Are you getting recreational services at your Body Attack class?

Kovacevic v Holland Park Holdings Pty Ltd [2010] QDC 279 .

A Brisbane gym operator was recently held liable in contract and negligence after a woman slipped and fractured her ankle during a ‘Body Attack’ class.

Facts

The court accepted that the wooden floor had reduced slip resistance when wet and that the claimant slipped on perspiration on the floor. The class instructor had not taken any steps to prevent or reduce perspiration on the floor, such as checking the floor before the exercise class began or encouraging participants to mop up perspiration.

Negligence

The operator had a duty to take reasonable care to prevent the plaintiff from suffering injury during the class. The judge found it to be reasonably foreseeable that:

• perspiration shed during an exercise class can make this type of floor slippery in spots;
• if a foot lands on a slippery spot under significant lateral force (such as the force involved in the more vigorous Body Attack exercises) the participant could lose footing;and
• loss of footing would make the participant likely to fall, and a fall could produce significant injury.

By failing to take reasonable steps to make sure the floor was dry before starting the more vigorous and forceful exercises, the operator had breached its duty of care to the plaintiff.

Breach of contract and the Trade Practices Act

In defence of the claim, the gym operator raised a contractual argument that the plaintiff had voluntarily assumed the risks of participation. It relied on terms in the gym membership contract to the effect that the plaintiff:

• used the gym at her own risk;
• would not hold the operator responsible for personal injury she suffered; and
• waived any legal claims for any injury, loss or damage she suffered.

The plaintiff counter-argued that those terms were void under section 68 of the Trade Practices Act 1974 (Cth) (the Act) as this term of the contract purported to exclude, restrict or modify the liability of a corporation for breach of terms implied into the contract by the Act.

As the contract was for supply of services to a consumer by a corporation, the Act implied into the contract a warranty that the services would be rendered with due care and skill, and materials supplied in connection with the services would be reasonably fit for the purpose for which they are supplied (the warranty contained at section 74 of the Act).

In response, the defendants relied on section 68B of the Act, which allows contracts for the supply of certain recreational services to exclude, restrict or modify the warranty at section 74 as it applies to liability for personal injury or death.

The judge found that the plaintiff’s contract was not a contract for “recreational services” and therefore the section 74 warranty applied without exclusion, restriction or modification.

His Honour did not characterise participation in the exercise class as being a sporting activity, or an activity for recreation, enjoyment or leisure. He held that the operator had breached the implied contractual warranty and was therefore liable to the plaintiff in contract, as well as in negligence.

If you have any questions regarding this alert, please contact a member of our Insurance team on 07 3231 2444.