Anna Kovacevic ('the plaintiff') succeeded with a claim for personal injuries, in the Brisbane District Court, against Holland Park Health Club Services Pty Limited ('the second defendant'). This decision may have ramifications for the operators and insurers of gymnasiums and fitness clubs, and similar entities who generally consider themselves to be providers of 'recreational services' (as that term is defined in the Trade Practices Act 1974 ('TPA')).
Facts and allegations
On 23 July 2005, the plaintiff attended an exercise class ('the class') at a fitness centre ('the fitness centre') owned by Holland Park Holdings Pty Limited ('the first defendant'), and operated by the second defendant.
The class involved participants engaging in a vigorous form of exercise, whilst particular tracks of music were played. The plaintiff was performing an exercise that involved taking two steps to one side, and then three steps to the other side ('the activity'). The activity was to be performed vigorously, with participants having only one foot on the floor at any time.
The floor of the fitness centre ('the floor') was a sprung wooden floor. It had a polished and coated surface.
The plaintiff alleged that:
- Whilst she was performing the activity she slipped on perspiration on the floor and, in attempting to steady herself, twisted and fractured her left ankle ('the incident')
- The incident was caused by the negligence and breach of contract of the defendants.
Prior to the incident, the plaintiff and the second defendant entered into a contract ('the contract') relating to the plaintiff's use of the fitness centre and participation in exercise classes. The contract was in writing and contained express terms that the plaintiff:
- Agreed to use the fitness centre at her own risk
- Would not hold the defendants responsible for any personal injury that she suffered
- Waived any legal claims against the defendants for any injury, loss or damage.
The first defendant was successful in defending the plaintiff's allegations. In that regard, McGill DCJ found that the liability of the first defendant turned upon whether there was something wrong with the design of the fitness centre and, in particular, the floor. His Honour concluded that it was not unreasonable for the first defendant to install a wooden floor in a room used for exercise classes.
However, his Honour did find that the second defendant was negligent and breached contractual duties owed to the plaintiff.
In terms of negligence, his Honour made the following findings:
- He accepted the plaintiff's evidence as to how the incident did occur and was not persuaded by alternate evidence that the plaintiff had simply fallen over
- Based upon the expert evidence led by the parties, it was clear that not very much liquid needed to be applied to the floor to produce a significant reduction in the co-efficient of friction in the area in which the plaintiff was exercising
- The plaintiff's sister, who came to the plaintiff's aid after the incident, gave evidence that she saw droplets of clear liquid on the floor near where the plaintiff had fallen. His Honour accepted this evidence
- The incident occurred because the plaintiff slipped on perspiration. No plausible alternative was suggested by the defendants
- The likelihood that an incident of this type could occur was reasonable foreseeable, and the second defendant was consequently required to take reasonable care to avoid the incident
- No particular steps were taken to mop up perspiration, which might have collected on the floor during the class. This was despite a recommendation (by the entity who designed the format of the class) that steps be taken to wipe up perspiration during each class
- The incident could (and should) have been avoided by the second
- Not conducting the class on the floor
- Taking steps to remove perspiration, from the floor, during the class.
In terms of contract, his Honour made the following findings:
- The plaintiff had contracted with the second defendant for the purpose of undertaking exercise in a supervised, safe and healthy manner
- The second defendant could not rely upon the abovementioned
express terms of the contract to avoid an implied term that the
services (the class) would be provided with due skill and care (s74
TPA), and / or to establish a defence of voluntary assumption of
- Participation in exercise classes does not amount to 'recreational services' for the purpose of s68B TPA. Exercise classes are not 'sporting activity or similar leisure time pursuits', because they do not involve the dominant characteristic of sport – competition. Further, whilst the class involved a significant degree of physical exertion, it was not undertaken for the purpose of 'recreation, enjoyment or leisure'. Rather, it was undertaken for the purpose of physical fitness
- The express terms were not limited to liability for death or personal injury, but also related to other damage, and were thus invalid due to s68B(1)(d) TPA
- In light of the findings, made in terms of negligence, the second defendant had breached an implied term of the contract, being that it would provide a class with due skill and care (which included a class that was supervised and safe).
In light of the findings of fact made by his Honour, the decision, in the terms of the second defendant's negligence, is not surprising.
The element of the decision that is surprising relates to the definition of 'recreational services' contained within the TPA. With respect, his Honour's findings do not accord with a 'modern' understanding of why fitness classes are provided / participated in, which arguably, do include recreation, enjoyment and leisure.
Further, his Honour's findings with regard to s68(1)(d) TPA are concerning, particularly if the contract included a term to the effect that it was not to apply to liability which could not be contracted out of due to statute. This is not clear from the judgment.
We suspect that this decision may be appealed. If not, this decision may have a significant bearing upon the types of defences that can be raised in similar instances, and what (if any) limitations of liability should be included in contracts for the provision of fitness classes and similar services.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.