PI Aware - July 2019
As defendants we consider there to be an element of volenti once a gym member enters a gym setting and starts using the equipment, either when attending classes, using the free weights or participating in one-to-one personal trainer sessions. Effectively the member willingly and knowingly puts themselves in a position where some degree of harm might result from the activities they undertake. As such they are not able to bring a claim if any injury arises.
It is for the member to take care of their own safety and ask staff for assistance if they are unfamiliar with equipment or do not know how to use it. However this is a contentious issue.
Attending the gym is an activity which involves movement and the use of equipment and is therefore a high risk activity by its nature. Injuries can occur if a member does not take care of their own safety when in the gym setting, often as a result of misusing the equipment. At this stage the member will look to you as the service provider to consider whether more could have been done to avoid injury.
Most inductions are very basic and would not cover the gym member choosing to use equipment in an unusual manner, with some gyms not offering one at all. Indeed, many gyms are accessible without the need for an induction at all given it would be almost impossible to demonstrate every piece of equipment. Whilst an induction is helpful as a starting point for the defensibility of a claim, it is unlikely in most cases it would have covered the equipment in question.
In the absence of an induction each claim should be assessed on its own merits and most are still defendable. After all, people are often familiar with basic equipment and making them wait for an induction slot could potentially result in the member going elsewhere and business being lost. However, a waiver form should always be completed in such circumstances.
Leisure Centres are providing a service which ultimately helps the public become healthier and fit, thereby reducing the impact on society of obesity by getting people moving and fit.
Common sense must prevail
Given the pivotal role that leisure centres play in people’s health, we believe courts should acknowledge that leisure centres are not responsible for misuse of equipment and a lack of common sense.
Once the member has joined the gym is the onus on Leisure Centres to hold the members hands throughout their attendance and update them once they get new equipment? Or should members take responsibility in approaching staff for assistance? We consider the latter.
We presented a case to the court involving one of the UK sector leaders in the gym industry and it was music to our ears when the judge, commenting that gyms are a risky place and that the claimant had chosen to undertake the activity, dismissed the claim, effectively acknowledging that the risk of using gym equipment lies with the user.
This case also highlights the importance of working together with the manufacturer of the equipment stepping in to assist us with the claim, being cross-examined as a witness on the stand. He gave evidence which ultimately assisted the judge in his decision.
Faye Whittet v Virgin Active
The claimant suffered injury when her hand became trapped whilst using an electronic treadmill at the defendant’s Mayfair premises.
She alleged that the defendant had failed to provide a system of induction or supervision, and also adequate and safe gym equipment, thereby creating a hazard and failing in its common duty of care under section 2 of the Occupiers’ Liability Act 1957.
We maintained that the risk of falling on a treadmill is obvious and inherent. There is no hidden risk evident in terms of trapping appendages when the particular treadmill in question was properly used. The claimant was an experienced attendee and a knowledgeable user of equipment. The defendant had not assumed responsibility for her and the claimant was not coerced or induced to use the equipment as she did.
The duty - Occupiers’ Liability Act 1957
Section 2(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
The limits of the duty
Section 5 (2) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).
The judge sensibly found as follows:
‘Mr East for the Defendant produced an approved Judgment from the County Court at Manchester, except to remind myself of a passage of an earlier 2009 Judgment in Poppleton where at paragraph 13 LJ May commented, and this case involved an Mr Poopleton [verbatim quote of Judgment] now reading that you would think that the answer to the first of those issues should there have been an induction or supervision, suggests to the answer to that supervision should be no. But what are the facts in this particular case, I find that the essential facts are as follows, she is 42 years of age, she has used gyms for 15 years, in her own evidence she was aware that gyms were risky places, she was aware of the two stops buttons, although one it is fair to say she could not use in the circumstances, the other she chose not to use, the machine was programmable for the undertaking she wanted to undertake, but she chose to jump on a highly speeding belt, I say that is more than risky it is indeed dangerous.
I find it impossible to condemn the defendant in answer to issue 1, and answer that question positively, and in other words to find that the Defendant be required to undertake to provide induction. Rather the Claimant’s choice had an inherent risk she was a mature woman and she made a choice to undertake the activity. I therefore dismiss the claim.’
Given the claimant was jumping on and off the treadmill, which is a new trend, there were inherent and obvious risks in the activity voluntarily undertaken. As such the law did not require the appellants to prevent the claimant from undertaking it, nor to train or supervise the claimant whilst she did.
This decision suggests that, in future, adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense.
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