With the start of the New Year I am sure that many people are either recommencing their fitness regimes or alternatively, perhaps starting one that is long overdue. Whilst not immediately apparent from my physical appearance I have been doing some regular exercise over the last few months. I recently completed a questionnaire and signed a disclaimer before starting some fitness classes. Going through this process I asked myself:
1. Why is it necessary to complete and sign a questionnaire and disclaimer before starting an exercise program?
In Queensland, the statutory law relating to civil liability for personal injuries is contained in the Civil Liability Act 2003 (CLA).
Section 19 of the CLA states that a person will not be liable in negligence for harm suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity.
An “obvious risk” is a risk that would have been obvious to a reasonable person in the injured person’s position. Obvious risks include risks that are patent or a matter of common knowledge, risks where the probably of it occurring is low and risk that are not prominent, conspicuous or physically observable.
A “dangerous recreational activity” means an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person. Participating in an exercise program or fitness class has been held to constitute a “recreational activity”.
Questionnaires and disclaimers used by fitness service providers such as gyms usually state, at least in general terms, some of the risks involved in partaking in the provider’s services. They say things like, “I acknowledge that the programs and classes held by the gym may expose me to risks including accidents, injury, illness or death”.
By requiring persons to complete a questionnaire and sign a disclaimer when they sign up to a gym or register to participate in a class, fitness service providers are attempting to limit their liability for personal injuries under the “dangerous recreational activity” protection in section 19 of the CLA.
2. How thorough should the fitness service provider be in relation to the completion and signing of the form? (i.e. is it good enough for a member of staff to give you a form to sign, complete and return without sitting down and running through the form).
When a person signs up at a gym or registers to participate in fitness classes, a member of staff should run through any forms, such as questionnaires and disclaimers, which they are expected to sign.
It is important that fitness service providers are fully aware of any medical conditions or injuries suffered by the person at the outset before they start exercising and that persons understand the full nature of the risks involved in partaking in the services provided.
This is illustrated in the New South Wales case of Belna Pty Ltd v Irwin .
In that case the Plaintiff dislocated her left knee when carrying out a lunge exercise during a PT session at a gym. In the questionnaire the Plaintiff completed when she joined the gym, she said that she had suffered an injury to her left knee 3-5 years previously but that she had had no further problems with that knee since.
The NSW Court of Appeal unanimously agreed that the gym breached its duty of care to the Plaintiff in failing to make adequate enquiries into the history of her injury and failing to properly warn her of the risks involved in the exercise.
3. If I did suffer some medical condition or injury as a result of participating in exercise what rights would I have against the fitness service provider?
Generally speaking, a fitness service provider is under a duty to exercise reasonable care in the provision of its services.
Where a person suffers injury as a result of the careless conduct of another, that person can seek compensation for their losses at common law through the tort of negligence.
In broad terms, for an injured person to bring a claim for negligence they must prove:
- that the person owed a duty of care to them;
- that the person breached that duty of care; and
- that they suffered loss or damage as a result of that breach.
As discussed above, the relevant legislation in Queensland is the CLA. Persons who have been injured in the course of participating in exercise programs or fitness classes at a gym or other fitness service provider should obtain legal advice as to their prospects of bringing a claim for personal injuries under the CLA.
The CLA also provides a number of defences which may be relied upon by a gym to reduce or avoid liability. In addition to the protections provided by section 19 of the CLA where a complaint relates to the failure to warn of an obvious risk, a gym or other fitness service provider may avoid liability where an injured person failed to take reasonable care for his or her own safety (contributory negligence). An example of this may be where a person injures themselves attempting to lift weights which are clearly too heavy for them.
4. If I did have any rights against the fitness service provider would I lose those rights by virtue of having signed the disclaimer?
A person does not automatically lose their right to bring a claim for personal injuries where they have signed a disclaimer. The courts are reluctant to allow contractual clauses such as those contained in disclaimers to actually exclude liability where they are at all vague or ambiguous.
In the Belna case discussed above the NSW Court of Appeal held that the wording contained in the disclaimer signed by the Plaintiff did not sufficiently warn her about the risk involved in the activity, and was therefore ineffectual. The Court said that the wording in the disclaimer was so vague as to be meaningless and therefore did not exclude the gym from liability.
In short, a gym or other fitness service provider’s ability to rely on a disclaimer will depend on whether a court considers that the disclaimer has provided proper and adequate risk warnings and the enforceability of those clauses in the disclaimer seeking to limit its liability.