preparation and distribution of a dedicated online Fact Sheet regarding the health risks of using non-prescribed insulin.
That the NSW Ministry of Health consider liaising with Anytime Australia, Fitness Australia, Dr Beng Eu, Dr Katinka van de Ven, Kay Stanton and any other appropriate stakeholders with a view to considering: a. the nature and prevalence of PIEDs use; b. what, if any, additional education, information or resources could be disseminated in NSW to improve public awareness of the health risks
associated with PIEDs, including at gyms, at fitness centres and online; c. what, if any, harm reduction measures or initiatives could be implemented (including at gyms and fitness centres) for those who use PIEDs.
Table of Contents
Introduction
This inquest concerns the tragic death of Jesse Drabsch. Jesse was 31 years of age at the time of his death. He worked as a personal trainer and was passionate about body building and fitness training.
Jesse attended Anytime Fitness Castle Hill at approximately 2:45pm on 16 November 2017 and worked out for some hours. Jesse spoke to his mother, Debbie, from the gym early on the evening of 16 November 2017. The following morning she realised that Jesse had not returned home. This was entirely out of character and she became concerned.
Debbie immediately commenced making inquiries and tried to locate her son.
Just after 2:00pm on 17 November 2017, Jesse was found unconscious, but breathing, in a bathroom at Anytime Fitness, Castle Hill. A review of the Closed Circuit Television (CCTV) footage revealed that Jesse entered the bathroom on 16 November 2017 at approximately 5:30pm. Jesse remained in the bathroom for over 20 hours until he was discovered by NSW Police.
Paramedics arrived soon after police and Jesse was taken by helicopter to Westmead Hospital where he was sedated and ventilated. Tragically his very serious brain injury was incompatible with recovery. Jesse died on 21 November 2017.
Jesse was a much loved brother to Eryne, Zenta and Jordaan, and was adored by his mother Debbie. He was described as a shy, gentle soul, who was dedicated to his work.
Although initially training as a carpenter, he later pursued a career in personal training. It is clear from the evidence before the court that his clients shared a deep affection for him.
He was dedicated to his own training as well as to the training of others, helping his clients to reach their potential. His friend described him as “just a genuine guy who was just trying to better himself really, above all things”.
The role of the coroner and the scope of the inquest
concerning the manner and cause of the person’s death.1 A coroner may also make recommendations, arising from the evidence, in relation to matters that have the capacity to improve public health and safety in the future.2
In this case there was no dispute in relation to the identity of the deceased or the date or place of death. However, the medical cause of death and the manner or circumstances of Jesse’s death required significant investigation.
As part of these investigations, the court examined the safety systems in place at Anytime Fitness Castle Hill at the time of Jesse’s death. Counsel for Anytime Australia, the franchisor of the Anytime Fitness brand in Australia, cautioned the court against “engaging in hindsight bias” when considering such safety systems. However, in circumstances where a person has died as a result of becoming incapacitated in an Anytime Fitness bathroom without being found for some 20 hours, a concern for hindsight bias is misplaced. The tragic circumstances leading to Jesse’s death necessitated a careful examination of the safety systems in place at Anytime Fitness gyms at that time, with the aim of understanding whether there were missed opportunities to find Jesse much earlier.
These considerations are also critical in evaluating whether any measures could or should be implemented to ensure such a tragedy is not repeated in the future.
The evidence
2 Section 82 Coroners Act 2009 (NSW).
Fitness. The court heard expert evidence from a senior endocrinologist and from a variety of witnesses with specific expertise in the use of PIEDs.
While I am unable to refer specifically to all the available material in detail in my reasons, it has been comprehensively reviewed and assessed.
A list of issues was prepared before the proceedings commenced.3 These questions directed the focus of the evidence presented in court. However, as is often the case, a hearing tends to crystallise the issues which are really at stake. The focus of the inquest centred on understanding the safety systems in place at the time of Jesse’s death and whether there are ways of preventing future tragedies of this sort.
Fact finding and chronology
Background to the events leading to Jesse’s death
What reasons led to Jesse remaining undetected and incapacitated in a public bathroom at Anytime Fitness Castle Hill for approximately 20 hours?
What improvement measures have been implemented by Anytime Australia Pty Ltd (Anytime Australia) and / or Anytime Fitness Castle Hill in response to Jesse’s death?
Should consideration be given by Anytime Australia to the implementation of measures to improve the safety of patrons at Anytime Fitness gyms, including with respect to: i. the design of the bathroom doors; ii. systems for recording which bathrooms have been inspected and cleaned, and when; and iii. notification or escalation procedures if a bathroom door is locked and the bathroom cannot be inspected or cleaned for a particular period of time;
Should consideration be given by Anytime Australia and its franchisees to the implementation of measures at Anytime Fitness centres to improve awareness of the risks associated with performance and image enhancing drugs (PIEDs) and safe practices regarding the administration or use of PIEDs?
During the course of the police examination of Anytime Fitness Castle Hill and items belonging to Jesse on or around 17 November 2017, was relevant evidence secured appropriately?
Are sufficient educational material, support services and/or harm minimisation strategies available for PIEDs users in New South Wales?
Is there adequate training and support for health professionals in New South Wales in identifying, managing and treating those who use or are suspected of using PIEDs
Are further recommendations from the Coroner necessary or desirable pursuant to s 82 of the Act?
4 Ex 1 Vol 1, Tab 19A at [6].
5 Ex 1 Vol 1, Tab 19A at [7].
competition which was organised by the International Federation of Body Building.6
Anytime Australia is the franchisor in Australia of the Anytime Fitness brand.7 As at April 2021 there were 520 Anytime Fitness centres around Australia, each of which is independently owned and operated.8 Anytime Fitness Castle Hill operates pursuant to a Franchise Agreement between Anytime Australia and ATGPPMS Pty Ltd (ATGPPMS).9 ATGPPMS has held the franchise rights to Anytime Fitness Castle Hill since 2010, and operates a total of 14 Anytime Fitness centres in NSW.10 Paul Hrobat is (and was as at November 2017) the director of ATGPPMS and the Managing Director of Anytime Fitness Castle Hill.11
Anytime Fitness Castle Hill (as with all Anytime Fitness centres)12 was as at November 2017 open to members 24 hours a day, 7 days a week.13 All Anytime Fitness centres are unstaffed for a period of time during the night, with those unstaffed hours varying from club to club.14 Anytime Fitness Castle Hill was then, and remains now, staffed on Monday to Thursday from 10am to 8pm, on Friday from 10am to 7pm, and on Saturday from 10am to 2pm (with no staff on Sundays).15
Anytime Australia is also a member of Fitness Australia, and thereby subject to the National Fitness Industry Code of Practice.16 Richard Peil is the current Managing Director of Anytime Australia and its overarching parent, Collective Wellness Group. He has held this position since May 2012.17 He is also one of the co-founders of Anytime Fitness in Australia18 and currently holds the franchise rights to five Anytime Fitness centres.19 Jordan Smith is the Company Secretary of the Collective Wellness Group and the current Chair of the Finance and Risk Committees, roles he has held since January 2020.20
The court was also informed that Anytime Australia is subject to a master franchise agreement with Anytime Fitness LLC in the USA which ensures consistency of the global brand and reciprocal membership rights.
6 Ex 1 Vol 1, Tab 19A at [8]; see also Ex 1 Vol 3, Tab 51 at pp. 1, 4.
7 Ex 1 Vol 2, Tab 33 at [8].
8 Ex 1 Vol 2, Tab 33B at [13].
9 Ex 1 Vol 2, Tab 33 at [25].
10 Mr Hrobat, Transcript 19/4/21, page 40, lines 10 to 20.
11 Mr Hrobat, Transcript 19/4/21, page 39, lines 42 to 49, page 40, lines 1 to 2.
12 Ex 1 Vol 2, Tab 33 at [5].
13 Ex 1 Vol 1, Tab 29 at [4]; Mr Peil, Transcript 21/04/21, page 75, lines 39 to 44.
14 Mr Peil, Transcript 21/04/21, page 75, line 46 to page 76, line 4.
15 Mr Hrobat, Transcript 19/4/21, page 81, line 41 to page 82, line 2.
16 Mr Peil, Transcript 22/04/21, page 23, lines 44 to 49; Ex 1 Vol 2, Tab 33B at p. 35ff (Code of Practice); Mr Smith, Transcript 22/04/21, page 58, line 49 to page 59, line 4.
17 Ex 1 Vol 2, Tab 33B at [3].
18 Ex 1 Vol 2, Tab 33B at [2].
19 Mr Peil, Transcript 21/04/21, page 76, line 23.
The events of 16 and 17 November 2017
On Thursday 16 November 2017, two staff members worked at Anytime Fitness Castle Hill: Josh Allen (then a Member Consultant), who worked from about 10:00am to 5:30 or 6:00pm; and Holly Thiessen (then the Club Manager),21 who worked from about 12:00pm to 8:00pm.22 Between 8:00pm on 16 November 2017 and 10:00am on 17 November 2017, the gym was unstaffed.23
On Friday 17 November 2017, Ms Thiessen and Mr Allen again worked at Anytime Fitness Castle Hill. Ms Thiessen commenced her shift at about 10:00am.24 However, she tagged into the gym at approximately 6:00am25 and undertook a training session prior to the commencement of her shift.26 Mr Allen was rostered to commence his shift at 3:00pm.27 They were the only two staff members working at the gym on that date.28
At approximately 2:45pm on 16 November 2017, Jesse tagged in at Anytime Fitness Castle Hill.29 He proceeded to work out in the downstairs “free weights” area of the gym until about 4:40pm and, subsequently, on the cardio step machine upstairs for about 30 minutes. He then stretched for between 5 and 10 minutes before using his mobile telephone for less than 5 minutes.
At around 5:30pm30, Jesse entered the nearest bathroom, closing and locking the door.
He did not appear to be under any distress.
The bathrooms at Anytime Fitness Castle Hill are self-contained, and lockable from the inside only. They contain toilets and showers, and are fitted with “Emergency” buttons which alert security if the button is pressed.31 There are (and were as at November 2017) six bathrooms and several dry change rooms at Anytime Fitness Castle Hill, and each has a door that extends all the way from the floor to the ceiling.32
At 5:34pm, Jesse’s mother Debbie called his mobile telephone and had a conversation with Jesse lasting for about 4 minutes.33 Jesse remained inside the bathroom during that Ex 1 Vol 1, Tab 31B at 2(a)].
22 Ex 1 Vol 1, Tab 29 at [13]-[14]; Tab 31B at [6(a)(i)].
23 Ex 1 Vol 1, Tab 29 at [4].
24 Ex 1 Vol 1, Tab 31B at [9(a)(i)].
25 Ex 1 Vol 1, Tab 29B at p. 20.
26 Ex 1 Vol 1, Tab 31B at [7]; Ms Thiessen, Transcript 21/04/21, page 45, line 33 to page 48, line 5.
27 Ex 1 Vol 1, Tab 31D at [6(a)(i)].
28 Ex 1 Vol 1, Tab 29 at [15].
29 Ex 1 Vol 1, Tab 29B at p. 4.
I note that the CCTV time stamps appear to be approximately 10-15 minutes ahead of local time. This can be confirmed by reference to objective evidence such as telephone call logs. The references to CCTV times should be regarded as approximate for this reason.
Nevertheless the timings are extremely useful for judging how long certain actions took.
31 Ex 1 Vol 1, Tab 19 pp. 115-123; Vol 2, Tab 33D. Mr Hrobat is not aware of any occasions where that emergency button has been used at Anytime Fitness Castle Hill: Mr Hrobat, Transcript 19/4/21, page 90, lines 32 to 34.
32 Ex 1 Vol 1, Tab 19 at p. 120; Vol 2, Tab 33D; Mr Hrobat, Transcript 19/4/21, page 69, line 28 to page 70, line 3; Ms Thiessen, Transcript 21/04/21, page 42, line 25, page 43, lines 1 to 5.
33 Ex 1 Vol 3, Tab 57.
call. According to Debbie, Jesse sounded normal and was fully coherent.34 Debbie asked Jesse whether he was home, but Jesse mumbled in response and did not answer the question.35 Jesse did not sound unwell or unhappy to his mother, and he did not make any complaint of feeling unwell.36
At 5:41pm, Jesse sent a text message from inside the bathroom.37 The contents of that message, and the recipient of that message, are unknown. This is the last time that Jesse is known to have used his mobile telephone. It is also the last time that Jesse is known to have been conscious.
Debbie called Jesse again at 6:22pm (and several times subsequently on 17 November 2017), but he did not answer his phone and Debbie’s calls went through to voicemail.38 Jesse received an MMS on his mobile telephone at 6:37pm, to which he did not respond.39 Nor did Jesse return or acknowledge Debbie’s telephone call from 6:22pm. I accept that this was unusual in the context of their relationship. Debbie told the court that she tried again later in the evening at about 10:00pm, but there was no reply.40 In my view, the evidence establishes that it is most likely that Jesse became incapacitated some time between 5:41pm and approximately 6:22pm on 16 November 2017.
On 17 November 2017 Debbie called Jesse at 6:09am; that call went through to voicemail.41 At 6:27am, Debbie called Castle Hill Police Station and asked a female officer whether Jesse had been in an accident.42 Debbie then attended Anytime Fitness Dural between 6:09am and 8:00am, but there were no staff members around and she could not see Jesse’s car.43 At 6:54am, Debbie called Westmead Hospital to see whether Jesse had been in an accident.44
At 8:39am and 10:19am, Debbie again telephoned Castle Hill Police Station.45 She spoke with Constable Stephanie Brown during one of those calls46 and told her that Jesse was missing, and that it was odd as he was a creature of habit.47 According to Debbie, Constable Brown told her during one of these telephone calls that “nothing could be done”, that he was 31 years old and that Jesse had to be missing for 24 hours.48 34 Ex 1 Vol 1, Tab 19A at [20].
35 Ex 1 Vol 1, Tab 19A at [20].
36 Ex 1 Vol 1, Tab 19A at [20].
37 Ex 1 Vol 3, Tab 57.
38 Ex 1 Vol 1, Tab 19A at [21], [25]; Vol 3, Tab 57.
39 Ex 1 Vol 3, Tab 57.
Ex 1 Vol 1, Tab 19A at [23].
41 Ex 1 Vol 1, Tab 19A at [25]; Vol 3, Tab 57.
42 Ex 1 Vol 3, Tab 57; Vol 1, Tab 19A at [26].
43 Ex 1 Vol 1, Tab 19A at [27].
44 Ex 1 Vol 3, Tab 57; Vol 1, Tab 19A at [27].
45 Ex 1 Vol 3, Tab 57.
46 Ex 1 Vol 1, Tab 19A at [28]; Vol 1, Tab 20 at [5].
47 Ex 1 Vol 1, Tab 19A at [28].
48 Ex 1 Vol 1, Tab 19A at [28].
Constable Brown does not recall making any statement to that effect, and does not believe that is something she said.49 Constable Brown says that it is also clear through her inquiries on that date that it was not the case that nothing could be done.50 The other female on duty at Castle Hill Police Station on 17 November 2017 was General Administrative Support Officer Brooke Scanlan, who does not recall having any conversations with Debbie on that date.51 Ms Scanlan’s shift commenced at 11:00am that day,52 and Debbie did not use her mobile telephone to call Castle Hill Police Station at any time after 11:00am.53
It is difficult now to be certain about exactly what Debbie was told during this call. I accept that she came away with the impression that nothing substantive could be done at that stage. I also accept that NSW Police commenced some inquiries within the first 24 hours.
On 6 April 2021, Superintendent Jason Joyce, Commander of the Hills Police Area Command, sent an email to all staff drawing their attention to the Missing Person Standard Operating Procedures (MP SOPs).54 In that email, he asked staff to ensure that they familiarise themselves with those new MP SOPs and “ensure that all missing person reports are managed in accordance with the SOPs”.55
I am heartened that staff in the Hills Police Area Command have now been reminded of the relevant procedures in this regard and am confident that further education for all frontline police officers has also been undertaken following changes made to the MP SOPs. At the time of Jesse’s collapse, and currently, there is no requirement for a person to be missing for over 24 hours before police can begin an investigation.56 However, over the years there have been common misconceptions about waiting periods in relation to the report of missing persons both within the police force and the general public. It is an issue that has been comprehensively addressed by the new Missing Persons Registry.
At about 10:30am on 17 November 2017, Debbie attended Anytime Fitness Dural and met with the male member in charge.57 She asked him to check where Jesse had tagged into the gym.58 The male staff member told Debbie that Jesse had tagged into Anytime Fitness Dural at about 11:00am on 16 November 2017, and subsequently tagged into 49 Ex 1 Vol 1, Tab 20A at [6]-[7].
50 Ex 1 Vol 1, Tab 20A at [6].
51 Ex 1 Vol 1, Tab 20C at [5].
52 Ex 1 Vol 1, Tab 20C at [4]-[5].
53 Ex 1 Vol 3, Tab 57.
54 Ex 1 Vol 1, Tab 24B.
55 Ex 1 Vol 1, Tab 24B.
56 Ex 1 Vol 1, Tab 24C at [16].
57 Ex 1 Vol 1, Tab 19A at [30].
58 Ex 1 Vol 1, Tab 19A at [30].
Anytime Fitness Castle Hill at about 2:30pm on that date.59 The staff member was unable to identify when Jesse had left the gym because Anytime Fitness does not have any swipe-out facility.60
At 11:49am, Debbie attended Castle Hill Police Station and reported Jesse as missing.61 She spoke with Constable Brown, who took details from Debbie in official Police notebook F632294 in order to put on a missing person’s report.62 After leaving the police station, Debbie telephoned Anytime Fitness Castle Hill at about 12:00 or 12:30pm63 and spoke with Ms Thiessen.64 Debbie asked Ms Thiessen to check the CCTV footage at Anytime Fitness Castle Hill, which Ms Thiessen agreed to do.65 Upon reviewing the CCTV footage, Ms Thiessen discovered that Jesse had entered the bathroom at 5:30pm the previous day and had not exited the bathroom.66
Ms Thiessen proceeded to knock on the bathroom door and the “first thing” she did thereafter was to telephone the club supervisor, Ed Abella, at about 1:00pm.67 Mr Abella, who was based in Pymble, in turn telephoned Mr Hrobat.68 Mr Hrobat got in his car, where he called Ms Thiessen at approximately 1:19pm69 and told her that his executive assistant was on her way to Anytime Fitness Castle Hill.70 Ms Thiessen does not recall what she was doing between the telephone calls with Mr Abella and Mr Hrobat respectively, but said that she was “waiting for direction basically”.71 During the latter call, Mr Hrobat told Ms Thiessen not to break into the bathroom but instead to call the police and wait for them to arrive.72 Mr Hrobat knew that something serious must have happened to Jesse and that Jesse may have been in need of medical attention at that time, but gave evidence that “[Ms Thiessen] was 20 and [Mr Allen] was 19 and I felt it was best that someone from emergency services or a police officer access the bathroom”.73 I understand that Mr Hrobat’s motivation for giving that direction was the well being of his young staff, but it was the wrong advice. The door should have been opened immediately. I am not critical of Ms Thiessen, who acted according to the instructions given to her by her boss. Nevertheless, Anytime Fitness Castle Hill should employ staff that it can confidently rely upon to act in an emergency of this sort.
59 Ex 1 Vol 1, Tab 19A at [30].
60 Ex 1 Vol 1, Tab 19A at [30].
61 Ex 1 Vol 1, Tab 19A at [31]; Vol 1, Tab 20 at [6]-[13].
62 Ex 1 Vol 1, Tab 20 at [10] and Annexures A and B.
63 Ex 3; Ex 1 Vol 1, Tab 29 at [17]; Ms Thiessen, Transcript 21/04/21, page 50, lines 18 to 31.
64 Ex 1 Vol 1, Tab 19A at [32].
65 Ex 1 Vol 1, Tab 19A at [32]; Vol 1 Tab 29 at [17]; Vol 1, Tab 31B at [12(c)].
66 Ex 1 Vol 1, Tab 31B at [9(a)(vi)]; Tab 29 at [18].
67 Ex 3; Ex 1 Vol 1, Tab 31B at [9(a)(viii)]; Ms Thiessen, Transcript 21/04/21, page 71, line 45.
68 Ex 1 Vol 1, Tab 29 at [18]-[19]; Vol 1, Tab 31B at [9(a)(viii)(i)].
69 Ex 3; Ms Thiessen, Transcript 21/04/21, page 65, lines 36 to 38.
70 Ex 1 Vol 1, Tab 29 at [19].
71 Ms Thiessen, Transcript 21/04/21, page 65, lines 43 to 48.
72 Ex 1 Vol 1, Tab 29 at [19]; Ex 3; Mr Hrobat, Transcript 19/4/21, page 100, lines 18 to 20; Ms Thiessen, Transcript 21/04/21, page 53, lines 29 to 30.
73 Mr Hrobat, Transcript 19/4/21, page 100, lines 22 to 44.
All staff at Anytime Fitness Castle Hill are trained in first aid, including the use of the defibrillator on site.74 Ms Thiessen gave evidence that she “[d]efinitely” knew or thought that Jesse might have needed medical assistance, and she knew how to open the door from the outside, but she did not enter the bathroom to render first aid to Jesse because she was instructed by Mr Hrobat not to open the door.75 She also gave evidence that neither Mr Hrobat nor Mr Abella told her to call an ambulance.76 When asked whether it crossed her mind to call an ambulance, Ms Thiessen said that “I didn’t know what the situation was and I was very distressed at the time … to think clearly was difficult”.77 She denied thinking that it was already too late and said she “honestly didn’t know what had happened or what the situation was”.78
Ms Thiessen telephoned Castle Hill Police Station directly at 1:30pm and spoke with Ms Scanlan,79 who created a Concern for Welfare job for police to attend Anytime Fitness Castle Hill.80 Ms Thiessen also telephoned Mr Allen, asking him to come to work early and telling him that she had called the police.81 Ms Thiessen called Castle Hill Police Station, rather than triple-0, because the police station “was so close and I expected them to be able to get there … it was a more direct way to get through to them and have people get there as quick as possible”.82
At approximately 2:05pm, a full hour after Ms Thiessen had realised Jesse was in the bathroom, police gained entry to the locked bathroom at Anytime Fitness Castle Hill and found Jesse lying on his back on the floor, where he was unconscious but breathing sporadically.83 He was frothing at the mouth and had been incontinent.84 He was bleeding from his head and there was also blood around his nose or from his mouth, and light blood spray on the wall in the bottom corner of the bathroom.85 Jesse was wearing a T-shirt, black gym shorts and white shoes,86 and his gym bag was also in the bathroom.87
NSW Ambulance received the call to attend Anytime Fitness Castle Hill at 2:06pm on 17 74 Mr Hrobat, Transcript 19/4/21, page 88, lines 1 to 22; see also Mr Allen, Transcript 21/04/21, page 4, line 46 to page 5, line 20; Ms Thiessen, Transcript 21/04/21, page 29, lines 34 to 50.
75 Ms Thiessen, Transcript 21/04/21, page 51, lines 49 to 50; page 52, lines 1 to 6; page 52, line 42 to page 43, line 2.
76 Ms Thiessen, Transcript 21/04/21, page 53, lines 45 to 47, page 54, line 28, page 67, lines 4 to 16.
77 Ms Thiessen, Transcript 21/04/21, page 54, lines 5-6.
78 Ms Thiessen, Transcript 21/04/21, page 67, line 45 to page 68, line 2.
79 Ex 1 Vol 1, Tab 20 at [14].
80 Ex 1 Vol 1, Tab 20 at [14]; Vol 1, Tab 23.
81 Ex 1 Vol 1, Tab 31B at [9(a)(viii)(iii)]; Mr Allen, Transcript 21/04/21, page 17, lines 16-17.
82 Ms Thiessen, Transcript 21/04/21, page 67, lines 32 to 35.
83 Ex 1 Vol 1, Tab 21 at [5], [7]-[8].
84 Ex 1 Vol 1, Tab 21 at [7].
85 Ex 1 Vol 1, Tab 21 at [7].
86 The first officer on the scene, Sergeant Mammone, said that Jesse was wearing no shirt when he was first discovered: Ex 1 Vol 1, Tab 21 at [7]. However, CCTV footage shows that Jesse was initially wearing a T-shirt which was then cut off by paramedics and/or police while treating him at the scene: Ex 1 Vol 2, Tab 43.
