In the sixth of our seven-part article series providing legal guidance for those in the fitness industry, we’re sharing more advice from Scott McKenzie from Mills Oakley. This time Scott helps you understand your duty of care and how to identify if your facility is ‘unsafe’.
Health club owners/managers should carefully consider whether your premises are appropriately fitted out to prevent injury to members. For example, stairs present a particularly high risk, and you should consider whether appropriate handrails are installed. You may, in some circumstances, be able to make a claim against your landlord in the event that a member sues you for breaching your duty of care. This will largely depend on the terms and conditions of your lease agreement and the individual fact situation.
Case: Loose Fit Pty Ltd versus Marshbaum
This case involved Loose Fit, a lessee and occupier of the first floor of a shopping centre in which it operated a fitness centre.
A patron who was a member of the gym was injured on the premises. She alleged that Loose Fit had breached its duty of care because no handrail had been installed on the upper flight of stairs where the accident occurred. The steps were constructed of pale coloured polished timber without visually contrasting nosings. Also, the steps were constructed with differing riser heights and varying tread depths.
She also argued that there was an implied term in the contract she entered into with the gym that the premises was safe for use for exercise.
The patron did not sue the owners of the shopping centre. However, Loose Fit cross-claimed against the Owners, seeking contribution or indemnity.
The court found that Loose Fit was liable and that appropriate safety measures were not implemented.
Loose Fit successfully claimed contribution by the landlord of 50% of the damages payable.
Assessing every aspect of your gym for potential safety risks is like warming up before a workout. It can be a little bit tedious, but it’s only a matter of time before you run into trouble if you don’t do it. Taking a proactive approach will provide you with peace of mind that your members are safe and that you are in your insurer’s good books.
To read previously published articles in this series click the links below:
- Article 1: Membership contracts: How to protect your club
- Article 2: 12 tips and traps to buying or selling a gym
- Article 3: How to stop PTs from stealing your clients
- Article 4: Copycats – What if someone copies the ‘vibe’ of your gym?
- Article 5: Securing a 24/7 Gym Permit