Written by Peter CarterAugust 4, 2010
Courts in Queensland and New South Wales have recently ruled on the liability of personal trainers for injuries sustained by their clients.
In the Queensland case* decided in July, K was performing a step routine in a “Body Attack” class of 20 participants at a gym of which she was a member. When placing her R foot onto the timber floor in the last of the three R steps, it slipped to the right. Her L foot landed awkwardly, fracturing her L ankle.
The court accepted that she had slipped on perspiration from the “vigorous exercise, likely to promote perspiration” and that it was likely that the floor was “sufficiently lubricated with droplets of perspiration to make the floor too slippery”. The sprung-timber floor, although “coated” did not have any slip-resistant qualities but of itself was found to be reasonably suitable had it been dry.
Even though injuries of this seriousness are rare, the court ruled that “it is not that unusual for someone doing exercises on a coated wooden floor to slip” and that hence the injury was foreseeable.
Air-conditioning was one measure taken to prevent the risk of slippery perspiration but this alone was insufficient.
The trainer was found to be liable for failing to take reasonable care as she had no routine for removing perspiration. Relevant to the decision was that the “Body Attack” program designer had recommended trainers wipe up perspiration to avoid potential slipperiness.
The gym was also held liable for failing to exercise sufficient supervision over the trainer, ie directing that safe procedures should have been followed.
The gym argued that the term of K’s membership specified she “used the fitness centre at her own risk” and would not hold the gym or its personnel liable for any claims for injury. However, the court was asked to rule that s74 of the Trade Practices Act imposed a term that the gym “would take reasonable care to avoid foreseeable risk of injury to the plaintiff” regardless of the exclusion clause because of the operation of s68 which K said rendered the clause void.
Against this outcome was a further contention that s 68B absolved the gym of responsibility because the gymnasium was supplying “recreational services”. Section 68A was one of the contra-consumer provisions inserted into the TPA in 2003 as a result of the controversial Ipp Report around the time some states including Queensland introduced their Civil Liability laws.
‘Recreational services’ are defined in s 68B as services that consist of participation in:
(a) a sporting activity or a similar leisure-time pursuit; or
(b) any other activity that:
(i) involves a significant degree of physical exertion or physical risk; and
(ii) is undertaken for the purposes of recreation, enjoyment or leisure.
His Honour ruled that exercise classes were not a “sporting activity” because there was no competitive element. Such classes were a “leisure time pursuit” but because they were not similar to a sporting activity, they were not covered by the description contained in the first limb of the “recreational services” definition.
Although exercise classes involved “a significant degree of physical exertion”, they were undertaken for fitness rather than “recreation, enjoyment or leisure” and consequently also failed to qualify under the second limb of the definition.
Thus it was held that the contract did indeed contain an implied term that the gym would take reasonable care to prevent foreseeable injury and His Honour awarded over $80,000 in damages to the injured gym member.
(The finding that the fitness class was not a “recreational activity” under the TPA is consistent with a February 2009 ruling by the New South Wales Court of Appeal which considered a similar phrase in the context of that state’s Civil Liability Act: Fernwood Fitness v Irwin  NSWCA 46).
By contrast, the New South Wales Supreme Court held in December** a personal trainer and gym not to be liable for a prolapsed disc that was sustained during a medicine ball “crunch” exercise during a fitness session which was part of a 12-week weight loss and fitness program.
W, a middle-aged barrister who was unfit and overweight, arrived at the training studio for a Saturday morning session with a hangover to which the trainer replied: “We will have to smash that out of you”.
The court found that there was a duty owed by the trainer to take measures to guard against the risk of foreseeable injuries: “it would have been obvious to a reasonable personal trainer taking on a client with W’s history that there was a prospect of injury if he was trained too hard”.
The particular exercises were perhaps too strenuous for W but in finding that there was no negligence, the court ruled that the trainer had adequately prepared the program and briefed W. A suitable induction process had been followed. Although the exercise may have been “dangerous”, the trainer took the precautions that any reasonable trainer would have adopted.
Note: The NSW Court of Appeal subsequently reversed this decision and allowed damages to be recovered by W.
* Kovacevic v Holland Park Holdings P/L  QDC 279
** Wilson v Nilepac P/L  NSWSC 1365