87 Ex 1 Vol 1, Tab 21 at [7].
November 2017.88 The first ambulance crew, consisting of P1 Paramedic Andrew Preece and L1 Paramedic Brett Eichorn, arrived at Anytime Fitness Castle Hill at 2:18pm.89 They assisted police in moving Jesse from the bathroom to the corridor.90 A second crew arrived at 2:22pm, consisting of P1 Paramedic Ross Morrison and Intensive Care Paramedic Virginia Pok.91
Mr Morrison recorded that Jesse had a glucose level of 1.2 (the normal range being between 4 and 8).92 His Glasgow Coma Scale (GCS) level was 3 (the normal level being 15).93 Glucose 10% was administered intravenously, following which Jesse’s sugar levels increased.94 Mr Morrison observed that the blood spray on the wall appeared to have been spat out of Jesse’s mouth, and opined that the blood spray and facial trauma were consistent with Jesse falling and landing on his face.95
At 2:42pm, a CareFlight Doctor and CareFlight Paramedic arrived at the scene.96 The CareFlight Doctor intubated Jesse,97 before he was conveyed to Westmead Hospital at about 3:18pm.98 CareFlight records show that Jesse had a BSL of 4.6 and that his GCS score remained at 3 during transit.99
Jesse arrived at Westmead Hospital at 3:35pm.100 He was sedated with propofol and fentanyl, ventilated and admitted to the Intensive Care Unit under the care of Dr Mann (Toxicology).101
In a progress note dated 19 November 2017 at 1:18pm, Medical Officer Vineet Nayyar recorded that “the trends, EEG and CT result at admission point to significant brain damage from which recovery to normal state will not be possible” and that “[l]ikely cause [was] critically low blood glucose levels, though additional contribution likely from low oxygen levels, dehydration”.102 Dr Nayyar also recorded that:103 “High probability that exogenously administered insulin could have resulted in the initial loss of consciousness – hard to reconstruct the incident because of the passage of time, smudging of the picture as a result of secondary insults.
88 Ex 1 Vol 1, Tab 25 at [5]; Tab 26 at p. 3.
89 Ex 1 Vol 1, Tab 26 at p. 3.
90 Ex 1 Vol 1, Tab 21 at [9]; Tab 22 at [8].
91 Ex 1 Vol 1, Tab 25 at [7]-[8]; Tab 26 at p. 9.
92 Ex 1 Vol 1, Tab 25 at [14].
93 Ibid.
94 Ex 1 Vol 1, Tab 25 at [14].
95 Ex 1 Vol 1, Tab 25 at [13].
96 Ex 1 Tab 1, Tab 27 at pp. 3, 10.
97 Ex 1 Vol 1, Tab 25 at [15].
98 Ex 1 Vol 1, Tab 26 at p. 9.
99 Ex 1 Vol 3, Tab 44 at p. 133.
100 Ex 1 Vol 1, Tab 26 at p. 9.
101 Ex 1 Vol 3, Tab 44 at pp. 82, 118; see also pp. 21, 33-37, 43, 59, 61.
102 Ex 1 Vol 3, Tab 44 at p. 28.
103 Ibid.
Family confirmed that they have found an insulin syringe of novorapid in his bag.
Enquiries made of the police who attended the scene – no illicit drugs.”
On 21 November 2017, after medical advice, Jesse’s family decided to withdraw his life support. He was extubated at 11:11am and pronounced deceased at 2:25pm on that date by Dr Mohanty at Westmead Hospital.104
A Discharge Transfer Document from Westmead Hospital recorded that “[n]o clear cardiac or neurological cause of his sudden unwitnessed collapse was found”, that “TTE showed concentric LV hypertrophy consistent with a collateral hx of previous anabolic steroid use” and that “[c]ircumstantial evidence and collateral history suggests that Jesse may have injected insulin for its anabolic effects”.105
An antemortem blood sample was taken from Jesse at 3:44pm on 17 November 2017.106 Following Jesse’s death, that sample was sent for analysis by the NSW Forensic and Analytical Science Service and a blood insulin level of <1 mIU/L was recorded.107 The response of Anytime Australia and Anytime Fitness Castle Hill
Anytime Australia utilises a Workplace Health and Safety system known as Anytime Safety, which (among other things) allows franchisees to log records of incidents that occur in Anytime Fitness clubs, including safety incidents, medical emergencies and the like.108 The logging of incidents in Anytime Safety “constitutes the required, formal notification of incidents from franchisees” to Anytime Australia.109 In Mr Peil’s words, it is “meant to give a reporting system where we can gather data that allows us to analyse recurring issues, so that we can make systemic changes to improve the safety and security of members and staff and the business themselves”.110 Mr Hrobat did not fill out an Anytime Safety incident report in respect of Jesse’s incapacitation and subsequent discovery on 16-17 November 2017111 (and nor did Anytime Australia ask him to provide such a report); when asked why not, Mr Hrobat said that “I think we just had so much going on around it”.112 Mr Peil gave evidence that there should have been an Anytime Safety incident report in relation to Jesse’s collapse.113 104 Ex 1 Vol 3, Tab 44 at pp. 18-19, 22-23; Ex 1 Vol 1, Tab 1.
105 Ex 1 Vol 3, Tab 44 at p. 18.
106 Ex 1 Vol 1, Tab 4 at p. 3.
107 Ex 1 Vol 1, Tab 5; Ex 1 Vol 1, Tab 4 at p. 3.
108 Ex 2 at [3]-[4]; Mr Peil, Transcript 22/04/21, page 7, lines 12 to 21. See the template form at Ex 1 Vol 2, Tab 33 at pp. 210-216.
109 Ex 2 at [4]. See also Ex 1 Vol 2, Tab 33 at p. 167; Mr Peil, Transcript 22/04/21, page 7, lines 1 to 3; Mr Hrobat, Transcript 19/4/21, page 108, lines 26 to 29.
110 Mr Peil, Transcript 22/04/21, page 7, lines 45 to 48; see also page 8, lines 37 to 45.
111 Ex 2 (Statement of Andrew Gow) at [5].
112 Mr Hrobat, Transcript 19/4/21, page 108, lines 35 to 39, page 109, lines 1 to 3.
113 Mr Peil, Transcript 22/04/21, page 9, lines 37 to 43.
A separate “in-house” incident report was completed by each of Ms Thiessen114 and Mr Allen115 and submitted to Anytime Australia,116 and an insurance incident report was likewise prepared.117 In that respect, on or around 20 November 2017 a meeting took place between Mr Hrobat, his business partner Michael McGrath and Ms Thiessen where Ms Thiessen was told what her role would be in relation to paperwork that needed to be filled out, and any meetings with insurance, and she was also offered counselling and support.118
Mr Allen gave evidence that he was asked not to discuss the incident involving Jesse with other staff and with people who came into the gym.119 He does not recall who asked him not to discuss it, but said that it would have been shortly after the incident and that he complied with that instruction.120 Ms Thiessen does not “specifically recall being instructed not to say anything about it”.121 However, she was approached by “a couple of members a day” who queried why the police and ambulance had been at the gym.122 Those members “didn’t know any details of the situation” so Ms Thiessen “kept that from them” and “explained that a member had been locked in the bathroom” but did not tell them the member had died.123 Anytime Fitness Castle Hill does not have a newsletter, but communicates mainly through Facebook and Instagram.124 There “wasn’t really much activity” on those platforms as at 2017, and Anytime Fitness Castle Hill did not communicate any news about Jesse’s death on any of those platforms.125
Mr Peil found out about the events concerning Jesse shortly after the events themselves.126 Anytime Australia did not reach out to Jesse’s family about the circumstances of Jesse’s death.127 When asked whether the board took any action upon learning of Jesse’s incapacitation and death, Mr Peil said that “it was referred to the risk committee to analyse … and yes, we did discuss it. We asked for additional information, which was hard to get. We then undertook that any changes that – like you’re talking about needed to wait for an enquiry”.128 Mr Peil determined that Anytime Australia would wait for the outcome of the coronial inquest to implement changes.129 Mr Peil said that “a death of that type had not happened for nine years that we’ve been in operation” and that 114 Ex 3; see Ms Thiessen, Transcript 21/04/21, page 56, lines 11 to 38.
115 Ex 6.
116 See Mr Hrobat, Transcript 19/4/21, page 99, lines 40 to 50, page 108, lines 37 to 50, page 109, lines 9-10.
117 Ex 7.
118 Ms Thiessen, Transcript 21/04/21, page 55, line 9 to page 56, line 7.
119 Mr Allen, Transcript 21/04/21, page 17, lines 32 to 38, lines 45 to 50, page 18, lines 1 to 15.
120 Mr Allen, Transcript 21/04/21, page 18, lines 21 to 37.
121 Ms Thiessen, Transcript 21/04/21, page 57, line 16, page 68, lines 46 to 49.
122 Ms Thiessen, Transcript 21/04/21, page 57, lines 18 to 41.
123 Ms Thiessen, Transcript 21/04/21, page 57, lines 40 to 45.
124 Ms Thiessen, Transcript 21/04/21, page 69, lines 5 to 10.
125 Ms Thiessen, Transcript 21/04/21, page 69, lines 12 to 15; see also page 70, line 19.
126 Mr Peil, Transcript 22/04/21, page 10, lines 1 to 4.
127 Mr Peil, Transcript 22/04/21, page 47, lines 37 to 42.
128 Mr Peil, Transcript 22/04/21, page 10, lines 14 to 18.
129 Mr Peil, Transcript 22/04/21, page 11, lines 32 to 35.
“statistically the chance of that happening again were low [sic]”.130 Mr Peil also said that he was confident that even if the formal reporting system was not working, he would find out about incidents of that kind one way or another.131
I accept counsel assisting’s submission that this evidence is undermined to some degree by the circumstances surrounding an incident at Anytime Fitness Hornsby in September
The court was told that Mr Peil first became aware of that incident in April 2021, in the week prior to the hearing of this inquest. Nevertheless I accept Mr Peil’s evidence that Jesse’s collapse occurred in the context of “millions” of visits to Anytime gyms and the general submission of both Anytime Australia and ATGPPMS that collapses of the kind Jesse experienced are in fact “extremely rare”.
Items located in Jesse’s gym bag and car
Following the discovery of Jesse on 17 November 2017, police conducted a search of Jesse’s gym bag and located the following items:133 a. an empty blister packet of “Klenbol Clenbuterol HCL Tablets 60 mcg” which is a product said by its manufacturer to increase muscle bulk and strength and decrease body fat;134 b. an empty blister packet of “Modvigil-Tablets 200”; and c. an opened blister packet of “T3-Max-25 Tablets”.
Clenbuterol is mainly used for asthma but has pharmacological similarities to adrenaline, and in sufficiently high doses it can cause an increase in the metabolic rate.135 Modvigil is a drug which promotes and enhances wakefulness,136 while T3 Max tablets contain the hormone tri- iodothyronine, a naturally occurring thyroid hormone which has potential use as a weight loss agent when used in pharmacological doses.137
The Officer in Charge of the coronial investigation, Senior Constable Scott Darwick (OIC Darwick), told the court that he checked the rubbish bin inside the bathroom where Jesse was found, and it contained nothing of interest.138 However, to the best of his knowledge, the sanitary bin in the bathroom was not checked139 and no photographs were taken of that item. Detective Senior Constable Hugh Thomas attended the scene with OIC 130 Mr Peil, Transcript 22/04/21, page 12, lines 16-17.
131 Mr Peil, Transcript 22/04/21, page 11, lines 15 to 25.
132 Mr Peil, Transcript 22/04/21, page 13, line 9.
133 Ex 1 Vol 1, Tab 7 at [81].
134 Ex 1 Vol 1, Tab 7 at [97].
135 Ex 1 Vol 3, Tab 58 at [7(a)].
136 Ex 1 Vol 3, Tab 58 at [7(b)].
137 Ex 1 Vol 3, Tab 58 at [7(c)].
138 Ex 1 Vol 1, Tab 19.2.
139 Ex 1 Vol 1, Tab 19.1 at [4].
Darwick on 17 November 2017 and took a number of photographs of the bathroom and of Jesse’s property.140 DSC Thomas did not notice the presence of any needles in the bathroom.141 However, DSC Thomas confirms that police did not search the sanitary waste bin inside the bathroom where Jesse was located.142
Police also searched Jesse’s car in the car park at Anytime Fitness Castle Hill, and located:143 a. numerous unopened “BD Ultra-Fine II Short Needle Insulin Syringes”;144 b. an empty Australia Post Express Parcel from “SS.com, 177 Booran Road, Caulfield South VIC 3162” addressed to Jesse; and c. an empty blister packet of “T3-Max-25 Tablets”.
According to OIC Darwick, police did not locate any syringes or NovoRapid pens in Jesse’s gym bag or in his car during the course of their searches on or after 17 November 2017.145 There is no photographic evidence of any such items having been located by police.146
However, Jesse’s sister Eryne Davies provides a different account.147 Eryne says that while Jesse was at Westmead Hospital, Jesse’s friend SJ came to visit him in hospital.
Eryne says that while SJ was visiting Jesse at Westmead Hospital, he “said something to us like, he knew Jesse was taking insulin and he told him not to.” SJ did not mention anything about a brand called NovoRapid pen. That conversation occurred outside the nurses’ station and Eryne says that it “led us to investigate so that we could treat Jesse accordingly”. Eryne says that the family then found a NovoRapid pen in Jesse’s gym bag which had been left in the tray of Jesse’s ute by police. The pen was “thick and blue” and “there was ½ to ¾ remaining in there”. She says that they (that is, Eryne and her family) either told the hospital about the pen or showed them a photograph of the pen. Eryne was unaware at that time that Jesse was using insulin or PIEDs. Eryne’s account is noteworthy for its detail. It is also supported by the contemporaneous entry in the Westmead Hospital records on 19 November 2017 that “[f]amily confirmed that they have found an insulin syringe of NovoRapid in his bag. Enquiries made of the police who attended the scene – no illicit drugs.”
141 Ibid 142 Ibid 143 Ex 1 Vol 1, Tab 7 at [83].
144 Ex 1 Vol 1, Tab 7 at [101]-[102].
145 Ex 1 Vol 1, Tab 19.1 at [4], [6] and [8].
146 Cf. Ex 1 Vol 1, Tab 7 Annexure 2, images 1 to 11 (photographs taken by police of the restroom at Anytime Fitness Castle Hill, including Jesse’s gym bag and its contents), Annexure 1, images 1 to 15 (photographs taken by police of Jesse’s car and its contents).
147 The proceeding summary is taken from Ex 1 Vol 1, Tab 19D at [8]-[11].
likely explanation is that it was simply missed by NSW Police or that they did not recognise the pen or understand its significance at that time. I accept that the family were extremely motivated to look for anything that would aid Jesse’s treatment and the contemporaneous hospital note supports Eryne’s account.
When police arrived at the gym on 17 November 2017, Sergeant Giuseppe Mammone contacted the Crime Scene Coordinator and provided a detailed description of what had occurred, what he had witnessed, and Jesse’s condition at that time.148 The Crime Scene Coordinator declined Crime Scene Investigators’ attendance.149 In a statement provided on 15 April 2021, Acting Superintendent Debnam indicated that where an incident takes place which does not appear to be connected to a crime, but there is a person presenting in a critically ill state, then the Crime Scene Coordinator should make sufficient inquiries to establish the likelihood of the person surviving the incident.150 If the person is not likely to survive and the matter will progress to a coronial investigation, then a determination should be made for crime scene officers to attend to examine and record the scene on behalf of the coroner.151
Acting Superintendent Debnam also indicated that exhibits collected by police other than crime scene investigators will generally be photographed in situ before being collected, packaged, conveyed back to the police station, entered into the Exhibits Forensic Information Miscellaneous Property System (EFIMS) and secured in the exhibit room.152 Miscellaneous property collected by police should be photographed, packaged, entered into EFIMS and secured within the police station until such time as it is returned to the owner or otherwise disposed of.153 Where an exhibit or miscellaneous property relates materially to the cause of death, it should be retained pending a discussion with the Coroner and should not be disposed of until the Coroner directs.154 Where an item is not required to be retained and a lawful owner has been identified, the owner should be notified promptly that the items are able to be returned and arrangements should then be made to have the items returned directly to the owner, and this movement of exhibits recorded in EFIMS.155
As I have stated, I accept Eryne’s evidence that Jesse’s family located an insulin pen.
The account is highly plausible and consistent with the medical record. While no insulin pen is depicted in the contemporaneous photographs taken by police, and the evidence of OIC Darwick and DSC Thomas is that no such pen was located, I am of the view that 148 Ex 1 Vol 1, Tab 7 at [80].
149 Ibid.
150 Ex 1 Vol 1, Tab 24E at [17].
151 Ex 1 Vol 1, Tab 24E at [17].
152 Ex 1 Vol 1, Tab 24E at [27].
153 Ex 1 Vol 1, Tab 24E at [28].
154 Ex 1 Vol 1, Tab 24E at [31].
155 Ex 1 Vol 1, Tab 24E at [32].
it was most likely to have been overlooked and thus not appropriately photographed and secured. However, I note that the expert opinion of Professor Carter as to the manner of Jesse’s death does not depend on whether or not any insulin pen was in fact located on Jesse’s person or in his belongings in November 2017.
Jesse’s history of PIEDs usage
The evidence summarised below establishes that Jesse had a substantial history of PIED use and that he acquired and used a wide variety of PIEDs in the years prior to his death, including non-prescribed insulin.
Jesse had acquired or sought to acquire insulin on at least four occasions in 2016 and 2017: a. in or around October 2016, Jesse appears to have placed or sought to place an online order for an “insulin flex pen” or “90-insulin pen” using a bitcoin-based payment system;156 b. on 14 December 2016, Jesse placed an online order for, among other things, a NovoRapid insulin pen – 300iu;157 and c. on each of 25 July 2017 and 8 November 2017 Jesse purchased “2 x NovoRapid Insulin Pens – 300iu” online, using a bitcoin-based payment system.158 The latter order of 8 November 2017, which was to be delivered to Jesse via Express Postage,159 is of significance given its proximity to the date of Jesse’s death.
On 10 June 2017, Jesse made an inquiry online about the possibility of a supplier getting “any slin in stock”.160 On 11 August 2017, Jesse sent an email to an encrypted email service in which he stated “Hey how would you recommend using the dnp [2,4Dinotrophenol] with insulin? Have you combined both before?”.161 On 13 August 2017 Jesse received a response from that encrypted email service which stated “not sure on that one I have not used insulin and really don’t like it as I have seen friends in hospital because of it. maybe ask on forum what peoples [sic] thoughts are….”.162
Meanwhile, an entry in the “Notes” application on Jesse’s mobile phone dated 31 July 2017 (shortly before Jesse’s emails about combining “dnp” with insulin) sets out what appears to be a detailed regime for supplements including insulin, as follows (emphasis 156 Ex 1 Vol 3, Tab 56 at p. 9.
157 Ex 1 Vol 3, Tab 56 at p. 10.
158 Ex 1 Vol 1 Tab 7 at [105]-[106]; Vol 1 Tab 9 at pp. 50-51 (Images 1 and 2).
159 Ex 1 Vol 1, Tab 9 at p. 51 (Image 2).
160 Ex 1 Vol 3, Tab 56 at p. 12.
161 Ex 1 Vol 1, Tab 7 at [121]; Vol 1, Tab 13 at p. 105 (Image 48).
162 Ex 1 Vol 1, Tab 7 at [121]; Vol 1, Tab 13 at p. 106 (Image 49).
added):163 “Fuvk money Hard work dedication I won a Australian title on this 1ml of test prop every 2nd day from week 1 to week The 1st 6 weeks 500mg of Deca per week Dnp 400mg to 600mg for 10days then clenbutroel for 10days and repeat With the dnp I would take insuline (dnp and insuline is the most anabolic substance it's poor mans hgh at 21 iu a day dan duchain claims Ok at week 6 I would drop the Deca and throw in 1ml of parabolan or tren every 2nd day with the tren Last 4 weeks I would put in 50mg of Winstrol injected with 1ml of kynoslen.
Kynoslen is cheap man Winstrol it's amazing u buy 100ml from pet barn for 70 bucks works great to lean u out.
Last 4 weeks I would take nolvodex or letrozel at high mg to dry u out Last 3 days diuretics Back stage I would carb up on insuline.”
The reference to having “won a Australian title on this” suggests that this regime was provided to Jesse by another (unknown) individual.
On numerous occasions between August 2016 and November 2017, Jesse also searched for and reviewed information online regarding the use of insulin.164 By way of summary: a. on 16 November 2017 between 1:42pm and 1:59pm, Jesse searched on his mobile telephone for “insulin before cardio” and accessed a variety of online forums in relation to that topic until approximately 2:07pm. At least two of those forums expressed doubts about the efficacy and/or safety of using insulin before cardio. Jesse subsequently tagged in at Anytime Fitness Castle Hill at 2:45pm on that date; 163 Ex 1 Vol 3, Tab 55 at p. 6.
164 Ex 1 Vol 3, Tab 55 at pp. 11-13; Ex 1 Vol 3, Tab 56.
b. on 11 November 2017, Jesse accessed a YouTube video about “insulin without GH, insulin with GH peptides”; c. on 10 November 2017, Jesse conducted a Google search for “insulin only pre workout” and subsequently accessed various webpages responsive to that search; d. on 9 November 2017, he searched for “insulin without hgh” and “insulin without growth” and accessed several online message threads and articles in response to those searches; e. on 8 November 2017, Jesse accessed at least six YouTube videos after searching “insulin pre-workout”; f. on 7 November 2017, he searched for “milos insulin protocol” (which appears to be a reference to bodybuilder Milos Sarcev, who had posted videos online about insulin, hgh and its use in bodybuilding). Also on 7 November 2017, Jesse accessed three YouTube videos about insulin use in bodybuilding as well as various message forums about that topic; g. on 4 November 2017, Jesse accessed an online message thread on his mobile telephone, which discusses among other things using “slin”; h. on 27 October 2017, Jesse searched on his mobile telephone for, among other things, “using insulin” and “using insulin for comp prep”; i. on 10 September 2017, Jesse searched online for “dnp and insulin”; j. on 28 August 2016, Jesse searched for “feel nothing from taking 20iu insulin”; k. on 22 August 2016, Jesse searched for “how to tell if insulin is real”; and l. on 21 August 2016, Jesse searched for “insulin dosage bodybuilding”.
166 SJ, Transcript 22/04/21, page 79, line 38.
167 Ex 1 Vol 1, Tab 19E at [9]; SJ, Transcript 22/04/21, page 79, line 44.
168 Ex 1 Vol 1, Tab 19E at [9].
lolly to reverse it.169 SJ says that he told Jesse to “get off it”,170 and that Jesse told him that insulin was one of the best and fastest muscle building components that you could take.171 According to SJ, Jesse was injecting into his stomach just near the belly button, because that area is considered a “fast receptor”.172 SJ does not know how frequently Jesse was using insulin, or what dosage or type of insulin he was using and Jesse never told him where he was getting it from.173 Nor does SJ know whether Jesse used insulin before or after training.174
There is therefore considerable evidence to establish that Jesse had acquired and selfadministered insulin in the period prior to 16 November 2017 for its perceived anabolic effects, including by reference to his purchase of two NovoRapid insulin pens on 8 November 2017 and the online searches conducted shortly before he entered the gym on 16 November 2017. This provides strong circumstantial evidence supportive of the expert opinion of Professor Carter, namely that Jesse developed hypoglycaemia and fell unconscious as a result of the administration of insulin.
