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Hot topic: Gym Waivers, Client Liability and Duty of Care

In the recent decision of Belna Pty Ltd v Irwin [1], the NSW Court of Appeal considered the duty of care owed by a gym operator to a client who suffered a serious knee injury while performing lunges as part of a program designed by an employee.

Ms Irwin dislocated her knee while performing lunges at a Fernwood gym. The exercises were part of a prescribed gym program formulated by a consultant of the gym and the incident occurred while Irwin attempted a lunge for the first time. Her leg gave way, she fell to the floor and was then taken to the hospital where it was found that she had dislocated her knee.

In a questionnaire that formed part of the joining process, Irwin disclosed that she had injured her knee a few years before. The sales consultant enquired whether she had suffered any problems with her knee since then and Irwin replied that her knee was now fine. Irwin claimed that Fernwood breached its duty of care by failing to make further inquiries about her vulnerability for re-injury when writing the program.                                                               
The questionnaire completed by Irwin when she joined Fernwood also contained an acknowledgement that the gym was unable to provide medical fitness advice and the information obtained could only be used as a guideline for designing a suitable exercise program. Additionally, a clause of the gym membership contract signed by Irwin upon joining purported to exclude Fernwood from liability for personal injuries sustained at the gym. Fernwood sought to rely on these clauses, in seeking to avoid liability for Irwin's injury, however the Court of Appeal did not consider they were appropriate for this purpose and found Fernwood liable for Ms Irwin’s injury.

The Law                  
Fernwood was attempting to use the "recreational activities" protection which states that, in general, a "recreational service provider" does not owe a duty of care to a person who engages in a "recreational activity", if the person is satisfactorily warned of the risks associated with that activity prior to undertaking it.

Many club owners will be aware that this protection exists and that it was introduced some years ago in response to a range of factors, including concerns from recreational service providers that consumers were too easily able to succeed in claims against them for injuries sustained in the ordinary course of participating in a recreational activity.

However, it is important to note that this legislation does not exempt recreational service providers from their duty of care.

What the court found initially
At first instance, the trial judge held that Fernwood was liable for Irwin's injury. The trial judge held that the consultant should have made further enquiries to determine the suitability of the exercise regime, including an assessment of Ms Irwins ability to safely perform lunges.

The trial judge also made the surprising finding that the exercise program undertaken by Irwin was not a "recreational activity" and hence Fernwood could not avail itself of the recreational activities defence protections contained in the Civil Liability Act 2002 (NSW).

Appeal Decision
On appeal, the Court of Appeal unanimously agreed that Fernwood breached its duty of care to Ms Irwin in failing to make adequate enquiries into the history of the injury and failing to properly warn of the risk involved in the exercise.

In contrast with the decision at first instance, the Court of Appeal held that undertaking a fitness program was a 'recreational activity' and accordingly, Fernwood was entitled to limit its liability for personal injuries sustained by clients. However, it also held that wording of the risk warning contained in the acknowledgment signed by Ms Irwin did not warn her about any risk involved in the activity, and was therefore ineffectual.

In addition, the Court of Appeal held that the contract clause which purported to exclude liability was "not merely ambiguous" but also "unintelligible". The clause contained various expressions such as, "expressed interest" and "release…from…professional or general liability" which were said to render the clause "so vague as to be meaningless". Therefore, the clause did not exclude Fernwood from liability.

The case presents a very clear warning to all owners/operators of gyms and other recreational facilities that there is an increased risk of being found liable for injuries sustained at your facility where it can be proved that you or your staff failed to exercise reasonable care; and/or the clauses in your membership/participation contracts are not worded correctly and are therefore not legally enforceable.

Despite a legislative trend to increase protections available to recreational service providers and, to a certain extent, shift responsibility for personal injury on to the individual, courts are reluctant to allow contractual clauses to actually exclude liability where they are at all vague or ambiguous.

Network acknowledges the contribution of Lander & Rogers Lawyers to this blog post.

Are you a club owner or manager? What are your thoughts on this case? Has the outcome of the case affected the way in which your business operates? Join the conversation and post your comments below.

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Posted by: Keith M | 10-Dec-2009 12:54 PM | 3 out of 5 stars

This is an old story. I read it a few months ago in Australian Leisure magazine.

Posted by: david kennedy | 01-Feb-2010 12:03 AM |

I studied for two years full time 30 hours / week face to face and then about 40 to sixty hours a week at home to pass a diploma of recreation fitness. I spent another year studying massage part time to gain a cert 4 in massage. I started work in a gym working with people who had little or no idea. Most had done short courses to gain accreditation, read a book and find the answers. Some had studied online and others had done a short course over a couple of weekends. I was then asked by my employer to join fitness Australia. Because I had waited more than 2 years to join after finishing my diploma they would not accept it and told me I would have to do it again. Every time I visit a gym I see people doing things under the supervision of trainers that are wrong and have the potential to coarse injury, but they all have accreditation with fitness Australia. The problem is not with the waivers or indemnity forms it is in the training provided to trainers.

Posted by: Anonymous | 02-Feb-2010 01:52 PM | 5 out of 5 stars

I run my own outdoor personal training business Tonezone. I have been operating for over nine years..I too have had clients that have been incorrectly assessed and trained in the gym. The point that all trainers were advised once completed the certificate four course was that refer if any question is raised to the clients ability to train.

In this case the assessment on the initial application indicated prior injury. A qualified trainer would be able to generally asses weather the client falls in the "at risk" category. Once viewed as refer on...the trainer should have referred on, even if the gym did not want to do so.

Upon assessment from a medical representative, the exercises in rehabilitation would have been commenced until further review from the medical professional.

Then gently and progressively you would increase the repetitions to enable the full use of the knee.

I have contracts with my clients and continually refuse to train the area under review until the medical professional has signed off full use of the limb.

I have learnt "Cover your own backside" as when you are taken to court, quite often or not you are on your own as your industry wil not stand by you. They will use you in an example after the fact as in this case.

United we stand and divided we fall

Posted by: Kristy | 03-Feb-2010 10:18 AM |

A classic case of the fact there are so many young personal trainers out there who have done a short course to get their qualification and then think that they have the knowledge and skills to be a personal trainer and give people advice on how to train properly and safely, the fact is they don't and this just shows that.
I think it is to easy to get a job as a personal trainer and should be made a lot harder and have proper training before they are allowed to administor advice to someone.
Been a personal trainer myself i know that in my first year i had limited experience and relied on my knowledge from my studies which is good but the more experience you have the better and i feel is safer in the long run when dealing with clients.
What it comes down to it, young inexperienced trainers shouldn't be training people until they have been given the go ahead from their manager that they can safely deliver a training session.