Australia: Exercise Class Provided By Health Club Not ‘Recreational Services’

Kovacevic v Holland Park Holdings Pty Limited & Anor [2010] QDC 279
Last Updated: 13 August 2010
Article by Scott Cowell


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 defendant:
    • 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 risk, because:
    • 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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.