More broadly, from at least October 2016 Jesse procured Trenbolone, thyroid hormones, Modafinil, Dihydroboldenone Cypionate, Testosterone Suspension, Dihydroboldenone, Testosterone Enanthate, Testosterone Propionate, Atomoxetine Hydrochloride, Clenbuterol, 2,4-Dinitrophenol, Etizolam, Tadalafil, Trenbolone Hexahydrobenzylcarbonate, and ephedrine, caffeine and aspirin.175 In emails sent in 2017, Jesse indicated that he was taking T3, “test 1 cyp” (Dihydroboldenone Cypionate), testosterone suspension and “clen” (Clenbuterol) and that he had also sold one drug to a client.176 A note recorded in Jesse’s phone dated 5 October 2017 sets out what appears to be a record of the regime that Jesse was following as at that date, including the use of (among other things) Clenbuterol and DNP.177 Meanwhile, Jesse’s mother Debbie says that after she cleaned out his room in November 2017, she located little black and silver coloured satchels of gel labelled “testosterone” in Jesse’s refrigerator which she disposed of,178 as well as a NovoRapid pen in his freezer.179
The substances acquired by Jesse during this period were procured from websites hosted behind proxy servers, so that the websites are untraceable by NSW Police.180 They were also procured from encrypted email services, which were likewise 169 Ex 1 Vol 1, Tab 19E at [9]. See also Professor Carter, Transcript 23/04/21, page 13, line 28 to page 14, line 14.
170 Ex 1 Vol 1, Tab 19E at [9].
171 Ex 1 Vol 1, Tab 19E at [10].
172 Ex 1 Vol 1, Tab 19E at [10]; SJ, Transcript 22/04/21, page 81, lines 12 to 23.
173 Ex 1 Vol 1, Tab 19E at [10]; SJ, Transcript 22/04/21, page 80, lines 29 to 49.
174 SJ, Transcript 22/04/21, page 81, line 31.
175 Ex 1 Vol 1, Tab 7 at [120], [126]-[127], [130]; Vol 3, Tab 56 at pp. 9ff.
176 Ex 1 Vol 1, Tab 13 at pp. 62-3, 70, 77, 82, 89-91, 95-98, 103.
177 Ex 1 Vol 3, Tab 55 at pp. 6-8.
178 Ex 1 Vol 1, Tab 19A at [14].
179 Ex 1 Vol 1, Tab 19B at [4].
180 Ex 1 Vol 1, Tab 7 at [148].
untraceable during the investigation.181 Jesse used the payment method of the cryptocurrency “Bitcoin” and the encrypted messenger application “Wikr” to procure substances, so that both the money and the messages are also untraceable.182 Jesse’s medical history
Nor had he been diagnosed with diabetes or prescribed insulin by any of his doctors.
Jesse did divulge that he was taking or had taken anabolic steroids, protein supplements and iron supplements; thus, he informed his treating doctors on a number of occasions from at least August 2012 that he was taking or had taken testosterone, including in his last recorded consultation with general practitioner Dr Segaram on 6 July 2017 at Round Corner Medical Practice.183
By way of summary, Jesse’s medical records disclose the following:184 a. On or about 6 September 2012, Jesse attended the practice of endocrinologist Professor Steven Boyages “for continuing management of suppressed serum testosterone levels”.185 Professor Boyages noted that Jesse had tried anabolic steroids for a period of time as a very young man and was taking multiple high strength compounds. Although Jesse reported that he had “been off the compounds now for about a year”, his serum testosterone levels “remain quite suppressed with values of 2.6 and 2.2 respectively”. Professor Boyages recorded his suspicion that Jesse’s prolonged suppression of LH FSH may be due to exogenous steroid use. Professor Boyages also noted that Jesse had a “moderately loud systolic ejection murmur … at the base of the heart.”186 b. On 20 September 2012, Professor Boyages reviewed Jesse and observed that he continued to have low testosterone levels and suppressed pituitary hormones.187 Professor Boyages also noted that “liver function tests are slightly perturbed and urea is elevated”.188 Those findings were “consistent with pituitary suppression due to previous use of anabolic steroids”. Professor Boyages recorded that while Jesse “strongly denies” current use of anabolic steroids, he 181 Ibid.
182 Ibid.
183 Ex 1 Vol 3, Tab 50 at p. 4.
184 Ex 1 Vol 3, Tabs 48 to 50.
185 Ex 1 Vol 3, Tab 48 at pp. 28-29.
186 Ex 1 Vol 3, Tab 48 at p. 28.
187 Ex 1 Vol 3, Tab 48 at p. 31.
188 Ex 1 Vol 3, Tab 48 at p. 31.
“is using other compounds and there may still be some androgenic properties in some of these other compounds”. Professor Boyages recommended a “trial of treatment” for Jesse.189 c. On 14 February 2013, Professor Boyages again reviewed Jesse.190 He recorded that Jesse’s serum testosterone on Testogel had increased to above normal at
41.1. Jesse continued to exhibit elevated urea and abnormal liver function, both of which were “probably related” to the supplements he was taking.191 d. On 1 August 2013, general practitioner Dr Sharmini Mendis saw Jesse.192 The clinical record of that consultation records that Jesse was “adviced [sic] very strongly that these [steroids] will affect his health adversely – aware of the consequences”.193 Dr Mendis’ correspondence to Professor Boyages with respect to that attendance noted, amongst other things, that Jesse was “possibly maybe ?? taking steroids at the gym?? … He admitted this on close questioning that he’s done this in the past”.194 e. On 29 August 2013, Jesse was reviewed by endocrinologist Dr Mark Rosman.195 In his record of that consultation, Dr Rosman noted that Jesse had taken anabolic steroids in the past, and that he had been taking supplements including “peptides” and protein supplements. The week prior to his appointment, Jesse took an illicit injection of a short-acting testosterone preparation. Blood tests also indicated that Jesse was either taking growth hormone or something which would stimulate endogenous growth hormone production. Dr Rosman recorded his concern that Jesse’s persistent liver function abnormalities were related to his use of supplements, and noted that growth hormone excess can put him at risk of diabetes, leukaemia and symptoms of acromegaly.196 He referred also to problems with infertility, severe mood changes and even suicide, as well as secondary polycythaemia and increased risk of thromboembolic disease. Dr Rosman says “I told him that I think that he is being very foolish taking illicit testosterone preparations” and that, as regards testosterone and growth hormone, “[b]oth of these can be harmful for a number of reasons”.197 Dr Rosman says that “I also pointed out that most of the illicit testosterone preparations which he will have access to are 189 Ex 1 Vol 3, Tab 48 at p. 31.
190 Ex 1 Vol 3, Tab 48 at pp. 23-24.
191 Ex 1 Vol 3, Tab 48 at pp. 23-24.
192 Ex 1 Vol 3, Tab 48 at p. 22.
193 Ex 1 Vol 3, Tab 48 at p. 8.
194 Ex 1 Vol 3, Tab 48 at p. 22.
195 Ex 1 Vol 3, Tab 48 at pp. 15-16.
196 Ex 1 Vol 3, Tab 48 at pp. 15-16.
197 Ex 1 Vol 3, Tab 48 at p. 15.
veterinary products which are made to significantly lower standards than products made for human consumption”.198 f. On 11 September 2013, Jesse had an appointment with Dr Mendis. Dr Mendis’ record of that consultation says that Jesse was “strongly adviced [sic] that he is destroying his life by taking testosterone and supplement.s [sic] given a=examples [sic] given information this is not legal”.199 g. On 30 December 2014, general practitioner Dr Talal Serhan attended on Jesse and recorded that he “took lots of steroid to build up muscles”.200 h. On 2 January 2015, Dr Serhan again reviewed Jesse and recorded that he “was taking testosterone suppliments [sic] till 2/52 ago”.201 Dr Serhan recorded that “pt. has been educated not to take supplement [sic] and to lose weight”.
i. On 28 May 2015, Jesse attended an appointment with Dr Mendis.202 Dr Mendis recorded that “testosterone high” and that Jesse was “still taking illegal testosterone”. Dr Mendis noted that he “adviced [sic] risks and potential life threatening complications - not willing to stop”.203 j. On 9 October 2015, Jesse attended a consultation with Dr Serhan.204 Dr Serhan recorded “elevated liver enz. he eats high fat diet and lots of suppliments [sic]…”.205 k. On 19 August 2016, Jesse attended a consultation with general practitioner Dr Wenxiong He.206 According to Dr He’s record of that consultation, the pair discussed ceasing the use of protein supplements and testosterone.
l. On 16 March 2017, Jesse attended another appointment with Dr He.207 Dr He’s record of that appointment notes the following: “discuss about the steroid use side effect and stress at work and gym training, state he will cut down the gym and testosterone use”.208 m. On 3 July 2017, Jesse attended a consultation with Dr Patrick Ao.209 Dr Ao recorded “Take testosterone for muscle building” and “Healthy lifestyle 198 Ex 1 Vol 3, Tab 48 at p. 16.
199 Ex 1 Vol 3, Tab 48 at p. 9.
200 Ex 1 Vol 3, Tab 49 at p. 1.
201 Ex 1 Vol 3, Tab 49 at p. 2.
202 Ex 1 Vol 3, Tab 48 at p. 11.
203 Ibid.
204 Ex 1 Vol 3, Tab 49 at p. 3.
205 Ex 1 Vol 3, Tab 49 at p. 3.
206 Ex 1 Vol 3, Tab 48 at pp. 11-12.
207 Ex 1 Vol 3, Tab 48 at p. 12.
208 Ibid.
209 Ex 1 Vol 3, Tab 50 at p. 3.
discussed”.210
discussed adverse effects of excess testosterone, iron
also discussed risks of unknown ingredients in certain supplementations …
discussed the possibility of supplements causing blood abnormalities …”
He also experienced various health issues that were (or were suspected to have been) caused by or related to his steroid and supplement use, including low testosterone levels, abnormal liver function, suppressed pituitary hormones, elevated urea, low energy and digestive issues. He had previously experienced dizzy spells or near collapse after using insulin at home. Ultimately, notwithstanding the advice he had received, Jesse made a decision to continue using these substances in an effort to change his body and increase his muscle.
211 Ex 1 Vol 3, Tab 50 at p. 4.
212 Ibid.
Australia’s submission that Jesse’s death was caused by insulin and that his use of other PIEDs such as anabolic-androgenic steroids (AAS) “was not connected with his death.” While this may be strictly true, I think it misses the importance of the pattern and progression of Jesse’s PIED use. Insulin is unlikely to have been the first PIED Jesse tried, but his progression to that substance and his continued use, even after having suffered troubling effects, is noteworthy. It may be that insulin is a particularly taboo drug to disclose and it is noteworthy that Jesse did not discuss it with his medical practitioners. While the expert evidence suggests it may be a substance used more often by “hard core” body builders, it is not useful to consider the use of insulin away from its context as a broadly defined PIED. It was for that reason, while primarily focussed on the use of insulin, the court received evidence on the use of PIEDs more generally.
PIEDs: resources and training
The circumstances of Jesse’s death are extremely concerning. The court was keen to understand Jesse’s decision to keep using PIEDs after having been advised of at least some of the risks involved and to understand why he may not have sought medical advice about his insulin use. It is necessary when grappling with these issues to understand the nature of the information and training available to both Jesse and those advising him in relation to his ongoing PIED use.
The Court heard that the Royal Australian College of General Practitioners (RACGP) does not produce any clinical guidelines or reports in connection with the actual or suspected use of PIEDs by patients, including appropriate advice or referral pathways.213 Nor does the RACGP collect data in relation to the prevalence of PIEDs usage, or the use of non-prescribed insulin more specifically.214 The RACGP Ethics Committee provided ethical approval for a research study called “PUSH! The PIED users’ health audit” (the PUSH! Audit) which was scheduled to run until 2021 and to chart patients’ physical health measures in areas that can indicate side effects of non-prescribed anabolic steroid use; however, the RACGP is not itself directly involved in the project.215
The court was also assisted by information provided by the NSW Ministry of Health (Ministry). The Ministry is responsible for the website “Your Room”, which is the NSW Government’s primary source for providing information on the health effects of PIEDs.216 That website provides a dedicated page on anabolic steroids and a ‘Steroids Fact Sheet’ which is currently undergoing review. The Ministry indicated that it was open to consulting with the RACGP, representatives of the fitness industry and other experts in 213 Ex 1 Vol 3, Tab 50D.
214 Ex 1 Vol 3, Tab 50D.
215 Ex 1 Vol 3, Tab 50D.
216 Ex 1 Vol 3, Tab 50B at p. 1.
the field of PIEDs.217 There is also capacity on Your Room to link or refer to other government-endorsed resources. Since mid-2019, the Ministry has been working to improve how Your Room website search results appear higher in the ranking for a range of search terms such as “PIEDs” or “steroids”, using search engine optimisation strategies.218
While there are no formal educational programs provided by or in consultation with the Ministry in relation to PIEDs usage, Needle and Syringe Program (NSP) workers engage with clients to provide information, education and other services as required, while written materials targeting PIEDs users are available through most NSP sites in NSW.219 Those resources highlight harm reduction messaging, including safe injection techniques and obtaining suitable health support.220
The expert evidence of Dr Eu and Dr van de Ven clearly established the paucity of resources, educational material and support services available to PIED users in New South Wales, and little in the way of effective measures to prevent or reduce the use of PIEDs and the harms associated with those substances. In addition, there is little specific training, education or support for health professionals to assist in identifying, managing and treating those who use or are suspected of using PIEDs. While existing NSP can provide syringes and some limited resources, there is likely to be a need to target material specifically for PIED users, as while they may use syringes, some PIED users may not identify themselves as “drug users.”221
The evidence suggests that in lieu of professional advice, PIED users like Jesse may rely on advice obtained from their peers or from unreliable internet forums.222 The inherent danger in anonymous or non-medical advice is obvious.
The prevalence of PIED use generally and by members of Anytime Fitness
Secrecy and stigma surrounding PIED use is also a barrier to understanding the real nature of the problem and to obtaining accurate statistics. While Jesse’s death occurred at an Anytime Fitness club, there is no suggestion that PIED use is a particular issue at 217 Ex 1 Vol 3, Tab 50B at pp. 1-2.
218 Ex 1 Vol 3, Tab 50B at p. 2.
219 Ex 1 Vol 3, Tab 50B at pp. 2-3.
220 Ibid.
221 Ms Stanton, Transcript 18/06/21, page 7, lines 26 to 27.
222 See Ex 1 Vol 3, Tab 56 at pp. 3-8.
Anytime Fitness gyms. The issues go well beyond any specific franchise or enterprise and for this reason it was appropriate to attempt to gain an overview of the size and nature of the problem. In this respect, the court was greatly assisted by the expert evidence, as well as the specific knowledge of those working for Anytime Fitness gyms.
Conflicting evidence was given as to whether, and to what extent, patrons at Anytime Fitness gyms are likely to be engaged in the use of PIEDs.223 Mr Hrobat and Mr Peil respectively considered that most members of Anytime Fitness Castle Hill and Anytime Fitness more broadly would not be PIED users, based at least in part upon their belief that PIEDs use predominantly occurs among bodybuilders; SJ’s impression was to the contrary, as was the evidence of Kay Stanton. Moreover, the consistent evidence of Dr Eu, Dr van de Ven and Ms Stanton demonstrates that PIEDs are used by males and females across a range of different age groups, with varying lifestyles and professions, and that for a host of different reasons one cannot necessarily tell from a person’s appearance whether they use PIEDs. The court also heard that most PIED users train at the gym regularly and that large bodybuilders do not in any sense represent the majority of the cohort of PIED users. The evidence also established that the question of PIED use is attended by an element of secrecy. It is not discussed openly, save perhaps amongst friends, and users are reluctant to be viewed as drug users or “cheats”. I note that at the conclusion of the evidence counsel for ATGPPMS quite properly conceded that it appears that PIEDs are likely to be used by a wider section of society than Mr Hrobat understood to be the case and that use was not confined to body builders. I accept the evidence of Dr Eu, Dr van de Ven and Ms Stanton in this regard.
Mr Hrobat told the court that the “vast majority” of members at Anytime Fitness Castle Hill would not ordinarily consider the use of PIEDs.224 Mr Hrobat was concerned that erecting signage or providing educational material with respect to PIEDs may suggest that the use of PIEDs is prevalent or acceptable; that it may cause some members to consider something they would otherwise not consider; and that it may cause some members to believe that drug use is acceptable at Anytime Fitness Castle Hill.225 For that purpose, Mr Hrobat was relying simply on his experience with the member base of Anytime Fitness and his long association with the gym industry. He had not himself reviewed any data or conducted any research into the effects of educational material regarding drug use on his gym members or the public.226 Neither Mr Hrobat nor Anytime Fitness Castle Hill collates or reviews any data on the prevalence or incidence of PIEDs 223 See also Ms Thiessen, Transcript 21/04/21, page 35, lines 40 to 50; Mr Allen, Transcript 21/04/21, page 21, line 20 to page 22, line 21.
224 Ex 1 Vol 1, Tab 31.3 at [7.1].
225 Ex 1 Vol 1, Tab 31.3 at [7.1].
226 Mr Hrobat, Transcript 19/4/21, page 92, lines 3 to 7, lines 28 to 30.
usage within the fitness industry.227
Mr Hrobat also says that Anytime Fitness gyms “do not cater to the demographic which would primarily use PIEDs” (which he believed to be mainly body builders).228 However, Mr Hrobat accepted that there would be people coming to Anytime Fitness gyms who would be using PIEDs.229 Mr Hrobat gave evidence of “a couple of instances” where needles or syringes have been located in bathroom bins and in car parks at the Anytime Fitness centres operated by ATGPPMS.230 Mr Hrobat also accepted that “[y]ou don’t a hundred per cent” know if somebody is using PIEDs and that “I could look at someone and have an inkling but I can’t make a determination off how they look … it is very hard to prove and show”.231 Mr Hrobat is not aware of any research or statistics in relation to the demographics that use PIEDs in Australia.232 Mr Hrobat has not himself been involved in bodybuilding, and he has not trained any clients who were involved in bodybuilding albeit that competitive bodybuilders have frequented his clubs.233
Mr Peil stated that Anytime Fitness clubs “deliberately do not cater for the heavy weightlifting community where, anecdotally, the use of illicit substances occur”.234 Mr Peil based that statement, in part, upon the fact that Anytime Australia imposes a limit of 60kg on the dumbbells that are stocked at Anytime Fitness centres,235 though he accepted that most Anytime Fitness clubs would have “a handful” of “heavy lifters”.236 Mr Smith likewise gave evidence of what he described as Anytime Australia’s “practical deterrent strategy to prevent and prohibit use of illicit substances” in limiting the weight of dumbbells to 60kg “[b]ecause there seems to be a correlation with drug use and those heavier weights”.237
However, there is no corresponding limit on the capacity of any of the other machines and weights at Anytime Fitness gyms in Australia. For instance, all Anytime Fitness gyms are equipped with barbells which are then loaded on either side with weight plates by the individual user for use in a variety of compound exercises, such as squats, deadlifts and bench press.238 Mr Peil gave evidence that there is “no limit” on the weight capacity of barbells and that “somebody could go and grab every weight … off the floor and stack that weight on”.239 Anytime Fitness gyms stock weight plates of up to 25kg.240 The 227 Mr Hrobat, Transcript 19/4/21, page 91, lines 9 to 12.
228 Ex 1 Vol 1, Tab 31.3 at [7.2]-[7.3].
229 Mr Hrobat, Transcript 19/4/21, page 99, lines 4 to 13.
230 Mr Hrobat, Transcript 19/4/21, page 95, lines 44 to 50, page 96, lines 1 to 4.
231 Mr Hrobat, Transcript 19/4/21, page 94, lines 9 to 11, lines 19-20.
232 Mr Hrobat, Transcript 19/4/21, page 97, lines 4 to 6.
233 Mr Hrobat, Transcript 19/4/21, page 91, lines 35 to 41.
234 Ex 1 Vol 2, Tab 33B at [26].
235 Mr Peil, Transcript 22/04/21, page 29, lines 10 to 12, page 33, lines 17 to 25.
236 Mr Peil, Transcript 22/04/21, page 34, lines 31 to 33.
237 Mr Smith, Transcript 22/04/21, page 65, line 46 to page 66, line 10; Ex 1 Vol 2, Tab 33C at [11]-[12].
238 Mr Peil, Transcript 22/04/21, page 26, line 43 to page 27, line 44.
239 Mr Peil, Transcript 22/04/21, page 27, lines 3 to 5.
240 Mr Peil, Transcript 22/04/21, page 27, line 11.
barbell can therefore be used to lift or bench press 220 kilograms or more.241 Pin-loaded machines can likewise be loaded with weights well in excess of 60kg.242 Indeed, using a plate-loaded machine such as a leg press, a person at Anytime Fitness could seek to press 400 kilograms worth of weights.243 It follows that, notwithstanding the weight limit of 60kg imposed with respect to dumbbells, there is no impediment to patrons of Anytime Fitness training with a variety of weights that well exceed that limit, and that are capable of facilitating the kind of training session in which a “large bodybuilder” might wish to engage.
WJ and SJ
WJ was a friend of Jesse’s and used to train with him at various Anytime Fitness gyms.244 He was formerly a personal trainer at Anytime Fitness Castle Hill (Central)245 and a user of PIEDs. WJ told the court he had competed in nine bodybuilding competitions (including the competition in which Jesse competed in October 2017), and that he placed second in a national bodybuilding competition.246 WJ gave evidence that “it’s a very taboo industry that we – that I come from and a lot of people just don’t want to talk about it”.247 WJ said that it is “assumed that virtually all professional bodybuilders … are performance enhancing” and that “[i]t wasn’t something that I wanted to do; it was something that was, like, I guess that’s what I have to do to get there”.248 WJ mainly used testosterone, together with supplements, during the period that he competed in bodybuilding competitions.249
WJ gave evidence that the absence of dumbbells over 60kg did not deter him from training at Anytime Fitness gyms. He said simply “you just work around it … If there weren’t enough weights in one machine, you would just go to another machine and try and lift more there or you would change the way in which you were lifting that weight”.250
SJ is also a former user of PIEDs. He used to obtain testosterone enanthate from Jesse, which SJ used “on and off” for about a year.251 SJ used to train with Jesse at Anytime Fitness Dural.252 He gave evidence of his impression that around 80-85% of people that go to the gym will be using some form of PIED or supplement (legal or illegal), that it is 241 Mr Peil, Transcript 22/04/21, page 27, lines 10 to 44.
242 Mr Peil, Transcript 22/04/21, page 28, line 46 to page 28, line 8.
243 Mr Peil, Transcript 22/04/21, page 28, line 25.
244 WJ, Transcript 22/04/21, page 103, line 10, line 50 to page 104, line 2.
245 WJ, Transcript 22/04/21, page 108, line 50.
246 WJ, Transcript 22/04/21, page 107, lines 21 to 30, page 112, lines 26 to 30.
247 WJ, Transcript 22/04/21, page 122, lines 23-24.
248 WJ, Transcript 22/04/21, page 106, lines 35 to 40, page 117, lines 36-37.
249 WJ, Transcript 22/04/21, page 113, lines 19 to 32, page 116, lines 26 to 29 250 WJ, Transcript 22/04/21, page 116, lines 5 to 12.
