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

by Ryan Hogan | Tuesday, December 08, 2009

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.

Facts
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.

Conclusion
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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