Fitness services are generally supplied under contracts of service entered into between the providers of the services and the participants/clients (or their guardians). Such contracts govern the relationships of the parties, and may contain express terms dealing with safety matters.
Where fitness services are supplied to a consumer in trade or commerce, the Australian Consumer Law imposes a statutory guarantee that a provider must render such services with due care and skill. [3.0]-[3.2] A provider will be liable to compensate a consumer for any loss or damage suffered as a result of a breach of such guarantee.
In determining whether a provider has been careless, the various state and territory Civil Liability Acts are applicable. Various defences contained in state and territory Civil Liability Acts will also continue to apply to claims for breaches of the statutory guarantee.
The guarantee that services be rendered with due care and skill cannot be excluded by the parties to a contract unless the contract is one for recreational services, which is broadly defined.
Under state and territory Fair Trading Acts, different Fitness Codes of Practice apply to the fitness industry. These Codes are not uniform. Some Codes are voluntary, some are mandatory. [4.1]-[4.2] Apart from the Code of the ACT, the mandatory Codes do not generally deal with health and safety matters.
The differences between the various Codes highlight the need for uniform national standards and a nationally adopted Fitness Code.
Read the full report on legal liability in the fitness industry produced by Bond University, Sports Medicine Australia and Fitness Australia.