251 SJ, Transcript 22/04/21, page 84, line 35 to page 85, line 32.
252 Ex 1 Vol 1, Tab 19E at [4].
“common at Anytime Fitness”253 and that around “60% of the guys” are on steroids or performance enhancing drugs (as distinct from legal protein supplements).254 SJ gave evidence that PIEDs use is not discussed openly, except amongst friends. He said that “no one wants to be known as, like, they cheated to get to a certain point. So, do people openly talk about it? No. Like, if it’s your friends, yes”.255 He said that “the way information is spread about performance enhancing drugs is you'll find someone at the gym that looks a certain way and then you kind of just work your way up and speak to them, train with them, and then you ask them what they're taking. And then, the way it works is, whatever they're taking you think is good because of the way they look, so you don't question it, you just say, ‘Give me what you're taking’”.256
Counsel for ATGPPMS urged the court to reject SJ’ evidence in relation to the prevalence of PIED use, in particular his suggestion that around “60% of the guys at Anytime would be on steroids or performance enhancing drugs”. I accept his evidence does not fit easily with the existing objective data and that it is likely to be inflated or influenced by his own experience.
Putting to one side the precise figures nominated by SJ, his broad impression of the prevalence of PIED use among the gym-goers he associated with (including those at Anytime Fitness) and his candid information about the secrecy with which PIED use is regarded by users was enlightening. Like others who gave evidence he appeared convinced he could tell who was using PIEDs, something which was also cautioned against by the experts.
Dr Eu
253 SJ, Transcript 22/04/21, page 86, lines 10 to 43, page 87, line 21, page 92, lines 25 to 31, page 96, lines 10-11.
254 SJ, Transcript 22/04/21, page 96, lines 10-11.
255 SJ, Transcript 22/04/21, page 89, lines 18 to 20, page 95, lines 16 to 18.
256 SJ, Transcript 22/04/21, page 89, lines 31 to 37; see also WJ, Transcript 22/04/21, page 111, line 40 to page 112, line 20.
257 Ex 5, Tab 65 at p. 1.
258 Ex 5, Tab 65
Dr Eu told the court that PIEDs include a large variety of substances, the most common being AAS, such as testosterone and other synthetic hormones that mimic the molecular structure of testosterone.259 There is very limited published data in Australia regarding the prevalence of PIEDs use.260 The existing data shows that 2-3% of secondary school students (approximately 30,000 to 45,000 students) have used PIEDs.261 Dr Eu estimates, based on data in the United Kingdom and the United States, that there are probably 150,000 to 250,000 current users of PIEDs in Australia.262 Dr Eu has not seen any specific prevalence data with respect to insulin use263 but notes that anecdotally, insulin is “often only used by ‘hard-core’ bodybuilders / strength competitors”.264
In terms of demographics, Dr Eu identified that PIEDs are mainly used by males and that PIEDs use ranges from teenagers through to people in their 60s.265 The main population is likely to be 20 – 40 year old men from all different professions and backgrounds.266 The majority of people who use PIEDs are not doing it for sports or competition purposes but to make some gains at the gym, either to increase their strength or to improve their appearance.267
Dr Eu stated that there is no accepted best practice for management by medical practitioners of patients who use, or are suspected of using, PIEDs.268 Having become aware of that deficiency, Dr Eu was involved as a co-author in the publication in December 2020 of the Sydney North Health Network “GP guide to harm minimisation for patients using non-prescribed anabolic-androgenic steroids (AAS) and other performance and image enhancing drugs (PIEDs)” (SNHN GP Guide).269 The SNHN GP Guide was commissioned and funded by the Sydney North Health Network270 and uploaded to their website; it was then promoted by way of an article on the RACGP website dated 15 February 2021.271 The court had an opportunity to review this excellent resource and would support its wider distribution.
Dr Eu gave oral evidence that harm minimisation is about looking after the health of PIEDs users, even if they continue to use PIEDs.272 This approach sits comfortably within broader harm minimisation principles that are readily implemented in relation to other 259 Ex 5, Tab 65 at [1].
260 Ex 5, Tab 65 at [2(a)].
261 Ibid.
262 Ex 5, Tab 65 at [2(a)].
263 Ibid.
264 Ibid.
265 Ex 5, Tab 65 at [2(b)].
266 Ibid.
267 Ibid.
268 Ex 5, Tab 65 at [2(c)].
269 Ex 5, Tab 64 at Attachment C.
270 As to which, see Ex 12.
271 Ex 11.
272 There is no transcript of the oral evidence given by Dr Eu and Dr van de Ven on 17 June 2021 owing to a malfunction with the recording system.
drugs of addiction. However in contrast to harm minimisation strategies regarding drugs of addiction, Dr Eu says that there is no specific training or education provided to general practitioners in Australia in relation to treatment, advice and referral pathways for individuals who use PIEDs and that this is an area that has been “lacking in attention and resources”.273 Nor are there any clear referral pathways for general practitioners to use.274 In Dr Eu’s opinion, ongoing education on this subject needs to be provided to general practitioners and other health practitioners.275 Dr Eu says that the “difficulty finding non- judgemental health care with a focus on harm reduction for this population remains a challenge”.276
Dr Eu told the court that there is no specific training in relation to insulin use in this setting and that the stigma and non-disclosure associated with PIEDs use presents a challenge to even engage with these patients.277 Dr Eu gave oral evidence that there is “real hesitation” among PIEDs users to disclose their use of those substances to their general practitioner, but that in his experience these individuals are very receptive to his advice about the risks of PIED use and harm minimisation. Dr Eu’s oral evidence was that most patients generally express an intention to continue using PIEDs despite the risks, albeit that a small number will stop using altogether.
Dr Eu was unaware of any published data about insulin-related deaths or near deaths and believes there is a paucity of data in this field in general.278 He stated that due to the stigma associated with PIEDs , it is likely that any PIED use is not disclosed when presenting to health services.279
Dr Eu was involved in the PUSH! Audit which was designed to collect data about PIED users and to provide education to the doctors involved with the audit.280 The results of that study are still being collated and analysed; however, Dr Eu gave oral evidence that the results that are presently available indicate an average body mass index (BMI) among users of 27.8, which effectively corresponds with the BMI of the average male in Australia (which is 28). In his oral evidence, Dr Eu confirmed that one mostly cannot tell if a person is using PIEDs simply by their appearance and that in his experience, large bodybuilders are the “minority” in terms of the cohort of PIEDs users.
In Dr Eu’s opinion, there needs to be more education campaigns for PIEDs users.281 Currently, their only source of information is online and, whilst some of the information on 273 Ex 5, Tab 65 at [3(a)].
274 Ex 5, Tab 65 at [3(a)].
275 Ex 5, Tab 65 at [4(b)].
276 Ex 5, Tab 65 at [3(a)].
277 Ex 5, Tab 65 at [3(b)].
278 Ex 5, Tab 65 at [2(d)].
279 Ibid.
280 Ex 5, Tab 65 at [4].
281 Ex 5, Tab 65 at [4(b)].
the internet is accurate, there is no easy way for people to tell which are the reliable sources and which are not.282 There are some limited resources available (e.g. the Australian Drug Foundation, Hepatitis Australia) but Dr Eu’s opinion is that there need to be more reliable resources readily available, so that there is an increased chance of encountering these reliable resources online.283
Dr Eu stated that one of the challenges is creating harm reduction information which can be disseminated through gyms.284 Gyms have generally been resistant to any such efforts; however, the reality is that almost all PIEDs users go to the gym so it would be effective, in Dr Eu’s opinion, to have harm minimisation messages placed in gyms.285 Dr Eu’s opinion is that it would be “extremely useful to have a fitness industry led campaign” and to work with the fitness industry to come up with some useful training to help prevent harm at the gym.286 In his oral evidence, Dr Eu described the fitness industry as having a “crucial role” to play in this area and said that it was important to start a dialogue with the Ministry, the fitness industry and health care professionals with an interest in the area. Dr Eu’s opinion is that some harm reduction messages are essential (including for those who are going to the gym and using PIEDs) as there will always be some people who will use PIEDs despite knowing the associated harms.287 I accept the force of his evidence in this regard.
Dr Eu stated that another significant issue is the lack of services to help someone cease using PIEDs.288 For instance, Dr Eu identifies that significant side effects are experienced by individuals who stop using these substances due to the lack of testosterone (which could last up to 6 months or longer), but there are no treatment programs to help them overcome those symptoms.289
Finally, Dr Eu told the court that in his opinion, government support would be beneficial in raising awareness, and highlighting the dangers, of PIEDs, and it would also provide clarity about the legality of its practice for doctors and patients alike.290 Doctors need to be confident about their practice not being in violation of the law and patients need to know that by seeking help, they do not risk a criminal conviction.291
The RACGP was invited, but declined, to comment on the report of Dr Eu.292
Dr Eu was an impressive and knowledgeable witness. I accept all his recommendations 282 Ibid.
283 Ibid.
284 Ibid.
285 Ibid.
286 Ibid.
287 Ex 5, Tab 65 at [5].
288 Ibid.
289 Ibid.
290 Ibid.
291 Ex 5, Tab 65 at [5].
292 Ex 5, Tabs 50E-F.
without reservation. There is clearly a need for further education and support for general practitioners in this area of medicine. Referral pathways and treatment programs need to be developed. Harm reduction principles must inform the development of new resources and partnerships with the fitness industry must be developed. I accept Dr Eu’s evidence that this area is currently under-resourced.
Dr van de Ven
Dr Katinka van de Ven is a Senior Lecturer at the Centre for Rural Criminology at the University of New England and a Visiting Fellow as part of the Drug Policy Modelling Program, Social Policy Research Centre at the University of New South Wales. Dr van de Ven was briefed to provide an expert opinion regarding inter alia the prevalence and use of PIEDs in Australia, the market for production and supply of those substances, and existing harm minimisation programs or initiatives for persons who use or are suspected of using PIEDs. She provided an expert report dated 19 May 2021293. Dr van de Ven appears to be one of the few academics with a broad overview of PIED use in Australia and the court was greatly assisted by her expertise.
Dr van de Ven advised the court that PIEDs are drugs used to enhance the appearance of a person and/or to improve their physical capabilities such as strength or endurance.294 The term represents a wide range of substances (both licit and illicit), but the oldest and largest group are non-prescribed AAS.295 There are various risks associated with PIEDs use, arising from the substance itself, the way it is administered and the source.296
The most common reported reason for using non-prescribed AAS and PIEDs is for aesthetic purposes.297 Other reported motivations for using PIEDs are for recreational and competitive bodybuilding; to enhance sport performance; to enhance occupational performance; hormone replacement therapy; retaining youthfulness; for anti-aging purposes; and to aid injury pain / anxiety / increase confidence.298 As for insulin, that is used for its perceived anabolic effects and strength, to burn fat, and for weight-loss purposes.299
Dr van de Ven described the market for the production and supply of PIEDs in Australia.
While there is very little research on that topic, a study conducted by Dr van de Ven showed that the largest group of PIEDs providers in Australia (22%) consisted of people Ex 5, Tab 67 294 Ex 5, Tab 67 at p. 1.
295 Ex 5, Tab 67 at pp. 1-2.
296 Ex 5, Tab 67 at pp. 3-4.
297 Ex 5, Tab 67 at p. 2.
298 Ex 5, Tab 67 at p. 2-3.
299 Ex 5, Tab 67 at p. 3.
working in the gym industry (e.g. personal trainers and gym owners) followed by the healthcare sector (17%).300 This is consistent with what has been shown internationally.301 Counsel for ATGPPMS urged caution in relation to Dr van de Ven’s statistics. He pointed out that the data was obtained from scanning Austlii judgements (convictions) and media articles concerning 144 court cases from 2010-2016 and that it was, as a consequence, necessarily limited and of limited utility. I accept it paints a very partial picture, but in a context where extensive data is lacking, it represents at least some objective evidence. I accept that the gym industry is of significant interest to educators trying to reach a population who may purchase PIEDs. At the same time, I note the clear evidence that Jesse bought PIEDs over the internet and that actual transactions in gyms are rarely observed.
at home).302 The internet is an increasingly popular place for the illicit supply of PIEDs, either via fake pharmaceutical sites such as online pharmacies or via illegal websites.303 International research shows that the gym environment is the main location for buying PIEDs and/or coming into contact with a supplier.304
for fitness purposes) or professional sport.310
Dr van de Ven was asked about current best practice for management by health professionals of patients who are suspected of using PIEDs. Dr van de Ven gave 300 Ex 5, Tab 67 at p. 5.
301 Ex 5, Tab 67 at p. 5.
302 Ex 5, Tab 67 at pp. 5.
303 Ex 5, Tab 67 at pp. 6-7.
304 Ex 5, Tab 67 at p. 7.
305 Ex 5, Tab 67 at p. 8.
306 Ex 5, Tab 67 at p. 8.
307 Ex 5, Tab 67 at p. 9.
308 Ex 5, Tab 67 at p. 9.
309 Ex 5, Tab 67 at p. 9.
310 Ex 5, Tab 67 at p. 9.
evidence that there is a lack of knowledge on PIEDs within the health workforce, which is the reason that she (together with Dr Eu and others) developed the SNHN GP Guide.311 Many health professionals are unsure how to engage with and support this drug-using group, and they report a lack of prevention and harm reduction materials in Australia and internationally to upskill themselves.312 Australia is “particularly lagging behind when it comes to effective measures for preventing or reducing the use of PIEDs, which is generally non-existent”.313
Particularly within the fitness industry, Dr van de Ven’s evidence is that nothing has been implemented in Australia (and internationally) despite PIEDs users and health professionals indicating that this would be an ideal environment to engage with users because most consumers will go to gyms.314 Dr van de Ven gave oral evidence that it is difficult to identify precisely what information should be available in gyms given the inadequacy of the current evidence base; in her opinion, the first step would be to conduct some sort of “roundtable” with the fitness industry, users of PIEDs, healthcare professionals and also the Ministry to discuss the various available strategies and the issue of PIEDs use more broadly and to devise an appropriate response. Presently, the fitness industry adopts a “zero tolerance” approach.315 Dr van de Ven gave oral evidence that zero tolerance is not effective in reducing or eliminating drug use and may drive users underground. I accept her evidence without reservation and intend to make a recommendation calling for some kind of “roundtable” discussions to indicate a way forward. In my view the evidence established a clear need for such a strategy.
In addition to the lack of resources, Dr van de Ven identifies that the resources and programs that do exist in Australia and internationally are generally not tested for their effectiveness and it is therefore unknown how effective they are in preventing use or reducing harm.316 Although internationally some prevention materials and programs exist, particularly focused on high school students, harm reduction programs and/or treatment and other behaviour-change interventions targeting PIEDs users “seem to be mainly absent in most other countries as well”.317 To the best of her knowledge, no research exists on the effectiveness of harm reduction measures for those using PIEDs both in Australia or internationally.318 Dr van de Ven gave oral evidence that, looking beyond PIEDs to other substances, there is considerable research on the effectiveness of a harm reduction approach in relation to drug use and that the research shows harm 311 Ex 5, Tab 67 at p. 9.
312 Ex 5, Tab 67 at p. 9.
313 Ex 5, Tab 67 at p. 10.
314 Ex 5, Tab 67 at p. 10.
315 Ex 5, Tab 67 at p. 10.
316 Ex 5, Tab 67 at p. 10.
317 Ex 5, Tab 67 at p. 10.
318 Ex 5, Tab 67 at p. 13
reduction to be very effective in reducing both the use and the side-effects of drugs.
In relation to harm minimisation programs or initiatives, Dr van de Ven is aware of only one AAS outreach program provided via Your Community Health in Melbourne.319 To the best of her knowledge, no other harm minimisation programs or initiatives exist in NSW or Australia.320 There are some resources aimed at improving knowledge on how to prevent use and/or reduce harm, generally targeted at health professionals; however, the resources in Australia tend to be focused on sports doping.321 Dr van de Van states that although this is an important issue, the majority of PIEDs use by young men is for aesthetic and lifestyle purposes and, importantly, this conflation of PIEDs use with sports doping hinders the development of harm reduction resources.322
Dr van de Ven states that PIEDs use is not just confined to the heavy weightlifting community and that not all people who use PIEDs will have evident features of PIEDs use.323 While higher prevalence numbers are “generally” seen in high-risk environments such as heavy weightlifting communities compared to more commercial gyms, Dr van de Ven states that “this could also be an issue of non- or underreporting within commercial gyms”.324 Dr van de Ven gave oral evidence that the majority of people who use PIEDs, work out at the gym regularly, but that one cannot always tell by looking at a person whether they use PIEDs. Dr van de Ven’s evidence in this respect is consistent with that of Dr Eu, Ms Stanton and WJ.325 I accept her opinion.
Dr van de Ven concludes that PIEDs users represent a group who are in need of help and who currently have limited options to obtain medical information and care.326 In Dr van de Ven’s opinion, it is therefore “key” that health services for this group are improved.327 In addition, poly-drug use is high within this community but harm reduction information on this is currently missing, as all materials are mainly focused on AAS.328 For instance, Dr van de Ven states that no information exists on the risks of using nonprescribed insulin.329 It is therefore “key” that prevention and harm reduction resources and materials are expanded beyond AAS.330 I accept her evidence in this regard.
The RACGP was invited, but declined, to comment on the report of Dr van de Ven.331 319 Ex 5, Tab 67 at p. 12 320 Ex 5, Tab 67 at p. 12 321 Ex 5, Tab 67 at p. 12 322 Ex 5, Tab 67 at p. 12 323 Ex 5, Tab 67 at p. 14 324 Ex 5, Tab 67 at p. 14.
325 WJ, Transcript 22/04/21, page 110, line 35 to page 111, line 39.
326 Ex 5, Tab 67 at p. 15.
327 Ex 5, Tab 67 at p. 15.
328 Ex 5, Tab 67 at p. 15.
329 Ex 5, Tab 67 at p. 15.
330 Ex 5, Tab 67 at p. 15.
331 Ex 5, Tabs 50E-F.
Ms Stanton
Ms Stanton is employed by Your Community Health in Victoria as a Steroid Educator.332 She has held this role for approximately 24 years.333 Ms Stanton is not aware of anyone else who carries out that role in Australia.334 Her role as a steroid educator encompasses developing harm reduction strategies for users of steroids, including providing information in relation to clean injection techniques, injection sites, infections, side effects, and guidelines as to dosage.335 Her background and expertise placed her in a unique position to assist the court.
Ms Stanton is also a TAFE certified fitness instructor.336 From 1996 to 2001 Ms Stanton was a competitive bodybuilder, during which time she “won a couple of State titles” and also placed second and third in bodybuilding competitions.337
In her statement, Ms Stanton stated that while the majority of PIEDs users are between 20 and 50 years of age, there has been a significant increase in younger users.338 Ms Stanton has seen clients younger than 20 years of age, and older than 50 years of age.339 Her clients include both males and females.340 Most of her clients work out at the gym on a regular basis.341 The three main reasons that her clients use PIEDs are for bodybuilding competitions, for their profession (e.g. personal trainers) and “significantly more for body image purposes and wanting to look a certain way”.342 Ms Stanton states that the “reasons why and who use[s] PIEDs is wide and varied” and that any reference to PIEDs use being confined to the heavy weightlifting community is “completely false”.343 Ms Stanton says that “[n]ot all users want to be huge, rather a lean athletic body that typifies images in social media drives usage”.344 Ms Stanton gave evidence that “what they’re just trying to do is just transform their body into something that they’re proud to look at and know that people are going to appreciate and look up to them for and it gives them more confident [sic] … it’s this snowball effect where they just don’t want to come off, in the end, so it’s more a desire in terms of body image addiction than for an actual reason, such as competing or anything, or a sport”.345 Ms Stanton is not aware of any service or program that currently exists to help a person come off a cycle of steroid 332 Ex 5, Tab 69 at [3]; Ms Stanton, Transcript 18/06/21, page 2, lines 1 to 40, page 3, lines 22 to 27.
333 Ibid.
334 Ms Stanton, Transcript 18/06/21, page 6, line 48 to page 7, line 19.
335 Ms Stanton, Transcript 18/06/21, page 8, line 7 to page 9, line 2.
336 Ms Stanton, Transcript 18/06/21, page 3, lines 1 to 3.
337 Ms Stanton, Transcript 18/06/21, page 3, lines 5 to 11.
338 Ex 5, Tab 69 at [6].
339 Ms Stanton, Transcript 18/06/21, page 3, lines 34 to 38, page 4, line 29.
340 Ms Stanton, Transcript 18/06/21, page 3, lines 41 to 44.
341 Ms Stanton, Transcript 18/06/21, page 6, lines 29 to 31.
342 Ex 5, Tab 69 at [7].
343 Ex 5, Tab 69 at [13].
344 Ex 5, Tab 69 at [15].
345 Ms Stanton, Transcript 18/06/21, page 6, lines 20 to 27.
use.346
They mightn’t be the big bulky guys or the really huge guys but there’s so many small framed men and women that have got … just that real fit, leaner muscle look that are using steroids … there’s steroid use in pretty much most gyms, just on a different level”.348 In Ms Stanton’s view, “for gyms to sit there and say they’ve got no steroid users in their gym is wrong”.349
Since Ms Stanton began working as a steroid educator, there has been a significant increase in black market products used by her clients.350 The strength of the available products has also increased. Together with backyard manufacturing, it is difficult if not impossible to determine the quality, strength and legitimacy of the product.351 Ms Stanton says that there has been a general increase in use of PIEDs by both males and females.352 Her clients obtain PIEDs “through contacts, through mates or online, black market online, the dark web … or also personal trainers”.353 Ms Stanton gave evidence that “their whole life is … kept behind closed doors and they don’t want people knowing because of the stigma that’s attached”.354 A “lot of these clients that I have will take it to their grave that they’re natural and they could be standing there as large as life but will refuse to admit to anybody that they’re using anything”.355
In Ms Stanton’s experience, the use of insulin is extremely dangerous but “not unusual” and while she always endeavours to dissuade people from using insulin, the “perceived need to grow rapid lean muscle mass means users are willing to take the risk”.356 Ms Stanton said that a lot of her clients hear that the top bodybuilders are using it and that it will make them bigger, so they want to use it.357 Some are aware of the risks, while others “go into it very blindly”.358 As to steroids more broadly, Ms Stanton gave evidence that users get their information from online forums and websites, Google, and through word 346 Ms Stanton, Transcript 18/06/21, page 10, lines 7 to 11.
347 Ms Stanton, Transcript 18/06/21, page 12, lines 32 to 36, lines 47 to 49.
348 Ms Stanton, Transcript 18/06/21, page 12, lines 36 to 47, page 14, lines 10 to 18, page 17, lines 49 to 50, page 18, lines 46 to 48.
349 Ms Stanton, Transcript 18/06/21, page 13, lines 28 to 29.
350 Ex 5, Tab 69 at [8].
351 Ex 5, Tab 69 at [8]; Ms Stanton, Transcript 18/06/21, page 4, line 50 to page 5, line 34 352 Ex 5, Tab 69 at [9] 353 Ms Stanton, Transcript 18/06/21, page 4, lines 42 to 50.
354 Ms Stanton, Transcript 18/06/21, page 7, lines 24 to 28.
355 Ms Stanton, Transcript 18/06/21, page 11, lines 15 to 18; see also page 19, line 19.
356 Ex 5, Tab 69 at [16].
357 Ms Stanton, Transcript 18/06/21, page 14, lines 35 to 38.
358 Ms Stanton, Transcript 18/06/21, page 15, lines 8 to 13.
of mouth, which Ms Stanton likened to “the blind leading the blind”.359
Ms Stanton was asked to comment upon Anytime Australia’s initiative of limiting the capacity of dumbbells to a maximum weight of 60kg. Ms Stanton believes that capping the weight of dumbbells to deter the “heavy” weightlifting community from attending Anytime Fitness centres is “futile and … a total waste of time”.360 Ms Stanton said that based on her observations, most of the “big guys” will lift dumbbells of 35 to 50kg but not many would lift more than 60kg, and that while there are gyms that stock dumbbells heavier than 60kg, they “just sit and collect dust anyway”.361 Ms Stanton has not seen anybody lift over 60kg in dumbbells, even in a hard core gym.362 It is “very rare”.363 With dumbbells of that weight, Ms Stanton gave evidence that one needs to be “very careful that you’ve got a good spotter, and … that you don’t damage your actual shoulder and pec”.364 Ms Stanton said that weights training can be more controlled using barbells and other machines that are much heavier than a 60kg dumbbell and will “accommodate all the different muscles to your chest”, so that the absence of dumbbells over 60kg “wouldn’t deter bigger guys from coming into that facility, because they can utilise all these other things to lift even heavier than that, in any case”.365 I accept her evidence in this regard.
