As with any profession, the Fitness professional takes on a reasonably expected degree of risk when training a client. This degree of risk can be managed by ensuring that all appropriate procedures are followed at all times. This section is designed to provide the Fitness professional with some background legal terminology and insight into best practice in the fitness industry.
A tort is a private or civil wrong or injury (other than breach of contract) committed upon a person or property as a result of another person’s conduct. The three main areas that the fitness professional should take into account are:
2) Intentional tort
3) Reckless misconduct
Negligence is ascertained based on the whether an individual is seen to have acted below the expected level/ standard of care. The standard of care expected is determined by the level of training/ qualifications of that individual, as well as the fitness club as a whole (Note that the experience of the individual is not relative to standard of care). In a court of law, the ruling will be based on what is known as the “reasonable person test”.
The reasonable person test examines whether a reasonable, prudent person would have acted in the same manner, given the same circumstances. In order for the individual to be seen as negligent, the following would need to be taken into account:
• Duty of care: The Fitness club/ professional are expected to provide the member with a standard of care, based on the duty of care expected in the fitness industry to protect the public. The main aim of the law of negligence is that it protects people from risks which are foreseeable.
• Breach of duty: This is determined by comparing actual conduct with the standard of care expected of the defendant, based on his/ her qualifications.
• Causation: Did the misconduct of the defendant cause the injury?
• Damages: What were the damages caused? The court will look at pain, suffering, loss of wages etc.
The following is a list of possible danger areas in a fitness club:
• Floor surfaces
Employees at the health facility should be aware of the dangers of slippery surfaces/ surfaces which may cause harm. When surfaces are slippery during cleaning, signs should be visible that warn members of the potential danger of the surface. Any water spills in the fitness facility should be acted upon immediately e.g. in a studio environment.
Regular maintenance checks should be made, and maintenance records kept. If equipment needs to be maintained, a sign should be put on it which states “Out of order.”
• Lack of supervision
The Health Club Manager and Fitness Manager should ensure that Group fitness instructors monitor all members in a class environment. Classes provided should cater for all categories of member e.g. beginner, intermediate and advanced.
Members should be warned of the risks of any activity undertaken.
• Medical care
The health club is expected to provide a standard of care reasonably expected in any emergency situation at the facility. The questions that the Manager should be asking are, “Is the First aid adequately stocked, are trained personnel available at all times, and is there a route of entry for an ambulance?” The response by the Health club will be evaluated in terms of the time taken to respond, the level of care provided and whether the injury was aggravated by the care provided. It is important to note that under the law of vicarious liability, the Health Club Manager may potentially be liable for the actions of staff.
In reality, it’s sometimes difficult to completely avoid injury at all times. In law there is deemed to be “an assumption of risk.” The assumption of risk states that the activity has certain risks which are inherent. The individual willingly chooses to participate in the given activity and is aware of the risks e.g. if a person take part in an aerobics class and strains a muscle whilst participating, the assumption of risk would be relevant.
Personal trainers and negligence
Personal trainers may work in a Health club as either an employee or an independent contractor. Should the Personal trainer be an independent contractor, and he/ she is responsible for a negligent act, liability will shift to the Personal trainer. It is essential that all Personal trainers take out Professional indemnity insurance, so as to protect from acts of negligence, whether employed or an independent contractor.
The following is a sample Legal Liability Checklist (note that this list does not cover all possible legal liabilities, but is intended to provide an example):
• Are all staff working at the facility adequately certified?
• Are all new members taken through an orientation program?
• Are all members of staff aware of health and safety policies and are safety warnings posted/ visible where necessary?
• Does the facility have enough staff qualified in emergency procedures?
• Is the First aid kit adequately stocked in case of an emergency?
• Is equipment inspected regularly and documented?
• Has a health and safety audit been undertaken and have all relevant changes been made if necessary e.g. gym layout, fire hazards, emergency escape routes etc.?
• Are all new members screened and a PAR Q used to identify high risk members?
• Does the organisation provide employees with an employee contract and employee code of conduct?
• Does the organisation have clear policies in place which document how to deal with violations of personnel policy?
2) Intentional tort
As the name implies, this refers to the willful action of an individual which results in damage. Damage could be physical, slander (false or defamatory statements), or libel (defamatory written statements or even fraud). An example of intentional tort would be if a member of the gym/ staff member willfully punched a member. This member/ employee could then be responsible for damages.
3) Reckless misconduct
This is less common than intentional tort and negligence. Reckless misconduct is more common in group exercise environments. An example would be if a member was playing squash and was deliberately ‘’blocked’’/ stood ground” (as part of a strategic play) by the Personal trainer playing with him/ her, causing the member to collide and fall and injure him/ herself. The act of “blocking” would be seen as contrary to accepted rules, reckless, and resulting in the injury. The conduct is not an intentional tort, and it is usually performed without intention to harm anyone.
The role of a contract
Most fitness facilities will expect the member of public to complete some form of an agreement. The type of agreement will be dependent on the nature of the relationship between the facility and the person entering the facilities. In law, persons entering the facility will be classified as an invitee, licensee, trespasser or recreational user. The type of agreement and expectations from gym differ according to the nature of relationship.
Some health clubs may expect the individual to sign “an agreement to participate.” The agreement to participate strengthens the defence case which relates to assumption of risk. Most facilities will however enforce some sort of a “waiver.” The waiver is intended to protect the health club, should injury arise out of the negligent behaviour of a member of staff. Although this contract provides a degree of protection, it does not mean that the health club is free to act negligently!