Injury During Exercise At The Gym: ´Recreational Activity´, ´Risk Warning´ And The Construction Of Vague Exclusion Clauses

Belna Pty Ltd v Irwin [2009] NSWCA 46

In Brief

• The court determined that an exercise program undertaken at a gymnasium is a "recreational activity" within the meaning of s 5K of the Civil Liability Act 2002 ("CLA") but there was an inadequate risk warning pursuant to s 5M of the CLA.

Background

• The plaintiff entered into a contract with the defendant by which the plaintiff became a member of the Fernwood Fitness Centre at Parramatta.

• Whilst performing a "lunging" exercise (an exercise involving leg extensions) the plaintiff dislocated her left knee.

• Section 5K of the CLA provides as follows:

In this Division:

Dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.

Obvious risk has the same meaning as it has in Division 4.

Recreational activity includes:

(a) any sport (whether or not the sport is an organised activity), and

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c) any pursuit or activity engaged in at a place (such as a beach,park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

• Section 5M of the CLA provides in part as follows:

No duty of care for recreational activity where risk warning

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff...

(3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.

District Court Decision

• The defendant submitted that it did not owe the plaintiff a duty of care under the general law or under the contract by reason of the fact that the exercise program that the plaintiff was participating in was a recreational activity as defined by s 5K of the Act, and because it had provided a risk warning to the plaintiff in respect of the activity it was not liable for the plaintiff's injuries pursuant to s 5M(1) of the CLA.
• Toner DCJ held that the activities undertaken by the plaintiff were not recreational as she undertook them to lose weight and get fit. Accordingly, his Honour held that the defendant was liable to the plaintiff in negligence and for breach of contract.
• The defendant relied on a disclaimer clause in the contract but Toner DCJ held the clause was "not merely ambiguous, it is highly unintelligible".

Court of Appeal Proceedings

• Ipp JA, who delivered the unanimous judgment, found that the trial judge had erred in his finding that the plaintiff was not engaged in a recreational activity at the time of the accident. His Honour held that the plaintiff was involved in activities of the kind which fall within the ordinary meaning of the word "sport".
• In respect of s 5K(b), his Honour held that despite the fact that the plaintiff stated that her long term goal was to lose weight and become fit, this did not detract from the fact that she took part in the activities for enjoyment, relaxation and leisure. Furthermore, his Honour held that in respect of s 5K(c) the plaintiff was engaged in exercise in a place where "people ordinarily engage in sport". His Honour refrained from expressing an opinion as to whether the definition of recreational activity contained in s 5K is intended to be exhaustive.
• Despite finding that the plaintiff was engaged in a recreational activity at the time of the accident, the defendant still had to satisfy s 5M of the CLA.
• The defendant submitted that the risk warning to the plaintiff was found in the questionnaire that she completed upon joining the gym which stated:

• Ipp JA held that this acknowledgment did not warn the plaintiff of any risk involved in the lunge or any other exercise that she undertook and that it was therefore not a risk warning in terms of s 5M.
• Accordingly, his Honour found that the defendant's arguments based on the CLA failed. However the defendant also argued that clause 7 of its contract with the plaintiff excluded it from liability. Clause 7 provided as follows:

• Ipp JA held that at best Clause 7 provided for a release only after liability has been incurred and would not ordinarily exclude liability for breaches of duty that may occur in the future. His Honour also held that reference to "professional or general liability" may or may not encompass negligence or breach of contract.
• Ipp JA agreed with Toner DCJ's finding that the clause was so vague as to be meaningless and could not reasonably be construed as exempting the defendant from liability.

Implications

• The burden of proof for establishing a defence under s 5M of the CLA falls on a defendant.
• This case confirms that participating in a gym program does fall within the definition of recreational activity as contained in s 5K of the CLA.
• This case highlights the need for fitness centres and gyms to have in place properly constructed exemption and waiver clauses, as well as appropriate risk warnings which cover the risks associated with the gamut of activities that can be undertaken at a gym in order to take advantage of s 5N of the CLA which relates to a waiver of contractual duty of care for recreational activities.

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