Ms Stanton impressed the court as a knowledgeable and experienced outreach worker.
Her wealth of experience over twenty years and her personal knowledge of the fitness industry made her evidence particularly compelling.
Conclusion regarding PIEDs
359 Ms Stanton, Transcript 18/06/21, page 15, lines 19 to 26.
360 Ex 5, Tab 69 at [13].
361 Ms Stanton, Transcript 18/06/21, page 16, lines 3 to 14.
362 Ms Stanton, Transcript 18/06/21, page 16, lines 45 to 46.
363 Ms Stanton, Transcript 18/06/21, page 17, lines 16 to 21.
364 Ms Stanton, Transcript 18/06/21, page 17, lines 1 to 4.
365 Ms Stanton, Transcript 18/06/21, page 16, line 10 to page 17, line 21 366 Mr Peil, Transcript 22/04/21, page 26, lines 21 to 22.
Common to the expert evidence given by Dr Eu and Dr van de Ven was the need for the fitness industry in Australia to play a role in engaging with PIEDs users, including by way of harm reduction messaging, and for there to be increased awareness of and attention to the issue on the part of the government and the fitness industry. I accept the expert evidence of both Dr Eu and Dr van de Ven as to the utility of a dialogue or “roundtable” between the Ministry, the fitness industry and healthcare professionals and intend to make a recommendation in this regard.
I note that Anytime Australia accepts it has some role in relation to training and education and it facilitates the delivery of regular, externally-driven educational sessions by subject matter experts, both via webinars and through sessions at annual conferences.367 Mr Smith gave evidence of his understanding that the webinars are typically recorded and hosted on the ‘Dashboard’, which is the franchisee communications portal.368 Anytime Australia selects which topics will be addressed in those sessions, with input from its franchisees.369 The court was informed that Anytime Australia intends to provide franchisees with a webinar series having a specific focus on drug and alcohol use within the gyms, which will among other things provide resources for further education about the use of PIEDs.370 That series will, however, focus upon the employment obligations of franchisees.371 There remained a general lack of enthusiasm to get involved in educating patrons about PIEDs in the gym setting.372
In my view there appears to have been an historic reluctance by those in the fitness industry to talk openly about the extent of PIED use in gyms and fitness centres.
ATGPPMS or Anytime Australia are likely to be no different, but also no worse in this regard. While various witnesses spoke about the fact that you need to use PIEDs to compete in body building competitions,373 talking about PIED use in regular gyms appeared to be somewhat taboo. Both Mr Hrobat and Mr Peil gave evidence of “zero tolerance” policies in relation to PIED use374. Mr Hrobat stated that although he was not aware of any specific instances relating to the sale or use of drugs on Anytime Fitness premises, he would not hesitate to take action if he became aware of it.375 Mr Peil told the court that he had cancelled multiple memberships when he has suspected a patron is training in a manner that “is influenced by PIEDs.”376 In Mr Peil’s view the industry has worked hard to and done well at reducing PIED use, although “unfortunately it’s never 367 Ex 1 Vol 2, Tab 33C at p. 4.
368 Mr Smith, Transcript 22/04/21, page 63, lines 22 to 24.
369 Mr Smith, Transcript 22/04/21, page 64, lines 4 to 9.
370 Ex 1 Vol 2, Tab 33C at p. 4.
371 Ex 1 Vol 2, Tab 33C at pp. 3-4; Mr Smith, Transcript 22/04/21, page 65, lines 4 to 8.
372 See for example Mr Peel Transcript 22/04/21, page 32, lines 37 to 39.
373 Mr Peil, Transcript 22/04/21, lines 10-20; WJ, Transcript 22/04/21, lines 5 to 25.
374 Mr Peil, Transcript 22/04/21, page 24, line 45ff.
375 See for example his discussion of a suspected case at Transcript 19/4/21, page 95, line 5 to 15.
376 Mr Peil, Transcript 22/04/21, page 25. lines 30 to 32.
going to be totally eliminated from society”.377
To squarely engage with the issue is not to condone or encourage use.378 One cannot help but be reminded of the positive health benefits achieved by harm reduction strategies and education in relation to “street drugs” and anticipate their usefulness in this context.
In Mr Peil’s opinion, the use of PIEDs usually masks deeper issues. He explained that users have usually “been the victim of bullying”, “have massive self-esteem issues” or “more general mental health issues”.379 In his view these underlying issues need to be addressed, rather than the use itself. In his view introducing educational material into the gym about the dangers of PIEDs is a “band aid”380and unlikely to be of any benefit. He suggested that people already know of the dangers and continue to use these substances.381 While I understand his point of view, I am convinced by the experts on this issue. Increased attention to open harm reduction messaging needs joint consideration by experts in the field and those involved in the fitness industry.
PIED use is unlikely to go away. Contrary to Mr Peil’s view, the expert evidence indicates it may be increasing. I am satisfied the evidence establishes that comprehensive harm reduction health strategies are called for.
Systems and procedures with respect to bathroom checks
377 Mr Pel, Transcript 22/04/21, page 32, lines 47 to 49.
378 Mr Peil, Transcript 22/04/21, page 32, lines 30 to 40: “Q. I'm just interested in what your view is on introducing, for example, educational material within the confines of the gym that would educate members about the dangers of PIEDs and other illicit substances?
A. If that's the finding of your Honour in this Court, then we will be abide by it. Would I proactively go and do that, and the answer is no.” 379 Mr Peil, Transcript 22/04/21, page 26, lines 5 to 15.
380 Mr Peil, Transcript 22/04/21, page 32, line 42.
381 Mr Peil, Transcript 22/04/21, page 32, line 42.
Counsel assisting submitted that as at November 2017 neither Anytime Australia nor Anytime Fitness Castle Hill had in place adequate systems, training or procedures to ensure the safety of occupants of the bathrooms. As at November 2017 Anytime Fitness Castle Hill had no system in place for recording which bathrooms had been checked and cleaned, either by staff or by the external cleaners. Staff were not given any training as to what they were to do in the event that a bathroom door was locked and the bathroom in question could not be accessed for checking or cleaning. There were no formal or established escalation procedures for either staff or external cleaners to follow in order to confirm the safety or wellbeing of the occupants of bathrooms382, in circumstances where a bathroom door was locked for an extended period, such as knocking or calling out to determine whether the bathroom was in fact occupied, calling out to determine whether any occupant was unwell or incapacitated, contacting security or emergency services or gaining entry to the bathroom itself.
In particular, as at November 2017 there was no system or procedure of any kind in place for checking the bathrooms at the end of staffed hours each day. The unstaffed hours during which Anytime Fitness Castle Hill nonetheless remained open to the public (being 14 hours on a Monday, Tuesday, Wednesday and Thursday night; 15 hours on a Friday night; and 44 hours between Saturday afternoon and Monday morning) presented a significant period of time for a person to remain undetected inside a bathroom, and a corresponding risk to the safety of the occupants of those bathrooms.
The court heard that Mr Smith chaired the Risk Committee, which is an internal group at the Collective Wellness Group head office whose role is to identify risks within the business (including Anytime Australia) and then ensure that measures were put in place to address those risks, including safety and security risks..383 Mr Smith was not aware of the Risk Committee conducting any assessment of the risk to occupants of the bathrooms at Anytime Fitness gyms, nor any assessment of the risk to patrons during unstaffed hours.384 It is surprising that a 24 hour gym business, which was designed to be unstaffed for lengthy periods, had not considered these risks.
Counsel for ATGPPMS was concerned that counsel assisting’s submissions did not give sufficient prominence to the safety systems which were in place at the time of Jesse’s death. Counsel for ATGPPMS submitted that there were a number of significant measures which had been devised to ensure patron safety. These included, but were not limited to, emergency buttons in bathrooms which were regularly audited, personal 382 The practice described by Cleaner CC of recording such matters in the Rymax cleaning book and/or reporting them to the manager does not fall into this category.
383 Mr Smith, Transcript 22/04/21, page 57, lines 1 to 9.
384 Mr Smith, Transcript 22/04/21, page 57, lines 11 to 17.
security devices which were available for use especially after hours, and a clearly labelled emergency button in the foyer entry. Further he submitted that regular cleanliness checks by both staff and after hours by the attendance of cleaners provided some protection. Prior to November 2017 there had been no incident involving death or incapacity in an Anytime Fitness bathroom facility. Counsel for Anytime Australia submitted that the systems in place were sufficient to meet the rare occasions of a patron being in physical difficulty in a bathroom. I accept that the provision of an emergency button in the bathroom was a significant safety measure and one mandated by Anytime Australia. Unfortunately, Jesse appears to have lost capacity quite quickly and was thus unable to use it. I note that the CCTV footage showed very limited engagement by gym staff with the testing of the emergency buttons. If the bathroom they wished to test the emergency button of was occupied, they simply skipped that check on that occasion. In my view a more robust safety system was required.
Cleaning services at Anytime Fitness Castle Hill
The attendance of cleaners after hours was identified as part of the “safety system” by counsel for Anytime Fitness Castle Hill. It was necessary to closely examine the provision of this service and analyse the protection it provided to patrons. As at November 2017, a company called Rymax Cleaning Services Pty Ltd (Rymax) was contracted to provide cleaning services at Anytime Fitness Castle Hill pursuant to an agreement entered into with ATGPPMS in or around 2015.385 Under that agreement, cleaning services were to be provided six nights per week (from Sunday to Friday) between approximately 10:00pm and 5:00am.386
Rymax, in turn, sub-contracted those cleaning services to a company called SSD Global, whose director was Jimmy Lee.387 SSD Global then sub-contracted to two individuals, Cleaner CC and Cleaner SS, to undertake those services pursuant to a verbal agreement that was in place between approximately November 2017 and June 2018.388 Cleaner CC and Cleaner SS carried out the cleaning services at three Anytime Fitness centres: Anytime Fitness Castle Hill, Norwest and another Anytime Fitness centre in Castle Hill.389 As at 17 November 2017, Mr Hrobat was not aware of the sub-contracting arrangements between Rymax and SSD Global, or between SSD Global and Cleaner CC / Cleaner SS.390 Anytime Australia did not have any role in overseeing the provision 385 Ex 1 Vol 2, Tab 34 at [A1].
386 Ex 1 Vol 1, Tab 31 at [5(a)].
387 Ex 1 Vol 2, Tab 34 at [A3]; Vol 2, Tab 36 at [3]-[4].
388 Ex 1 Vol 2, Tab 38 at [3].
389 Cleaner CC, Transcript 20/04/21, page 8, lines 43; Cleaner SS, Transcript 20/04/21, page 29, lines 28 to 34, line 42; Cleaner AK, Transcript 20/04/21, page 45, lines 41 to 44.
390 Mr Hrobat, Transcript 19/4/21, page 50, lines 26 to 34, page 83, lines 17 to 23.
of contracted cleaning services at Anytime Fitness centres, which was instead simply a matter for each individual gym.391
According to both Mr Hrobat and the director of Rymax, Ryan Maxwell, as at November 2017 neither Rymax (nor its sub-contractors) maintained any log or record as to which bathrooms had been cleaned during the course of their work at Anytime Fitness Castle Hill.392 Mr Hrobat says that Rymax did not provide any records of completed tasks to Anytime Fitness Castle Hill.393 Mr Hrobat says that in the event a bathroom was occupied during the cleaning process, Rymax cleaners were given a verbal direction from the General Manager at Anytime Fitness Castle Hill to move on to the next bathroom and to circle back and clean the bathroom once it had been vacated.394 As at November 2017, Rymax (and its sub-contracted cleaners) were not given any instructions from Anytime Fitness Castle Hill about what to do if a bathroom was unable to be accessed and cleaned during the full course of their shift, and there was no associated procedure in place at that time.395 For instance, cleaners were not instructed or directed to knock on locked bathroom doors, or to call out to any occupants of those bathrooms, or to notify management or security or emergency services in such circumstances.396
Mr Maxwell stated that Rymax was not provided with any training or copies of any policies by Anytime Fitness Castle Hill with respect to the safety of patrons, including occupants of the bathrooms; nor did Rymax provide SSD Global with any training or policies in relation to that topic.397 Rymax carried out fortnightly inspections of the subcontractors’ cleaning and provided SSD Global with the general cleaning scope of works which Rymax had agreed with Anytime Fitness Castle Hill.398 Mr Maxwell stated that if cleaners found that a bathroom was locked, they would think that it was in use and would move on to another task before coming back to check if they could access and clean it.399 But in Mr Maxwell’s words, “cleaners weren’t there to monitor the use of the cubicles”.400 Consistent with Mr Hrobat’s evidence, Mr Maxwell says that there was no escalation process in place in the event that one of the bathrooms was unable to be accessed by Rymax or its subcontractors.401
In November 2017 the cleaners at Anytime Fitness Castle Hill used a book called the Rymax cleaning book as a means of communication between the gym, Rymax and its 391 Mr Peil, Transcript 22/04/21, page 20, line 45 to page 21, line 4; Mr Hrobat, Transcript 19/04/21, page 83, line 44 to page 84, line 15.
392 Ex 1 Vol 1, Tab 31 at [9]; Vol 2, Tab 34 at [A8]; see also Mr Hrobat, Transcript 19/4/21, page 85, lines 23 to 41.
393 Ex 1 Vol 1, Tab 31 at [9(a)].
394 Ex 1 Vol 1, Tab 31 at [8(a)-(b)]; Mr Hrobat, Transcript 19/4/21, page 84, lines 33-34 395 Mr Hrobat, Transcript 19/4/21, page 84, lines 40 to 50.
396 Mr Hrobat, Transcript 19/4/21, page 85, lines 1 to 12; Cleaner CC, Transcript 20/04/21, page 13, lines 20 to 44; Cleaner SS, Transcript 20/04/21, page 32, line 43 to page 33, line 44; see also Cleaner AK, Transcript 20/04/21, page 47, lines 10 to 12.
397 Ex 1 Vol 2, Tab 34 at [A2]-[A3].
398 Ex 1 Vol 2, Tab 34 at [A3]-[A4].
399 Ex 1 Vol 2, Tab 34 at [A6a].
400 Ex 1 Vol 2, Tab 34 at [A6c].
401 Ex 1 Vol 2, Tab 34 at [A6b].
cleaners given that the gym was unstaffed when cleaning services were provided.402 That book was kept onsite.403 Mr Hrobat says that the cleaning book typically contained any cleaning issues that needed to be addressed that day, such as dirty mirrors.404
According to Cleaner CC, he and Cleaner SS were asked by Mr Lee when they first commenced their duties in around November 2017405 to leave comments to the staff in the Rymax cleaning book to inform them when supplies were out, and also when they had trouble fulfilling their task due to circumstances such as a blocked toilet or locked doors.406 Cleaner CC said in his statement that in the event that one of the bathrooms was unable to be accessed by cleaning staff for the duration of their shift, they would leave a comment in the Rymax cleaning book and/or report it to the manager by a text message or a telephone call, but there was otherwise no specific escalation process in place.407 Cleaner CC did not suggest that his practice of leaving comments in the Rymax cleaning book was contingent upon Mr Lee telling him to do so on each occasion that Cleaner CC had trouble fulfilling his task; nor would such a process sit comfortably with Cleaner CC’s evidence that Mr Lee gave that very instruction on a global basis when Cleaner CC first commenced work as a cleaner at Anytime Fitness Castle Hill. Having regard to that initial instruction, it would make little sense for Cleaner CC nonetheless to refrain from leaving any record in the Rymax cleaning book unless such a direction was specifically repeated by Mr Lee each time the issue arose.
That practice was explored with Cleaner CC during his oral evidence, which was given with the aid of an interpreter. Cleaner CC gave evidence that when he could not clean one of the bathrooms at Anytime Fitness Castle Hill as a result of an issue such as a locked door or blocked toilet, it was his usual practice to record that in the Rymax cleaning book.408 That evidence is consistent with his written statement; again, it was not conditioned by the need for any further instruction or direction from Mr Lee. When asked why he would do that, Cleaner CC explained that “I had an obligation to clean the bathrooms so whenever I was unable to complete the job because for example the door was locked or the toilet was blocked or something like that I would have had to leave - provide some explanation as to why I could not complete my job so that’s why I would leave that record in the Rymax book and then I would call the Korean manager also to notify of him [sic] of the circumstances”.409
Cleaner CC’s use of the Rymax cleaning book for those purposes is supported by the 402 Ex 1 Vol 1, Tab 31 at [6(b)].
403 Ex 1 Vol 2, Tab 34 at [A5].
404 Ex 1 Vol 1, Tab 31 at [6(b)].
405 Cleaner CC, Transcript 20/04/21, page 13, lines 5 to 12.
406 Ex 1 Vol 2, Tab 38 at [5].
407 Ex 1 Vol 2, Tab 38 at [7].
408 Cleaner CC, Transcript 20/04/21, page 20, lines 29 to 38.
409 Cleaner CC, Transcript 20/04/21, page 20, lines 35 to 40.
evidence of Cleaner CC’s wife, Cleaner AK, who sometimes assisted Cleaner CC with his cleaning duties. Cleaner AK said that she “knew there was something there that was for the purpose of communicating with Anytime Fitness … and the reason why I remember that much in this respect when I actually don’t go there often is because my husband would sometimes ask me how to say, for example that the toilet is blocked”.410
Cleaner CC later said that his first step would be to contact Mr Lee, as well as leaving a record in the book.411 He would either telephone Mr Lee or send him text messages, and sometimes photographs; when asked whether he used the book or mainly called Mr Lee, Cleaner CC said that “usually” when any of these problems occurred he would in the first instance telephone Mr Lee.412 When Cleaner CC contacted Mr Lee about these issues, that contact usually took place during Cleaner CC’s working hours.413 Cleaner CC gave evidence that nobody told him to telephone Mr Lee in those circumstances, but that “it was my duty to clean the bathroom but if it’s locked and I … can’t clean it and you know that’s part of my job”.414 I accept his evidence that his focus was on the fact that a locked door might prevent him from undertaking the tasks he was paid for, rather than any issue of consumer safety.
It was subsequently put to Cleaner CC that if “any further steps needed to be taken” when an issue arose such as a blocked toilet or closed bathroom door, he would rely on what Mr Lee told him to do.415 The nature of the “further steps” embraced by that proposition was not identified. Cleaner CC’s response to that proposition was “[y]es that would be right. Yes, so if Mr Je Min Lee had given me those instructions or certain instructions yes I would have followed those instructions”.416 Viewed in the context of Cleaner CC’s evidence as a whole, that answer simply indicates that if Mr Lee had given him particular instructions to take some further step when a bathroom door was locked or a toilet was blocked, then Cleaner CC would have followed them. It does not derogate from Cleaner CC’s evidence as to his practice of recording those matters in the Rymax cleaning book in accordance with the initial instruction given to him by Mr Lee when he commenced at Anytime Fitness Castle Hill. Thus, when it was then put to Cleaner CC that he would “only” write in the Rymax cleaning book if Mr Lee told him to do so, Cleaner CC said that he was “really not capable of recalling you know to, to, to that extent of details”.417 410 Cleaner AK, Transcript 20/04/21, page 47, lines 25 to 31. Note that Cleaner SS is able to write in English without the assistance of a translator: Cleaner SS, Transcript 20/04/21, page 28, lines 41 to 48.
411 Cleaner CC, Transcript 20/04/21, page 20, line 45 to page 21, line 7; page 26, lines 34 to 36.
412 Cleaner CC, Transcript 20/04/21, page 12, lines 21 to 34.
413 Cleaner CC, Transcript 20/04/21, page 12, lines 46 to 50.
414 Cleaner CC, Transcript 20/04/21, page 12, lines 38 to 44.
415 Cleaner CC, Transcript 20/04/21, page 26, lines 38 to 39.
416 Cleaner CC, Transcript 20/04/21, page 26, lines 40 to 42.
417 Cleaner CC, Transcript 20/04/21, page 26, lines 47 to 48.
The contractual arrangement between Rymax and Anytime Fitness Castle Hill concluded in June 2018.418 Cleaning services at Anytime Fitness are now provided by SSD Pro Pty Ltd pursuant to a contractual agreement with ATGPPMS.419 The cleaners’ attendance on 16-17 November 2017
At 10:39pm on 16 November 2017, Cleaner CC and Cleaner SS tagged in at Anytime Fitness Castle Hill.420 They were joined on that occasion by Cleaner AK.421 Cleaner CC, Cleaner SS and Cleaner AK cleaned in and around the bathrooms adjacent to that occupied by Jesse from approximately 12:02am to 2:03am on 17 November 2017.
Cleaner CC vacuumed the corridor outside the bathroom doors between about 12:14am and 12:16am. He also mopped the bathroom two doors down from the one occupied by Jesse at around 12:18am and 12:27am. Cleaner AK mopped the bathroom adjacent to Jesse at approximately 12:39am422 and again at 1:54am. Meanwhile, at about 1:06am Cleaner SS took the rubbish out of the third bathroom in that corridor.423
419 Ex 1 Vol 1, Tab 31.3 at [3].
420 Ex 1 Vol 1, Tab 29B at p. 1.
421 Ex 1 Vol 2, Tab 40 at [2]; Cleaner AK, Transcript 20/04/21, page 44, lines 46 to 48.
422 Cleaner AK, Transcript 20/04/21, page 49, line 29.
423 Cleaner SS, Transcript 20/04/21, page 37, lines 7 to 13.
424 See Cleaner CC, Transcript 20/04/21, page 17, line 5 to page 18, line 36.
of the bathroom area, in order to make sure that as part of carrying out her duties that evening she cleaned each of the bathrooms in the area.425 Cleaner SS cannot recall whether she heard any sounds from inside the bathroom but gave evidence that “I should think if there was any sound from inside I would have done something”.426 She did not call out to see whether there was someone inside the bathroom;427 d. at approximately 1:26am, Cleaner AK approaches the door of Jesse’s bathroom with her mobile telephone in her hand. She takes several photographs of the door, at various distances from that door, and then moves towards the right of screen and ultimately out of view. She then appears to sit down with Cleaner SS across the corridor from the bathroom door.
It appears from the CCTV footage that Cleaner SS may have been sitting across the corridor from (and facing towards) Jesse’s bathroom between about 12:11am and 12:25am, and again between approximately 1:34am and 1:49am. Her shoe is visible at various points within those two windows of time; Cleaner SS also agreed that she can be seen holding a mobile telephone in her hands during the latter window.428
Cleaner CC gave evidence that he does not recall the night of 16-17 November 2017.429 He has no specific recollection of talking to Mr Lee that night about the locked bathroom door, though he believes he would have done so.430 In that respect, the telephone records of Cleaner CC and Mr Lee show that there was relevantly no telephone call or text message through the carrier (as distinct from other platforms or applications such as WhatsApp, which are not captured by the telephone records) between Cleaner CC and Mr Lee during Cleaner CC’s shift on 16-17 November 2017.431 As to the Rymax cleaning book, Cleaner CC cannot recall whether he made any record that night to indicate that he had been unable to clean the bathroom in question,432 though in his statement Cleaner CC said that he was “certain” that he would have done so.433 Cleaner CC ultimately has no precise recollection of what steps he took on 16-17 November 2017.434
Cleaner SS gave evidence (through an interpreter) that she has never contacted Mr Lee herself by telephone or email or by any other means.435 Cleaner AK similarly gave 425 Cleaner SS, Transcript 20/04/21, page 39, lines 35 to 44.
