Are Your Membership Clauses Effective?

The recent case of a gym member who made a successful claim against a Fernwood Female Fitness club operator for breach of duty and breach of contract "presents a very clear warning to all owners/operators of gyms and other recreational facilities."

Writing in the September/October 2009 issue of Australasian Leisure Management, Darren Boyd, a Lawyer with Lander & Rogers, states that if gyms and their "staff fail to exercise reasonable care and/or you fail to have appropriate clauses in membership/participation contracts then the risk of being found liable for injuries sustained at your facility is heightened."

In the article, Boyd makes reference to the recent decision of Fernwood franchisee, Belna Pty Ltd v Irwin [2009] NSWCA 46, in the NSW Court of Appeal in relation to the duty of care owed by a gym operator to a client who suffered a serious knee injury while performing lunges as part of an exercise program designed by an employee of the gym.

On appeal, the Court of Appeal unanimously agreed that Fernwood breached its duty of care to the plaintiff in failing to make adequate enquiries into the history of the injury and failing to properly warn of the risk involved in the exercise.

The Court of Appeal held that the clause in the contract which purported to exclude liability was beset with problems in that it was "not merely ambiguous" but also "unintelligible". The clause contained various expressions such as, "expressed interest" and "release - from - professional or general liability" which were said to render the clause "so vague as to be meaningless". As a result, the clause did not exclude Fernwood from liability.

Boyd explains his belief "that this case provides an important operational and practical lesson regarding the recreational activities provisions and defences of the Civil Liability Act 2002 (NSW); it is also highly relevant to other states and territories."

The full article can be found in the September/October 2009 issue of Australasian Leisure Management, available to magazine subscribers.

3rd March 2008 - FERNWOOD GOES BOLLY!