426 Cleaner SS, Transcript 20/04/21, page 39, lines 46 to 49.
427 Cleaner SS, Transcript 20/04/21, page 40, lines 20 to 23.
428 Cleaner SS, Transcript 20/04/21, page 36, lines 10 to 48, page 41, lines 6 to 8 and lines 18 to 41.
429 Cleaner CC, Transcript 20/04/21, page 17, lines 34-35, page 18, lines 35 to 36.
430 Cleaner CC, Transcript 20/04/21, page 19, lines 12 to 15; Ex 1 Vol 2, Tab 38 at [9].
431 Ex 5, Tabs 75 and 76.
432 Cleaner CC, Transcript 20/04/21, page 19, lines 26 to 28, page 21, lines 13 to 17.
433 Ex 1 Vol 2, Tab 38 at [9].
434 Cleaner CC, Transcript 20/04/21, page 20, line 42 to page 21, line 11.
435 Cleaner SS, Transcript 20/04/21, page 29, lines 19 to 22.
evidence, with the aid of an interpreter, that she has never had contact with Mr Lee.436 Nor did Cleaner AK have any contact with Mr Maxwell during the period that Cleaner CC provided cleaning services at Anytime Fitness Castle Hill.437
Cleaner AK does not recall whether she took any photographs or video footage of the bathroom on the night of 16-17 November 2017.438 However, having reviewed the CCTV footage, Cleaner AK says that it “seems” that she took a photograph of the locked door.439 Cleaner AK cannot recall what she did with those photographs but believes she would have provided them to Cleaner CC “so that he could use them as proof that the door was locked”.440 In that respect, Cleaner CC says that he probably asked Cleaner AK to take a photograph of the door as proof that they could not access the bathroom for cleaning.441 Cleaner AK cannot remember taking any other steps in relation to the bathroom in question after discovering that it was locked.442 Cleaner AK does not remember whether she ever wrote a message in the Rymax cleaning book to say that one of the bathrooms could not be cleaned due to a locked bathroom door.443
Cleaner SS says in her statement that she did not make any telephone calls or take any other steps to inform anybody that the bathroom in question was locked on the night of 16-17 November 2017, nor did she take any photographs or video of the bathroom door.444 She does not recall any conversations with Cleaner CC or Cleaner AK about the bathroom during their shift.445 In her oral evidence, Cleaner SS said that if an occasion arose where she was not able to perform her cleaning duties she would in the first instance raise that matter with Cleaner CC.446 She would not herself have recorded any message in the Rymax cleaning book.447 Cleaner SS gave evidence that she cannot recall the details of the night of 16-17 November 2017448 but that “from the position of a cleaner whether there is someone inside a bathroom cubicle or, or toilet or not or, or why the door is locked is, is really not of importance”.449
The evidence of Cleaner CC, Cleaner SS and Cleaner AK reveals that in the event of a locked bathroom door during the course of their shift at Anytime Fitness Castle Hill, their primary concern was the discharge of their cleaning duties and it was that concern which informed any steps that those individuals took by way of response to a locked bathroom 436 Cleaner AK, Transcript 20/04/21, page 46, lines 33 to 36, page 53, lines 29 to 31.
437 Cleaner AK, Transcript 20/04/21, page 46, line 49 to page 47, line 3.
438 Ex 1 Vol 2, Tab 40 at [4(f)].
439 Ex 1 Vol 2, Tab 40 at [4(f)].
440 Cleaner AK, Transcript 20/04/21, page 51, lines 18 to 22, page 52, lines 20 to 35.
441 Ex 1 Vol 2, Tab 38 at [9(c), (f)].
442 Ex 1 Vol 2, Tab 40 at [4(g)].
443 Cleaner AK, Transcript 20/04/21, page 48, lines 14 to 16.
444 Ex 1 Vol 2, Tab 42 at [9].
445 Ex 1 Vol 2, Tab 42 at [9].
446 Cleaner SS, Transcript 20/04/21, page 31, lines 42 to 50, page 32, lines 10 to 12.
447 Cleaner SS, Transcript 20/04/21, page 32, lines 4 to 8, page 42, line 43.
448 Cleaner SS, Transcript 20/04/21, page 37, line 33.
449 Cleaner SS, Transcript 20/04/21, page 38, lines 12 to 14.
door. Relevantly, Cleaner CC and Cleaner SS were not given any instructions or training to check on the welfare of any occupant of such a bathroom. Neither Cleaner CC nor Cleaner AK knew how to unlock the bathroom door from the outside; Cleaner CC’s belief was that “there was no way to open the door from the outside”.450
Cleaner CC was not notified that a young man had been inside the bathroom on the night of 16-17 November 2017, who had subsequently died, until sometime in 2019.451 Cleaner SS likewise found out some time in 2019 following a telephone call from Cleaner AK, and “had no recollection of these events prior to being notified that this had happened”.452 That is, both Cleaner CC and Cleaner SS continued to work at Anytime Fitness Castle Hill six nights per week for approximately seven months and neither of them were told during that time about the incident involving Jesse.453 Cleaner AK thinks she was notified some time in 2019 by way of a telephone call from Mr Maxwell who said “that he only found out about it himself just then. And he said the police should be contacting us in due course. So, so he told us to expect a call from the police”.454 Mr Maxwell told Cleaner AK that he was “very surprised himself”; Cleaner AK’s evidence was “that’s why I remember this. Because at the time I, I was very surprised to hear this as well”.455
Mr Hrobat was asked whether he made any inquiries of the cleaners after Jesse was discovered on 17 November 2017 in order to ascertain whether they had any relevant information about the night of 16-17 November 2017. Mr Hrobat gave evidence that he made inquiries of Mr Maxwell within a week or two after the incident (at which stage Mr Hrobat believed that Mr Maxwell’s own employees had undertaken the relevant cleaning) and asked for “any information he could give us”.456 Mr Hrobat says that he did not hear back from Mr Maxwell in relation to that inquiry, and that he never followed up with Mr Maxwell because “I assumed that he’d get back to me if he had any more information or any evidence, he’d let us know”.457
I find it very difficult to understand why the cleaners were not spoken to by Anytime Fitness staff in the days after the incident. It should have been immediately clear that a change in the system could decrease the chance of a future tragedy. That they continued cleaning during the following period without that information is extraordinary. While cleaners should not be expected to bear the brunt of a safety system, their work gives them the opportunity to alert others of potential risk as part of a more broadly conceived 450 Cleaner CC, Transcript 20/04/21, page 19, lines 17 to 24; Cleaner AK, Transcript 20/04/21, page 51, lines 28 to 30.
451 Cleaner CC, Transcript 20/04/21, page 21, lines 48 to 49.
452 Cleaner SS, Transcript 20/04/21, page 43, lines 4 to 11.
453 Cleaner CC, Transcript 20/04/21, page 22, lines 1 to 21; Cleaner SS, Transcript 20/04/21, page 43, lines 13 to 17.
454 Cleaner AK, Transcript 20/04/21, page 52, lines 39 to 43, page 53, line 3.
455 Cleaner AK, Transcript 20/04/21, page 53, lines 15 to 20.
456 Mr Hrobat, Transcript 19/4/21, page 50, line 1ff.
457 Mr Hrobat, Transcript 19/4/21, page 50, line 46 to page 51, line 7.
safety system.
There is no clear evidence to establish that Cleaner CC in fact left a record in the Rymax cleaning book on 17 November 2017 to identify that the cleaners had been unable to access one of the bathrooms overnight due to the locked door. Mr Hrobat told the court that he was not aware of any comments being left in the Rymax cleaning book as at November 2017 to that effect.458 Mr Hrobat gave evidence that he has some memory of one of his staff checking the book on 17 November 2017, that it may have been his supervisor (though he is not sure) and that his supervisor did not inform him that there was any relevant message in the Rymax cleaning book on that date.459
Mr Allen was not required to check the Rymax cleaning book as part of his role, and it was never his practice to do so.460 As for Ms Thiessen, she would usually only check it if she had seen something that needed cleaning or if she had made an entry in the book and was waiting for a follow-up; she did not otherwise routinely check the Rymax cleaning book and she was never instructed or trained to do so.461 Ms Thiessen did not check the Rymax cleaning book during her shift on 17 November 2017 (or subsequently, in relation to that day), but gave evidence that she was “pretty sure someone looked at it” and she believed it to be the supervisor Mr Ed Abella.462 Ms Thiessen does not herself recall ever seeing any comment in the Rymax cleaning book saying that the cleaners had been unable to clean one of the bathrooms because of a locked door.463 That may be explicable on the basis that Ms Thiessen did not routinely check that book. It may also be that the precise issue of a bathroom door being locked for the full duration of the cleaners’ shift had not arisen on many occasions at Anytime Fitness Castle Hill during the seven-month period that Cleaner CC and Cleaner SS carried out the cleaning services; Cleaner SS could recall only one other such occasion, when the door had an “Out of order” sign affixed to it.464 Cleaner CC could not recall precisely, though he believed there were “times when those things happened”.465 Cleaner AK could not recall any other examples.466
The Rymax cleaning book has since been discarded. Rymax does not retain copies of that book.467 I accept that had the book contained some reference to the door being locked and had that notation been seen by a staff member and then pursued, it is possible that Jesse could have been located earlier. But it is important to note that the 458 Mr Hrobat, Transcript 19/4/21, page 86, lines 45 to 50.
459 Mr Hrobat, Transcript 19/4/21, page 87, lines 20 to 45.
460 Mr Allen, Transcript 21/04/21, page 15, lines 5 to 18.
461 Ms Thiessen, Transcript 21/04/21, page 37, lines 35 to 46.
462 Ms Thiessen, Transcript 21/04/21, page 40, line 35 to page 41, line 6.
463 Ms Thiessen, Transcript 21/04/21, page 39, line 42 to page 40, line 2.
464 Cleaner SS, Transcript 20/04/21, page 32, lines 18 to 39.
465 Cleaner CC, Transcript 20/04/21, page 13, lines 14 to 18.
466 Cleaner AK, Transcript 20/04/21, page 48, line 33 to page 49, line 8.
467 Ex 1 Vol 2, Tab 34 at A5.
book was primarily used to communicate cleaning issues such as the need for soap or that toilet paper was running low, it was not conceived of being part of a broader safety system. Even if that system had been working correctly, it would be inadequate to deal with the identified risk. A mechanism which supports cleaners to identify and make a timely response to the risk implicit in a locked bathroom door should not be grounded in a system involving leaving a note for gym staff to action the following day.
Bathroom checks by staff at Anytime Fitness Castle Hill
In November 2017 Anytime Fitness Castle Hill had a “daily tasks document” which was handed to each staff member upon the start of their employment and which allocated tasks by reference to four phases of the day.468 The document was drafted by management at Anytime Fitness Castle Hill. It was not prepared with any guidance from Anytime Australia and was intended to be a “checklist” or “guide” identifying work tasks to be completed when required.469
The daily tasks document relevantly guided staff to undertake the following tasks:470 a. during the Opening Phase (between 9:45am and 12:00pm): “[c]heck all bathrooms, tidy floor, stock up toilet paper, and soap (Approx each hour)”; b. during the Second Phase (between 12:00pm and 2:00pm): “[c]heck bathrooms and restock if required”; c. during the Third Phase (between 2:00pm and 5:00pm): “[c]lub 4pm ‘Refresher’ clean – Bathrooms – wipe down sinks, benches mirrors, hand dryers, toilet paper dispensers and soap dispensers. Pick up rubbish”; d. during the Closing Phase (between 5:00pm and 8:00pm): “[c]heck of bathrooms and that amenities are fully stocked (Hourly)”; and e. under the heading “Other things to remember”: “Make sure bathroom checks are done throughout the day (hourly) as some will be occupied when you do the standard rounds as specified above”.
Mr Hrobat told the court that the daily tasks document was not enforced for every hour of the day but that staff members were asked to complete the tasks for each phase.471 As at November 2017 there was no specific training provided to staff at Anytime Fitness Castle Hill in relation to the daily tasks document, and no records were kept or maintained in 468 Ex 1 Vol 1, Tab 29 at [9]; Vol 1, Tab 29A.
469 Ex 1 Vol 1, Tab 31 at [1].
470 Ex 1 Vol 1, Tab 29A.
471 Ex 1 Vol 1, Tab 29 at [11].
relation to compliance with that document (including records as to bathroom checks).472 Thus, there was no “log as such” to monitor whether bathroom checks were being carried out, nor did Anytime Australia require or direct Anytime Fitness centres to keep such a record;473 rather, the procedure relied upon communication as between staff, the General Manager, and the relevant supervisor who visited the gym “every day or two” for “an hour, two hours, depending on the day”.474 Mr Hrobat gave evidence that staff were to check the bathrooms “once or twice per phase so every 60 to 90 minutes”; however, prior to Jesse’s collapse in November 2017 “the mindset around our bathroom checks was very much about hygiene and making sure toilet paper was restocked and soap was filled”.475 Staff “obviously [had] plenty of other things to do on any given day”.476 Where more than one staff member was on duty, it was a matter for staff to determine how those bathroom checks were allocated as between staff throughout the day.477 For instance, there was no instruction to staff that they were to take it in turns to carry out those checks.478
As at 16 November 2017, staff at Anytime Fitness Castle Hill were not given any instruction or training as to what they were to do if a bathroom could not be accessed for cleaning throughout the day, and they were not instructed or trained to knock on the door of an occupied bathroom.479 Anytime Australia did not direct or instruct Anytime Fitness gyms to have staff knock on a locked bathroom door.480 Mr Hrobat said in his statement of 10 January 2018 that staff members do not knock on the bathroom doors if the bathrooms are occupied for the privacy of members as that would result in complaints from members.481 In his oral evidence, Mr Hrobat said that the question of knocking on doors “didn’t even come up to be honest”.482 Mr Allen meanwhile gave evidence that he was instructed not to knock on bathroom doors for the privacy of members, though he does not recall who gave him that instruction.483
Staff were not instructed or trained to call out to the occupant of a locked bathroom at any stage during their shift,484 and nor did Anytime Australia instruct Anytime Fitness 472 Ex 1 Vol 1, Tab 31 at [3]-[4]; Mr Hrobat, Transcript 19/4/21, page 79, lines 39 to 44; Mr Allen, Transcript 21/04/21, page 9, line 30; Ms Thiessen, Transcript 21/04/21, page 32, lines 30 to 35 473 Mr Peil, Transcript 22/04/21, page 19, line 48 to page 20, line 2 474 Mr Hrobat, Transcript 19/4/21, page 44, lines 20 to 40.
475 Mr Hrobat, Transcript 19/4/21, page 77, lines 35 to 45 476 Mr Hrobat, Transcript 19/4/21, page 77, line 40.
477 Mr Hrobat, Transcript 19/4/21, page 44, lines 41 to 50; Mr Allen, Transcript 21/04/21, page 9, line 36 to page 10, line 5; Ms Thiessen, Transcript 21/04/21, page 33, lines 8 to 23.
478 Mr Hrobat, Transcript 19/4/21, page 44, lines 49 to 50, page 45, lines 1 to 4.
479 Mr Hrobat, Transcript 19/4/21, page 80, lines 22 to 29; Mr Allen, Transcript 21/04/21, page 12, lines 11 to 15; Ms Thiessen, Transcript 21/04/21, page 33, line 48 to page 34, line 9.
480 Mr Peil, Transcript 22/04/21, page 20, lines 4 to 7.
481 Ex 1 Vol 1, Tab 29 at [12].
482 Mr Hrobat, Transcript 19/4/21, page 80, line 32.
483 Mr Allen, Transcript 21/04/21, page 12, lines 17 to 35, page 13, line 16.
484 Mr Hrobat, Transcript 19/4/21, page 80, lines 40 to 42.
centres to have staff take that step.485 As at 16 November 2017, staff were not instructed or trained to notify a supervisor or management if they were unable to access a locked bathroom,486 and Anytime Australia did not provide any direction or instruction for individual centres to notify security or emergency if a bathroom door was locked for an extended period.487 When asked why there was no system or procedure in place in November 2017 as to how staff were to respond when a bathroom door was locked for a prolonged period of time, Mr Hrobat said that “the situation had never arisen. It just wasn’t on our radar at all”.488
Ms Thiessen said that the daily tasks document was used to assist all staff in maintaining a productive work-flow and helped ensure necessary tasks were completed each day.489 Her understanding of “checking the bathrooms” as set out in the daily tasks document was that it involved cleaning / tidying the cubicles and surrounding areas; stocking toilet paper rolls; filling soap dispensers; relocating any abandoned belongings to lost property; and ensuring the bathrooms were presentable for members to use.490 Ms Thiessen understood, based on the training given to her by her supervisor, that staff needed to conduct a bathroom check at least every 60 to 90 minutes “if we could, depending on how busy we were” but that sometimes that was not possible.491 Ms Thiessen said that there was no training given to her in circumstances where a bathroom was unable to be accessed for “checking” but that in the event a bathroom was occupied, her usual practice was to move on to the next bathroom and clean the occupied bathroom at a later time.492 She would rely on her memory in that regard, and would usually come back to the occupied bathroom as part of the next round of checks.493 Ms Thiessen said that following Jesse’s death, staff were directed to monitor “blind” areas such as bathrooms and changerooms and, in the event that any bathroom or changeroom was closed for an extended period of time, staff were directed to knock and ask if the member was okay.494
Mr Allen said in his statement of 11 March 2020 that the daily tasks document provided new staff with a broad outline of duties that were required to be completed throughout the day, and that during a shift it provided staff with a checklist of things that needed to be done – in other words, a “to-do” list.495 A copy of that document was visible in the office 485 Mr Peil, Transcript 22/04/21, page 20, lines 9 to 12.
486 Mr Hrobat, Transcript 19/4/21, page 81, lines 13 to 19.
487 Mr Peil, Transcript 22/04/21, page 20, lines 14 to 16.
488 Mr Hrobat, Transcript 19/4/21, page 81, lines 25 to 28, page 82, lines 10 to 15.
489 Ex 1 Vol 1, Tab 31B at [5(a)(iv)].
490 Ex 1 Vol 1, Tab 31B at [5(b)].
491 Ms Thiessen, Transcript 21/04/21, page 31, line 46 to page 32, line 20.
492 Ex 1 Vol 1, Tab 31B at [5(c)].
493 Ms Thiessen, Transcript 21/04/21, page 33, lines 36 to 46.
494 Ex 1 Vol 1, Tab 31B at [14(a)]; Ms Thiessen, Transcript 21/04/21, page 58, lines 7 to 38.
495 Ex 1 Vol 1, Tab 31D at [4(a)].
and in the gym so that all staff knew what needed to be done daily.496 Mr Allen’s understanding of “checking the bathrooms” was that it entailed ensuring that the toilet paper rolls and soap dispensers were filled, and that the bathrooms were generally clean and tidy.497 He does not recall any specific instructions in the event a bathroom was occupied but his practice was to circle back later in the shift if a bathroom was occupied.498 He would rely on memory in that regard, and if the bathroom was still occupied then he would just circle back again.499 Mr Allen gave evidence that the bathrooms were a “low priority”.500 Mr Allen ceased his employment with Anytime Fitness Castle Hill on 28 June 2018. Mr Allen said that between November 2017 and June 2018, he was not given any additional training or instructions or guidance as to what he should do if a bathroom door at the gym was locked for an extended period of time.501
497 Ex 1 Vol 1, Tab 31D at [4(b)].
498 Ex 1 Vol 1, Tab 31D at [4(c)].
499 Mr Allen, Transcript 21/04/21, page 11, lines 25 to 45.
500 Mr Allen, Transcript 21/04/21, page 10, line 49 to page 11, line 11.
501 Ex 1 Vol 1, Tab 31D at [8]; Mr Allen, Transcript 21/04/21, page 20, lines 5 to 16.
502 Mr Allen, Transcript 21/04/21, page 16.
503 Ms Thiessen, Transcript 21/04/21, page 43, line 30.
c. on 17 November 2017 at approximately 10:44am, Ms Thiessen walks past the bathroom occupied by Jesse while on her mobile telephone and enters the adjacent bathroom and, subsequently, the third bathroom in that corridor. Ms Thiessen was carrying out a bathroom check.504 She then walks further down the corridor to the right and ultimately out of view, before walking back into the frame still on her mobile phone. She pauses for a short time while facing in the direction of Jesse’s bathroom, before exiting the area at about 10:46am. At that time, Ms Thiessen was on a telephone call with an employee of Paul-Tec, the security provider at Anytime Fitness Castle Hill, completing a monthly security system check.505 Ms Thiessen gave evidence that she had assumed the door to the first bathroom in the corridor was locked “because it had the red label on the outside” as distinct from the green label, which would have indicated that the door was unlocked;506 d. on 17 November 2017 at approximately 11:09am, Ms Thiessen enters the corridor outside the bathrooms and proceeds to re-stock the vending machine outside the bathroom occupied by Jesse. She exits approximately 1 minute later.
The appearances by Ms Thiessen on 16 November 2017 at 7:40pm, and on 17 November 2017 at 10:44am, are the only occasions on which a bathroom check was carried out during staffed hours between approximately 5:30pm on 16 November 2017 and (relevantly) about 1:09pm on 17 November 2017, by which time Ms Thiessen had ascertained that Jesse was still inside the bathroom.507
Counsel for ATGPPMS was concerned that counsel assisting’s careful summary of the objective evidence about Mr Allen and Ms Thiessen’s actions and movements on the day contained implicit criticism because they were seen on their phones while Jesse lay hidden, but nearby in a critical condition. His concerns here are unfounded and I am not critical of either staff member, who I regard as undertrained and unsupported. The importance of the CCTV footage is to highlight the way in which the safety system as it was then in place, created numerous missed opportunities to provide Jesse with earlier assistance. I am heartened that recent changes to that system will decrease the risk of a similar event.
504 Ms Thiessen, Transcript 21/04/21, page 48, lines 17 to 22.
505 Ms Thiessen, Transcript 21/04/21, page 49, lines 1 to 10; Ex 1 Vol 1, Tab 31B at [9(a)(iv)].
506 Ms Thiessen, Transcript 21/04/21, page 48 lines 37 to 50.
507 See also Ms Thiessen, Transcript 21/04/21, page 45, lines 17 to 19, page 49, lines 12 to 48.
Consideration and implementation of changes following Jesse’s death
A critical question arising out of that sequence of events is how to prevent the recurrence of a situation where somebody lies unconscious inside a bathroom at an Anytime Fitness centre for some 20 hours undetected. The court was keen to investigate a range of solutions including technological measures, such as the implementation of automatic exit technology (which would create an alert when a person has been at the gym for a long time); human-based systems, such as regular and documented bathroom welfare checks; and/or physical measures, like altering the design of the bathroom doors to render it more likely that a person who has collapsed inside the bathroom will be discovered in a timely way, such as by creating a narrow gap or transparent panel between the bottom of the doors and the floor.508 The court accepts that Anytime Fitness’ corporate structure necessitates that any changes to the physical fit-out of the gym must be determined by Anytime Australia.509
The court was struck by counsel assisting’s submission that between approximately 5:28pm on 16 November 2017 and approximately 2:05pm on 17 November 2017, a member of the public or a member of staff passed by the bathroom in which Jesse lay unconscious somewhere in the region of 600 times. During the period from 5:28pm to 8:28pm on 16 November 2017, there were approximately 210 occasions where a person walked past that bathroom. Plainly, there was a greater possibility that Jesse would have been detected earlier if the bathroom door did not extend all the way to the floor.510 Equally if a more robust human-based checking system had been in place there is a real possibility that Jesse would have been discovered sooner.
The court was also concerned about procedures and processes that came into play when Jesse’s mother contacted the gym to register her concern. A system which can alert staff to an “over stayer” could have triggered an investigation that may have led to a much earlier discovery. Tragically, it is also clear that Ms Thiessen should have been given clear advice to open the door immediately she became aware Jesse was inside the bathroom.
Design of the bathroom doors
509 Ex 1 Vol 1, Tab 29 at [23].
510 A proposition with which Mr Hrobat agreed: Mr Hrobat, Transcript 19/4/21, page 74, lines 30 to 33.
511 Mr Hrobat, Transcript 19/4/21, page 70, lines 5 to 11.
negligible” (which cost would be borne by the franchisees), he expressed concerns for the privacy of those inside the bathrooms but agreed that there is “no concern” with shortening the doors to a short degree so that, in the event of concern for the occupant, one could see underneath the door without compromising the privacy of the person inside.512 Mr Hrobat gave evidence that he would be prepared to consider that option and to work with Anytime Australia in that regard, provided that it did not interfere with the privacy of members.513
Mr Peil gave evidence that Anytime Australia has discussed the possibility of shortening the bathroom doors at Anytime Fitness centres so that they do not extend all the way to the floor, but that they “very quickly determined that it’s not a way that we would like to move forward”.514 Anytime Australia has not considered installing glass or Perspex panels at the bottom of bathroom doors.515 Mr Peil views both options as “crazy” because he believes that members may feel at risk of sexual harassment and therefore be deterred from attending the gym.516
Consultant architect Dr John Cooke was instructed by Anytime Australia to provide an expert opinion as to whether shortening the doors of the bathrooms at Anytime Fitness centres, or installing a Perspex panel along the bottom of the doors, would comply with the National Construction Code (NCC) which includes the Building Code of Australia (BCA). Dr Cooke noted that the relevant codes provide that sanitary compartments “must have doors and partitions that separate adjacent compartments and extend … from floor level to the ceiling in the case of a unisex facility”.517
There was some disagreement about whether the implication of the relevant codes resulted in any shortening to a door to a unisex sanitary compartment, being impermissible no matter how small the resulting gap may be. Without repeating the detailed submissions outlined by counsel assisting and counsel for Anytime Australia in this regard, I note that differing views were put forward.
Having considered these detailed submissions, in my view, the best evidence comes from Dr Cooke himself. He initially opined that shortening the unisex bathroom doors at Anytime Australia would not comply with the requirement that such doors extend “from floor level to ceiling”.518
However in Dr Cooke’s supplementary expert report, he opined that “a 2-3cm gap 512 Mr Hrobat, Transcript 19/4/21, page 70, lines 28 to 34.
513 Mr Hrobat, Transcript 19/4/21, page 74, lines 16 to 22 514 Mr Peil, Transcript 22/04/21, page 5, lines 49 to 50, page 6, lines 1 to 11.
515 Mr Peil, Transcript 22/04/21, page 6, line 17.
516 Mr Peil, Transcript 22/04/21, page 4, line 46 to page 5, line 40, page 6, lines 19 to 22.
517 Ex 5, Tab 71 at [23] and Appendix C at p. 254.
518 Ex 5, Tab 71 at [27]-[28].
between the floor and the door of the Restrooms would comply with [relevant building codes]”, albeit “only if a gap of that dimension would not compromise the privacy of users of the restrooms”.519 He observed that it was not possible from a standing position to see into a bathroom whose door finished approximately 3cm above floor level, but opined that “if a person could see a Restroom occupant through the 3cm gap (for example, by looking under the gap) then the occupant’s privacy would be compromised and the door would not be compliant”.520
Resistance to such a simple, yet highly effective solution is regrettable.
Bathroom welfare checks
The procedures surrounding bathroom checks at Anytime Fitness Castle Hill have undergone various changes in the period from approximately February 2018 to April
By way of summary, Mr Hrobat says that:521 a. at or around the end of February 2018,522 staff at all gyms operated by ATGPPMS523 were instructed when undertaking the hourly checks of bathrooms to pay attention to when bathrooms were occupied and to revisit them, in a separate check about 20 to 30 minutes later,524 if a door was closed and they had any concerns (because, for example, there was no noise suggesting activity coming from the bathroom). If on a subsequent check the door was still closed, and the staff member had concerns, staff were to knock and check that the person was okay and if they were not okay, or there was no answer, staff were to call security (by activating the duress button)525 or emergency services as appropriate. That instruction was given to staff verbally by Mr Hrobat’s General Manager at a managers meeting.526 It was not reduced to writing because, in Mr Hrobat’s words, it was “more of a change of mindset for us … Not so much 519 Ex 5, Tab 71B at [2].
520 Ibid 521 The proceeding summary is taken from Ex 1 Vol 1, Tab 31.1 at [3]-[7], unless otherwise indicated.
522 Mr Hrobat, Transcript 19/4/21, page 41, lines 25 to 28.
523 Mr Hrobat, Transcript 19/4/21, page 53, lines 10 to 13.
524 Mr Hrobat, Transcript 19/4/21, page 46, lines 10 to 32.
525 Mr Hrobat, Transcript 19/4/21, page 47, lines 15 to 20.
526 Mr Hrobat, Transcript 19/4/21, page 41, line 35, page 42, lines 1 to 50, page 43, lines 1 to 10.
changing the regularity of it”.527 Nor was the daily tasks document updated to reflect that instruction.528 Mr Hrobat gave evidence that staff were informed as to the frequency of bathroom checks that “[e]very sort of 60 to 90 minutes was my intent. It wasn’t a hard and fast one hour … it was at least once to twice each phase”.529 Staff were not told in what circumstances it would be appropriate to call security as distinct from emergency services (nor vice versa), and staff were not told that they were themselves to enter the bathroom if the occupant was not okay or did not respond, due to Mr Hrobat’s concerns about the welfare of staff and the privacy of occupants of the bathrooms;530 b. there was no corresponding instruction or direction given to the external cleaners in or around February 2018.531 Indeed, in the period between November 2017 and April 2021, the external cleaners at Anytime Fitness Castle Hill were not given any additional or new instructions or training regarding bathroom welfare checks.532 When asked why that was the case, Mr Hrobat answered simply: “I don’t know”;533 c. the 2018 changes were in place until about July 2020.534 During that period, staff at Anytime Fitness Castle Hill were not asked to report back to management at any stage on the implementation of that procedure,535 save that the supervisor and General Manager would ask questions of staff to see how it was progressing.536 Mr Hrobat does not know how frequently that was being checked with staff by the General Manager.537 There were no occasions during that period where security or emergency services were called by staff at any of the Anytime Fitness centres operated by ATGPPMS, in relation to the occupant of a locked bathroom;538 d. in about July 2020, when Anytime Fitness re-opened following the outbreak of COVID-19, gyms were required to have COVID-19 marshals present during all operational times. In practice, this meant that the gyms operated by ATGPPMS no longer operated 24 hours a day, seven days a week. By about “August / September, possibly October” Anytime Fitness Castle Hill was open from 527 Mr Hrobat, Transcript 19/4/21, page 43, lines 12 to 21.
528 Mr Hrobat, Transcript 19/4/21, page 43, line 30ff.
529 Mr Hrobat, Transcript 19/4/21, page 43, lines 7 to 18.
530 Mr Hrobat, Transcript 19/4/21, page 46, lines 41 to 50, page 47, lines 1 to 11.
531 Mr Hrobat, Transcript 19/4/21, page 49, lines 23 to 27.
532 Mr Hrobat, Transcript 19/4/21, page 49, lines 29 to 34.
533 Mr Hrobat, Transcript 19/4/21, page 49, lines 36-37.
534 Mr Hrobat, Transcript 19/4/21, page 48, lines 22 to 26.
535 Mr Hrobat, Transcript 19/4/21, page 49, lines 3 to 9.
536 Mr Hrobat, Transcript 19/4/21, page 48, lines 31 to 50, page 49, lines 1 and 8.
537 Mr Hrobat, Transcript 19/4/21, page 48 line 49 to page 49 line 1.
538 Mr Hrobat, Transcript 19/4/21, page 49, lines 11 to 21.
5:00am until 10:00pm for about two to three months.539 As part of those changes, staff at gyms operated by ATGPPMS540 were directed to knock on bathroom doors shortly before closing each day and to inform the occupants that the gym would be closing shortly and that they needed to leave. That direction was given to staff both verbally and in an email to staff, by Mr Hrobat (initially) and then by his General Manager Nicholas Starr.541 In his oral evidence, Mr Hrobat said that in the event that staff received no response from the occupant of a bathroom, staff were directed to follow the same procedure as was applied in 2018.542 Ms Thiessen gave evidence that she was never asked to report back on the implementation of that new procedure;543 e. in September 2020, there was an incident at Anytime Fitness Hornsby (which is operated by ATGPPMS) where a member fainted inside a bathroom and hit his head. The staff member in question knocked on the door and received no response, following which she opened the door, located the member inside and telephoned an ambulance.544 The member made a full recovery. The relevant staff member therefore did not follow the procedure in place at Anytime Fitness Hornsby at that time, which required staff to telephone emergency services or security rather than entering the locked bathroom. Mr Hrobat does not know why that procedure was not followed and did not make any enquiries of the staff member as to that, but gave evidence that “she’d only been with us a couple of weeks”.545 An insurance incident report was completed (Ex 9), together with an “in house” incident report dated 13 September 2020 (Ex 8). However, Mr Hrobat did not log an Anytime Safety report in relation to this incident until 8 April 2021.546 Mr Hrobat gave evidence that he initially reported the incident by way of a telephone call to Andrew Gow, who is now the Central Operations Manager at Anytime Australia.547 Mr Gow subsequently provided a statement dated 20 April 2021 in which he stated that he was “not aware of the Hornsby incident”, does not recall any conversation with Mr Hrobat in relation to that incident, and would have directed Mr Hrobat to log an Anytime Safety incident report if he had been contacted in September 2020;548 and 539 Mr Hrobat, Transcript 19/4/21, page 51, lines 19-25.
540 Mr Hrobat, Transcript 19/4/21, page 53, lines 10 to 13.
541 Mr Hrobat, Transcript 19/4/21, page 51, lines 42 to 50, page 52, lines 1 to 9. See letter from Wotton Kearney dated 25 June 2021 and attached email from Mr Starr dated 31 July 2020 (which documents have not yet formally been tendered).
542 Mr Hrobat, Transcript 19/4/21, page 52, lines 19 to 30.
543 Ms Thiessen, Transcript 21/04/21, page 62, lines 6 to 8.
544 Mr Hrobat, Transcript 19/4/21, page 53, lines 18 to 24.
545 Mr Hrobat, Transcript 19/4/21, page 53, lines 37 to 50.
546 Ex 2 at [6].
547 Mr Hrobat, Transcript 19/4/21, page 52, lines 39 to 48.
548 Ex 2 at [7]-[8].
f. following the incident in September 2020 at Anytime Fitness Hornsby, staff at all gyms operated by ATGPPMS549 were instructed to knock on all bathroom doors at the commencement of staffed hours and at the conclusion of staffed hours, in addition to the regular checks, and that the same procedure was to be followed if there was no response or staff had any concerns. The decision to implement ongoing bathroom checks at opening and closing time was made by Mr Hrobat and his business partner in or around November 2020,550546 and the instruction was conveyed by the General Manager to staff in managers meetings.551547 The daily tasks document was updated to reflect this.552548 In terms of ensuring that the new procedure in relation to member welfare checks was being complied with, Mr Hrobat relied on “communication … between general manager, supervisors, club staff on a regular basis and I’m asking that question regularly of my general manager and supervisors as well”.553
Apart from the incident in September 2020 at Anytime Fitness Hornsby, Mr Hrobat is not aware of any other occasion since July 2020 where a staff member has knocked on the door of an occupied bathroom at a gym operated by ATGPPMS and received no response from the occupant.554 Nor is Mr Hrobat aware of any other occasion where a person has collapsed or become incapacitated inside a bathroom at any of the gyms operated by ATGPPMS, or where staff have held concerns for the welfare of an occupant of one of the bathrooms at Anytime Fitness Castle Hill.555
More recently, in April 2021 Anytime Australia consulted with Mr Hrobat about a trial policy for bathroom welfare checks (Trial Policy).556 The Trial Policy provides that staff must conduct a welfare check of all bathrooms on a 2-hourly basis during staffed hours, together with checks at opening and closing, and must record those checks in the club’s record log. If a bathroom is occupied, staff are to knock on the door and ask if the occupant is okay. If there is ultimately no response, staff are to gain access to the bathroom themselves by unlocking the door with a screwdriver. Cleaners are to be directed to act in accordance with the Trial Policy, which requires them to clean the bathrooms at the commencement of their shift, and if a bathroom is occupied, cleaners must knock on the door and ask if the occupant is okay. If there is ultimately no response, the cleaner is to gain access to the bathroom by unlocking the door. Cleaners are also 549 Mr Hrobat, Transcript 19/4/21, page 54, lines 21 to 22.
550 Mr Hrobat, Transcript 19/4/21, page 55, lines 24 to 25.
551 Mr Hrobat, Transcript 19/4/21, page 54, line 15ff.
552 See letter from Wotton Kearney dated 25 June 2021 at [2.2] (which has not yet formally been tendered); cf. Mr Hrobat, Transcript 19/4/21, page 55, line 29 (548) 553 Mr Hrobat, Transcript 19/4/21, page 56, lines 48 to 50, page 57, lines 1 to 7.
554 Mr Hrobat, Transcript 19/4/21, page 52, lines 32 to 37, page 56, lines 42 to 46, page 65, lines 44 to 47.
555 Mr Hrobat, Transcript 19/4/21, page 75, lines 36 to 50.
556 A copy of which appears in Ex 1 Vol 1, Tab 31.1.
required to log the time and completion of the bathroom check in the cleaners’ book at each gym, which is to be checked by staff at the commencement of staffed hours each day.
The Trial Policy commenced in 20 Anytime Fitness clubs between 6 April and 9 April 2021,557 being the clubs operated by Mr Peil and Mr Hrobat.558 Relevantly, the Trial Policy was implemented at Anytime Fitness Castle Hill on or about 9 April 2021.559 The Trial Policy was circulated to staff, and a copy left at the gym.560 A sign has also been affixed to the wall inside each of the bathrooms at the gyms operated by ATGPPMS notifying members that welfare checks are conducted frequently and asking that they “avoid wearing headphones” inside the bathrooms.561 An email was circulated by Anytime Fitness Castle Hill to its members on or about 9 April 2021 to notify them of the Trial Policy.562 A record log of bathroom checks carried out both by staff and by the external cleaners (Ex 10) is kept in the cleaners’ cupboard at Anytime Fitness Castle Hill.563
To that end, representatives of ATGPPMS had a meeting with Mr Lee on 8 April 2021 during which the Trial Policy was explained to Mr Lee, a hard copy of that policy provided to him, and Mr Lee’s signature attached to the relevant part of that policy.564 Mr Hrobat gave evidence on 19 April 2021 of his belief that signed copies were also received by Mr Lee’s subcontractors.565 Five signed acknowledgments of the trial policy from Mr Lee’s subcontractors were subsequently produced,566 of which two are undated; one is dated 22 April 2021 (and missing the second page); and two are dated 23 April 2021 (one of which is missing the first page).
Those clubs that have implemented the Trial Policy were asked to provide feedback by 16 April 2021, for Anytime Australia to consider before the policy is implemented across all Anytime Fitness clubs.567 Mr Peil says that implementation will occur by incorporating the Trial Policy into the Operations Manual; posting a copy of the policy and any supporting materials onto the central communications platform utilised for communications between franchisor and franchisee (the “Dashboard”); emailing an announcement to all franchisees; conducting internal training as regards the Trial Policy; and adding a requirement that the Operations team conduct an audit as to whether a club is 557 Ex 1 Vol 2, Tab 33B at [28].
558 Mr Peil, Transcript 22/04/21, page 22, line 50.
559 Mr Hrobat, Transcript 19/4/21, page 58, lines 19 to 24, page 67, line 13.
560 Mr Hrobat, Transcript 19/4/21, page 58, lines 43 to 47.
561 Mr Hrobat, Transcript 19/4/21, page 66, lines 25 to 45; a copy of that sign appears in Ex 1 Vol 1, Tab 31.1.
562 Mr Hrobat, Transcript 19/4/21, page 66, line 47 to page 67, line 18.
563 Mr Hrobat, Transcript 19/4/21, page 59, lines 31 to 46.
564 Ex 1 Vol 1, Tab 31.3 at [6].
565 Mr Hrobat, Transcript 19/4/21, page 63, lines 6 to 13.
566 Not yet formally tendered.
567 Ex 1 Vol 2, Tab 33B at [36]-[37].
maintaining a welfare check register during the standard club audits.568 That implementation across Australia was anticipated to occur by May 2021.569
Mr Peil gave evidence that the Trial Policy is “looking – like it is a good solution so far”,570 that it seems to have been well-received,571 and that his “absolute preference is that it’s adopted across and made mandatory”.572 The international team is “very much in support of it and intend rolling that out across the globe” which “tells us that they’re in support of the trial”.573 Mr Hrobat likewise gave evidence that the feedback he has received as to the implementation of the Trial Policy is that “it’s pretty efficient. It’s not too bad … for most part the members are quite responsive to it … we haven’t had any negative feedback”.574 Mr Hrobat is prepared to adopt the Trial Policy on a permanent basis moving forward.575
The Trial Policy provides for, among other things, a check of the bathrooms to be conducted at the end of staffed hours. Had such a procedure existed as at 16 November 2017, with the result that a bathroom welfare check was conducted at or around 8:00pm on that date, it is likely that Jesse’s death could have been prevented.576 Between the date of Jesse’s death in November 2017, and the introduction of the Trial Policy in April 2021, Anytime Australia did not put in place any changes “across the network” to prevent or reduce the chance of undetected collapses in bathrooms.577
The court is heartened by Anytime Australia’s and ATGPPMS’s adoption of the Trial Policy, albeit years after Jesse’s death. In my view it is a real improvement on past systems.
Other measures to improve the chances of detection
569 Ex 1 Vol 2, Tab 33B at [39].
570 Mr Peil, Transcript 22/04/21, page 22, line 13.
571 Mr Peil, Transcript 22/04/21, page 44, lines 13 to 21.
572 Mr Peil, Transcript 22/04/21, page 23, lines 19-20.
573 Mr Peil, Transcript 22/04/21, page 23, lines 24 to 31.
574 Mr Hrobat, Transcript 19/4/21, page 66, lines 1 to 10.
575 Mr Hrobat, Transcript 19/4/21, page 66, lines 19 to 24.
576 See also Mr Hrobat, Transcript 19/4/21, page 82, lines 23 to 28; Professor Carter, Transcript 23/04/21, page 17, line 42 to page 18, line 20, page 33, lines 21-22.
577 Mr Peil, Transcript 22/04/21, page 15, lines 27 to 32; see also page 51, lines 36 to 39.
578 Ex 1 Vol 1, Tab 29 at [23]; Vol 1, Tab 31 at [10]; Mr Hrobat, Transcript 19/4/21, page 67, line 25 to page 68, line 15.
579 Mr Hrboat, Transcript 19/4/21, page 68, line 15.
whether those options had been progressed.580 Other than that single telephone conversation in December 2017, Mr Hrobat has not had any discussions or interactions with Anytime Australia in the period since Jesse’s death about what sort of measures could be implemented to alert security when a person occupies a bathroom for an extended period.581 Mr Hrobat’s oral evidence was that he “left it in their hands with regards to the physical side of the security and sensors and what could and couldn’t be done”.582
In his statement dated 25 November 2019, Mr Martin stated that active discussions were ongoing with Anytime Australia’s specialised and expert security vendors to determine what, if any, additional measures can be implemented across the Anytime Australia gyms to alert security when a person occupies a bathroom for a period of longer than one hour.583 Those measures could include sensors on bathroom doors to alert gym staff and/or security, and scheduled and logged patrols of bathrooms by staff or security.584 Mr Martin in his statement of 25 November 2019 said that those measures were being investigated and would be considered once inquiries into the existence, feasibility and costs of such measures are known.585 Mr Martin ceased employment with Anytime Australia in September 2020.586
Mr Peil gave evidence that Anytime Australia had participated in meetings with its security provider Rylex on the implementation and efficacy of installing security sensors on bathroom doors or motion sensors in bathrooms, and that at one time the estimate for retrofitting those sensors was a minimum of $10,000 per club.587 Mr Peil’s understanding is that this is “not seen as a viable solution”.588 Mr Peil said that “we are awaiting the outcomes and, of, of what recommendations your Honour comes to us with. So that’s why there may not have been anything brought forward to the board at this stage”.589
Anytime Fitness centres in Australia have 24-hour security services.590 There are no regular or scheduled patrols carried out by security at any Anytime Fitness centres, nor were there as at November 2017.591 Notwithstanding the evidence of Mr Martin that Anytime Australia was investigating that option (among others), Mr Peil gave evidence that this is “not a solution that we are looking at”.592 He said that the “amount of incidents 580 Ex 1 Vol 1, Tab 31 at [10] 581 Mr Hrobat, Transcript 19/4/21, page 68, line 36.
582 Mr Hrobat, Transcript 19/4/21, page 68, lines 39 to 41.
583 Ex 1 Vol 2, Tab 33 at [42].
584 Ex 1 Vol 2, Tab 33 at [44].
585 Ibid.
586 Ex 1 Vol 2, Tab 33B at [10].
587 Mr Peil, Transcript 21/04/21, page 92, lines 16 to 27, page 93, lines 10 to 13.
588 Mr Peil, Transcript 21/04/21, page 93, lines 24 to 29.
589 Mr Peil, Transcript 21/04/21, page 93, lines 47 to 50.
590 Mr Peil, Transcript 22/04/21, page 2, lines 17 to 25.
591 Mr Peil, Transcript 22/04/21, page 2, lines 27 to 41.
592 Mr Peil, Transcript 22/04/21, page 2, line 47.
that we have, in my opinion, doesn’t justify the additional expense that that would cost”.593 Anytime Australia has not conducted an analysis of the cost of introducing scheduled patrols by security.594
Mr Peil says that Anytime Australia is currently working with the master franchisor of Anytime Fitness globally on an upgrade to the door entry system used by Anytime Fitness clubs, which would allow members to access clubs using their smartphone or smart watch (without the need for a physical fob key) and would monitor and record the time that members exit the facility, with the ability for electronic alerts to be sent to staff and security contractors in the event that a member is at a facility for too long.595 Mr Peil says that Anytime Fitness LLC are presently working with industry leading software and hardware vendors with global expertise in this area to identify, scrutinise and test suitable technology options.596 Once that is complete, the next step is to conduct an in-club pilot, which Anytime Fitness LLC have indicated will be able to occur in Australia.597
Mr Peil gave evidence that he anticipates that an in-club pilot would be able to occur in Australia “mid to late this year” and that he is “pushing on a weekly basis to get this accelerated”.598 Whether it is adopted or not is “up to the US”.599 The individual franchisees would bear the cost of installing the door entry system, which would (if implemented) be imposed as a requirement by Anytime Australia.600 Mr Peil described that form of automatic exit hardware as “the best solution”.601
The court agrees that a system which sends an electronic alert to staff and 24-hour security if a member has not exited a club within a reasonable time frame is highly desirable. This allows for investigations to take place to check on the member. It is the kind of system which could potentially have saved Jesse’s life. This is an option which should be trialled as soon as possible.
Expert evidence – Jesse’s hypoglycaemia
Professor Carter has significant experience in the field of diabetes and endocrinology, both as a treating endocrinologist and a Clinical Professor of Medicine at the University of 593 Mr Peil, Transcript 22/04/21, page 3, lines 31 to 41.
594 Mr Peil, Transcript 22/04/21, page 3, line 40.
595 Ex 1 Vol 2, Tab 33B at [40]; Mr Peil, Transcript 22/04/21, page 16, line 44 to page 17, line 38.
596 Ex 1 Vol 2, Tab 33B at [41].
597 Ex 1 Vol 2, Tab 33B at [41].
598 Mr Peil, Transcript 22/04/21, page 18, lines 3 to 7.
599 Mr Peil, Transcript 22/04/21, page 17, lines 45-46.
600 Mr Peil, Transcript 22/04/21, page 18, lines 23 to 29.
601 Mr Peil, Transcript 21/04/21, page 94, line 9.
Sydney.602 He has published extensively in his field within the peer-reviewed literature over many decades, and was awarded an Officer of the Order of Australia in 2000 for services to diabetes and endocrinology.
The effect and types of insulin
The main effect of insulin is in the lowering of the blood glucose levels.604 Endogenous insulin produced from the pancreas is finely controlled by circulating blood glucose levels, so that when those levels drop below normal, insulin production is reduced. That feedback mechanism did not apply with exogenous insulin; the absorption of insulin into the circulation continues irrespective of the resultant effect on blood glucose levels. A non-diabetic male would usually be much more sensitive to the blood glucose lowering effects of injected insulin than a diabetic male; in other words, less insulin would be required to achieve hypoglycaemia than would be the case with a diabetic male.605
There are various types of insulin available in Australia. NovoRapid insulin is a very short-acting insulin.606 After a subcutaneous injection of NovoRapid, the onset of hypoglycaemic effects occurs after about 10-30 minutes, with the peak hypoglycaemic activity occurring between 30 minutes and 3 hours and the duration of action being around 3 to 5 hours.607 However, the higher the dose of insulin administered, the longer would be the period of hypoglycaemia.608
Professor Carter explained that a NovoRapid insulin pen is a disposable pen with a dial, and the user dials up the desired dose.609 Once the needle on the pen is injected subcutaneously, the other end of the pen is depressed and the pre-selected dose of insulin is delivered into the subcutaneous tissue. Normally the insulin is injected into subcutaneous tissue in the abdomen,610 but it can also be injected elsewhere such as into the thigh or upper arm.611
A number of factors affect the speed at which exogenously administered insulin is absorbed in a non-diabetic adult male, including intramuscular rather than subcutaneous administration of insulin (with absorption being slightly quicker in the case of 602 See Professor Carter’s CV at Ex 1 Vol 3, Tab 58.
603 Ex 1 Vol 3, Tabs 58 and 60.
604 Ex 1 Vol 3, Tab 58 at [3].
605 Ex 1 Vol 3, Tab 58 at [3]; Professor Carter, Transcript 23/04/21, page 15, line 11 to page 16, line 3.
606 Ex 1 Vol 3, Tab 58 at [4].
607 Ibid.
608 Ibid.
609 Ex 1 Vol 3, Tab 58 at [8].
610 See Professor Carter, Transcript 23/04/21, page 11, line 37 to page 12, line 2.
611 Ex 1 Vol 3, Tab 58 at [8].
intramuscular injection), and exercise (where absorption would again be faster).612 Exercise leads to increased blood flow through the peripheral tissues, particularly muscles and subcutaneous fat, which leads to faster absorption of insulin.613 The administration of insulin after nearly three hours of exercise likewise means that the onset of hypoglycaemia is faster.614 Where a non-diabetic male has administered insulin after exercising, the speed with which the insulin is absorbed from the subcutaneous tissues will be slower the longer the time since the exercise ceases.615 However, the initial rate of absorption of insulin immediately after strenuous exercise would be quicker than immediately before the exercise was commenced.616
Professor Carter was asked to describe why insulin may be used for performanceenhancing purposes. By way of response, Professor Carter explained that insulin is an anabolic hormone which facilitates glucose transfer into muscles where it can be deposited as glycogen, and also facilitates amino acid (protein) transfer into muscles.617 Used at the end of a training session, insulin injections help muscles replenish their glycogen stores. Professor Carter also notes that hypoglycaemia, if sufficiently severe, can result in an increased output of growth hormone from the pituitary gland. Many bodybuilders believe that growth hormone is beneficial in assisting muscle development and reducing peripheral fat.618
Professor Carter noted that Jesse was also using T3 Max and Klenbol. T3 Max is a thyroid hormone which ultimately increases blood supply to the peripheral tissues, which could increase the rate of absorption of insulin induced by exercise.619 Meanwhile, Klenbol can increase the basal metabolic rate and heat production.620 Cause of Jesse’s hypoglycaemia
Professor Carter stated that there are numerous potential causes for Jesse’s hypoglycaemia on 16 November 2017.621 Those potential causes include a tumour in the pancreas; an overdose of Sulphonylurea tablets; severe malnutrition; major liver or kidney disease; or an under-active pituitary gland or adrenal glands. Professor Carter opined that there is nothing in Jesse’s history, or in the clinical or biological evidence, to support any of those potential causes of prolonged hypoglycaemia and each has “almost 612 Ex 1 Vol 3, Tab 58 at [4].
613 Professor Carter, Transcript 23/04/21, page 12, line 34 to page 13, line 13.
614 Professor Carter, Transcript 23/04/21, page 13, lines 5 to 13.
615 Ex 1 Vol 3, Tab 58 at [5(c)].
616 Ibid.
617 Ex 1 Vol 3, Tab 58 at [6].
618 Ibid.
619 Ibid.
620 Ex 1 Vol 3, Tab 58 at [6], [7(a)].
621 Ex 1 Vol 3, Tab 58 at [9].
certainly been excluded”.622
Professor Carter’s opinion is that Jesse developed hypoglycaemia as a result of the exogenous administration of insulin.623 In his oral evidence, Professor Carter confirmed his opinion that on the balance of probabilities, and based upon all of the material with which he was briefed, there is no other medical explanation or cause for Jesse’s prolonged hypoglycaemia.624 Professor Carter’s opinion in this respect does not depend on the existence or identification of an insulin pen on or near Jesse’s person.625 Professor Carter opined that the fact that Jesse was still unconscious when he was discovered, and the fact that his BGL was 1.2 mmol/L at 2:24pm on 17 November 2017, strongly suggests that if NovoRapid were the type of insulin injected, then the dose given must have been large.626
Professor Carter suspects that Jesse had seizures secondary to the hypoglycaemia, which may well have exacerbated or precipitated hypoxia to the brain resulting in features of hypoxic encephalopathy that were found on brain imaging at Westmead Hospital.627 Professor Carter also opined that prolonged hypoglycaemia would result in radiological features similar to those described, and that it is likely that the cause for the encephalopathy was a combination of both prolonged severe hypoglycaemia and hypoxia.628
Professor Carter considers it likely that Jesse self-administered insulin after he exercised at Anytime Fitness Castle Hill on 16 November 2017.629 That is because of the onset of NovoRapid insulin being sometime between 10 and 30 minutes after the injection.
Professor Carter considers that it is possible that hypoglycaemia developed within 10 to 15 minutes of the injection, and that Jesse lost consciousness as early as 30 minutes after the injection of insulin.630
I accept Professor Carter’s evidence and am satisfied to the requisite standard that Jesse’s death was caused by a self-administered dose of insulin in the bathroom at Anytime Fitness, Castle Hill. I note that the medical cause of his death was not disputed by any of the interested parties.
I note that the forensic pathologist who conducted Jesse’s autopsy confirmed having reviewed all the evidence available at inquest that he agreed with Professor Carter’s 622 Ex 1 Vol 3, Tab 58 at [9]; Tab 60 at [1]; Professor Carter, Transcript 23/04/21, page 4, line 39 to page 5, line 14; page 8, lines 39 to 50.
Ex 1 Vol 3, Tab 58 at [10(a)].
624 Professor Carter, Transcript 23/04/21, page 5, lines 22 to 34.
625 Ex 1 Vol 3, Tab 60 at [1].
626 Ex 1 Vol 3, Tab 58 at [10(a)]; Professor Carter, Transcript 23/04/21, page 16, lines 18 to 42.
627 Ex 1 Vol 3, Tab 58 at [10(a)].
628 Ibid.
629 Ex 1 Vol 3, Tab 58 at [10(b)]; Professor Carter, Transcript 23/04/21, page 14, lines 25 to 45.
630 Ex 1 Vol 3, Tab 58 at [10(c)].
opinion. Dr Szentmariay stated “I believe that the self-inflicted injection of insulin initiated a chain of events which eventually lead [sic] to hypoxic brain injury and death”.631
Jesse’s death was a tragic accident. He had used insulin before and is likely to have thought he knew what he was doing. According to his friend, SJ, Jesse had previously advised him that an adverse reaction such as feeling dizzy or faint could be reversed by “having a lemonade or lolly.”632 I have no doubt Jesse underestimated the risk he was taking when injecting himself with insulin on the evening of 16 November 2017. Jesse collapsed and was unable to use the emergency button or call for help. He was trapped in a locked bathroom where he quickly lost consciousness.
For completeness I can state there is absolutely no evidence of foul play or any suggestion that his death was intentionally self-inflicted.
Could Jesse’s death have been prevented?
In Professor Carter’s opinion, if Jesse had been discovered and given IV glucose within 3 to 6 hours of the injection of insulin, it is likely that irreversible brain damage could have been prevented.633 There is no critical time beyond which brain damage becomes irreversible; however, the shorter the period of hypoglycaemia, the greater the chance that the brain can recover function.634 In Professor Carter’s opinion, if Jesse had been “found at 8 o’clock and treatment had been started, I would’ve expected that he would’ve recovered”.635
Professor Carter was careful to acknowledge that he could not state that conclusion in categorical terms, but rather as a matter of probabilities.636
Counsel for ATGPPMS urged against accepting Professor Carter’s opinion in relation to the likelihood of recovery if Jesse had been discovered and treated within 3-6 hours after his injection and collapse. He submitted that Professor Carter may have relied too heavily on the article by Vincent Marks which reviewed a relatively small number of cases from existing literature. I accept that Professor Carter’s opinion was not the result of scientific trials or experiments. It was, as he remarked his “best guess” or his best “rough idea” based on Marks’ review of all the case studies he could find.
In my view it is patently clear that early discovery could have saved Jesse’s life. This is hardly surprising, in circumstances where ‘treatment windows’ are well accepted in various areas of medicine. I accept Professor Carter’s evidence that discovery, even 631 Ex 1, Vol 1, Tab 4B at [10].
632 Ex 1, Vol 1, Tab 19E at [9].
633 Ex 1 Vol 3, Tab 58 at [10(d)].
634 Ibid.
635 Professor Carter, Transcript 23/04/21, page 33, lines 21 to 22.
636 See e.g. Professor Carter, Transcript 23/04/21, page 32, lines 20 to 22, lines 39 to 40.
some hours after collapse could have avoided irreversible brain injury, although I accept that it is difficult to fix the number of hours with certainty.
The need for recommendations
Counsel assisting put forward a number of recommendations arising out of the evidence for the court’s consideration.
Section 82 of the Act confers on a coroner the power to make recommendations that he or she may consider necessary or desirable in relation to any matter connected with the death with which the inquest is concerned. It is essential that a coroner keeps in mind the limited nature of the evidence that is presented and focuses on the specific lessons that may be learnt from the circumstances of each death.
I note that while the Ministry of Health chose not to attend these proceedings, its comment was sought on recommendations relevant to its function. I am grateful for the Ministry’s assistance especially during the pandemic when I am aware their focus lies elsewhere.
Recommendations proposed by Counsel assisting the Coroner Bathrooms To Anytime Australia That Anytime Australia implement the Trial Policy on a permanent basis at all existing and future Anytime Fitness gyms in Australia.
Anytime Australia recognised the sense of developing an improved bathroom check policy and had trialled it in 20 gyms by the time of the inquest. I am heartened that counsel for Anytime Australia indicated that it will have the bathroom Trial Policy rolled out to its 500 gyms throughout Australia “subject to the Coroner’s findings”. The issue is one which may affect the fitness industry more widely and I intend to send a copy of these findings to Fitness Australia who may be able to bring these issues to the attention of other gyms and franchises for their consideration.
ATGPPMS indicated that it was in favour of recommendations that would reduce risks to persons using Anytime Fitness bathrooms.
That Anytime Australia undertake, or cause its franchisees to undertake, a documented internal audit of the bathroom log sheets every three months so as to assess compliance with the requirement in the Trial Policy for regular, documented bathroom checks.
that the appropriate wording would involve Anytime Australia “directing” its franchisees (because of the contractual relationships involved). As indicated, ATGPPMS was supportive of these measures.
That Anytime Australia provide, or cause its franchisees to provide, training to all new and existing staff and external cleaners at Anytime Fitness centres which includes: a. a summary of the requirement for regular, documented bathroom checks as embodied within the Trial Policy; b. a summary of the requirement for regular, documented bathroom checks as embodied within the Trial Policy; c. a description of the procedure to be followed in the event that a bathroom door is locked and the occupant of the bathroom is non-responsive or requires medical attention; and d. a summary of the requirement for regular, documented bathroom checks as embodied within the Trial Policy; e. training in how to unlock a locked bathroom door from the outside, including ensuring that all staff and cleaners are shown the location of any requisite tools for carrying out that task.
That Anytime Australia undertake an immediate costing regarding any technological measures that would assist in detecting an incapacitated person inside the bathrooms at existing and future Anytime Fitness centres, and give documented consideration to prompt installation of those measures, including an upgrade to the main door entry system to record the time that members exit the facility and to notify staff if a member is at the facility for an extended period.
Any human based checking system can fail. In my view proper consideration of technological support systems is called for. I note that Mr Peil was particularly passionate about developing a front of house system which would provide an alert if a patron had been in the gym for an unusual amount of time. The idea has considerable merit and may have saved Jesse’s life. In my view development of such a system should be pursued with some urgency.
Anytime Australia raised concerns regarding a recommendation that would mandate “movement sensors” in bathrooms, as they were likely to be both ineffectual (e.g. where a person has collapsed but is still moving) and expensive for franchisees.
I accept this submission, particularly where another prefered technological solution is being explored, and would be supported, by Anytime Australia.
That Anytime Australia give immediate, documented consideration to measures for improving the design of the bathroom doors at existing and/or future Anytime Fitness centres to provide visibility of a potential collapse inside the bathroom, whilst preserving the privacy of occupants of the bathrooms, including by: a. creating a narrow gap between the bottom of the bathroom doors and the floor; and b. installing a narrow glass or Perspex panel between the bottom of the bathroom doors and the floor, in a manner that complies with any relevant requirement of the BCA.
There was considerable resistance to this recommendation from Anytime Australia. The primary reason provided for this was that modifying doors in the way suggested would not comply with the requisite building codes; that modifying doors in this way would be a breach of privacy and that the proposed bathroom check policy was the most effective way of mitigating the risk. Anytime Australia also submitted that “the expert advice is that such a modification would be unlawful”. I am unconvinced that Dr Cooke expressed his opinion regarding modification to applicable doors in those terms.
In his evidence, Mr Hrobat indicated that provided such measures “didn’t interfere with the privacy of the members, we’re here to assist in whatever way we can so I don’t think that the cost would be too high per franchisee, depending on the club obviously but it would be something we’d look at and work with Anytime Australia."
I support the consideration of this a relatively simple, and apparently cost-effective measure. The benefit of a small gap, that would have no bearing on the privacy of members, is obvious.
That Anytime Australia send a written reminder notification to all franchisees detailing the requirement to log a contemporaneous Anytime Safety incident report in respect of any safety or medical incidents (including those involving patrons inside bathrooms), and that Anytime Australia conduct a regular audit of any such incidents.
Anytime Australia opposed this recommendation and submitted that it should only have been directed at ATGPPMS. This was because only ATGPPMS had failed to lodge Anytime Safety incident reports. It was submitted that to “consider that issue across the Anytime Fitness gym network would have required an enlargement of the inquest.”
I am perplexed by the resistance. Safety incident reports were presented as a crucial
part of the overall safety system. A written notification to franchisees reminding them of their obligations in this regard is not onerous and may provide Anytime Australia with more reliable information to assess ongoing risk.
PIEDs To Anytime Australia That Anytime Australia consider liaising with the NSW Ministry of Health, Fitness Australia, Dr Beng Eu, Dr Katinka van de Ven, Kay Stanton and any other appropriate stakeholders with a view to considering: a. the actual or suspected use of PIEDs by those who attend Anytime Fitness gyms; b. what, if any, measures could be introduced at Anytime Fitness centres (including through digital means such as blogs and social media) to improve awareness of the health risks associated with PIEDs; and c. what, if any, harm reduction measures or strategies could be implemented at Anytime Fitness centres (including through digital means such as blogs and social media) for those who use PIEDs.
That Anytime Australia give immediate, documented consideration to the delivery of educational campaigns or sessions to Anytime Fitness franchisees regarding PIEDs use, including by way of recorded online webinars and/or presentations at annual conferences of Anytime Australia.
To the NSW Minister for Health That the NSW Ministry of Health give immediate, documented consideration to: a. adopting or endorsing the Sydney North Health Network’s “GP guide to harm minimisation for patients using non-prescribed anabolic-androgenic steroids (AAS) and other performance and image enhancing drugs (PIEDs)”, including on Your Room and/or the NSW Ministry of Health website for alcohol and
other drug health professionals; and b. any additional steps that can be taken to educate general practitioners regarding the identification, management and treatment of individuals who use or are suspected of using PIEDs.
That the NSW Ministry of Health consider the preparation and distribution of a dedicated online Fact Sheet regarding the health risks of using non-prescribed insulin.
That the NSW Ministry of Health consider liaising with Anytime Australia, Fitness Australia, Dr Beng Eu, Dr Katinka van de Ven, Kay Stanton and any other appropriate stakeholders with a view to considering: a. the nature and prevalence of PIEDs use; b. what, if any, additional education, information or resources could be disseminated in NSW to improve public awareness of the health risks associated with PIEDs, including at gyms, at fitness centres and online; c. what, if any, harm reduction measures or initiatives could be implemented (including at gyms and fitness centres) for those who use PIEDs.
The Ministry advised the court that it would undertake to engage with the relevant stakeholders at an appropriate time. This kind of roundtable is highly desirable and would readily facilitate the sharing of information and expertise, with a view to developing an action plan about future initiatives.
I note that counsel for ATGPPMS stated that ATGPPMS supported all recommendations which might reduce potential harm to patrons but urged consideration of adding a representative of the New South Wales Department of Education as a stakeholder. The suggestion was made after the evidence disclosed that while no specific in-school education programs about PIEDs appear to currently exist, PIED use can commence in teenage. While the Department of Education were not represented at the inquest, in my view, the suggestion is a good one and I intend to urge the Ministry to consider adding a representative from that department to any roundtable discussions, if appropriate.
That the NSW Ministry of Health consider what if any search engine optimisation strategies can be utilised to cause Your Room to appear higher in the ranking for search terms such as “PIEDs”, “performance enhancing drugs”, “bodybuilding drugs”, “fitness drugs” and “steroids”.
Findings
Date of death He died on 21 November 2017.
Place of death He died at Westmead Hospital, Westmead NSW.
Cause of death He died of hypoxic brain injury caused by the exogenous administration of insulin.
Manner of death Jesse collapsed in a gym bathroom having injected insulin in the context of using PIEDs on 16 November 2017. He rapidly developed hypoglycaemia and lost consciousness. He was not discovered for around twenty hours and although he was treated by paramedics and taken to a tertiary hospital, he did not recover.
Recommendations pursuant to section 82 Coroners Act 2009
For the reasons stated above, I recommend that To Anytime Australia Bathrooms
That Anytime Australia implement the Trial Policy on a permanent basis at all existing and future Anytime Fitness gyms in Australia.
That Anytime Australia direct its franchisees to undertake a documented internal audit of the bathroom log sheets every three months so as to assess compliance with the requirement in the Trial Policy for regular, documented bathroom checks.
That Anytime Australia direct its franchisees to provide training to all new and existing staff and external cleaners at Anytime Fitness centres which includes: a. a summary of the requirement for regular, documented bathroom checks as
embodied within the Trial Policy; b. a description of the procedure to be followed in the event that a bathroom door is locked and the occupant of the bathroom is non-responsive or requires medical attention; and c. training in how to unlock a locked bathroom door from the outside, including ensuring that all staff and cleaners are shown the location of any requisite tools for carrying out that task.
That Anytime Australia undertake an immediate costing regarding any technological measures that would assist in detecting an incapacitated person inside the bathrooms at existing and future Anytime Fitness centres, and give documented consideration to prompt installation of those measures, including an upgrade to the main door entry system to record the time that members exit the facility and to notify staff if a member is at the facility for an extended period.
That Anytime Australia give immediate, documented consideration to measures for improving the design of the bathroom doors at existing and/or future Anytime Fitness centres to provide visibility of a potential collapse inside the bathroom, whilst preserving the privacy of occupants of the bathrooms, including by: a. creating a narrow gap between the bottom of the bathroom doors and the floor; and b. installing a narrow glass or Perspex panel between the bottom of the bathroom doors and the floor, in a manner that complies with any relevant requirement of the BCA.
That Anytime Australia send a written reminder notification to all franchisees detailing the requirement to log a contemporaneous Anytime Safety incident report in respect of any safety or medical incidents (including those involving patrons inside bathrooms), and that Anytime Australia conduct a regular audit of any such incidents.
PIEDs
c. what, if any, harm reduction measures or strategies could be implemented at Anytime Fitness centres (including through digital means such as blogs and social media) for those who use PIEDs
To the NSW Minister for Health
That the NSW Ministry of Health give immediate, documented consideration to: a. adopting or endorsing the Sydney North Health Network’s “GP guide to harm minimisation for patients using non-prescribed anabolic-androgenic steroids (AAS) and other performance and image enhancing drugs (PIEDs)”, including on Your Room and/or the NSW Ministry of Health website for alcohol and other drug health professionals; and b. any additional steps that can be taken to educate general practitioners regarding the identification, management and treatment of individuals who use or are suspected of using PIEDs.
That the NSW Ministry of Health consider the preparation and distribution of a dedicated online Fact Sheet regarding the health risks of using non-prescribed insulin.
That the NSW Ministry of Health consider liaising with Anytime Australia, Fitness Australia, Dr Beng Eu, Dr Katinka van de Ven, Kay Stanton and any other appropriate stakeholders with a view to considering: a. the nature and prevalence of PIEDs use; b. what, if any, additional education, information or resources could be disseminated in NSW to improve public awareness of the health risks associated with PIEDs, including at gyms, at fitness centres and online; c. what, if any, harm reduction measures or initiatives could be implemented (including at gyms and fitness centres) for those who use PIEDs.
That the NSW Ministry of Health consider what if any search engine optimisation strategies can be utilised to cause Your Room to appear higher in the ranking for search terms such as “PIEDs”, “performance enhancing drugs”, “bodybuilding drugs”, “fitness drugs” and “steroids”.
Conclusion
However I hope it may prompt more open discussion within the fitness industry about the prevalence and nature of PIED use. I am confident that round table discussions involving relevant stakeholders will prove fruitful and am thankful that the Ministry of Health has indicated a willingness to be involved. Effective harm reduction strategies in this space will require the involvement of the fitness industry, PIED experts and users and health professionals.
I offer my sincere thanks to counsel assisting, Louise Coleman and her instructing solicitor Lena Nash for their hard work and enormous commitment in the preparation and conduct of this inquest. I also thank Ms Jez, Ms Krynda and Ms de Raya. I thank the experts who were willing to assist the court and the officer in charge of the investigation.
Finally, once again I offer my sincere condolences to Jesse’s family. I acknowledge that the pain of losing a loved one in these circumstances is profound.
I greatly respect Jesse’s family’s decision to participate in these difficult proceedings and acknowledge their ongoing sorrow and grief.
Magistrate Harriet Grahame Deputy State Coroner 29 October 2021 NSW State Coroner’s Court, Lidcombe
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