Limiting or Excluding Liability in the Australian Fitness Industry

The concept of risk management in the fitness industry can refer to at least two, quite different, mechanisms for minimising risk. One of these mechanisms is to control programmatic risks such as accidents or injuries that can arise from the fitness services provided by the fitness service providers. The most desirable means of controlling programmatic risks for fitness service providers would be the minimisation of the accidents and injuries by providing reasonably safe services in line with the best practices in the fitness industry. 

The second type of risk management mechanism is to control the financial risks pertaining to the costs of legal claims in negligence resulting from the occurrence of programmatic risks, in other words, minimising the financial consequences that may flow from programmatic risks. This is commonly done by either or both of two means. First, one can minimise the financial risks of accidents or injuries by minimising the likelihood of legal liability being imposed after an injury. This can be done by means of contract terms that exclude or limit legal liability, that is, contractual exclusion clauses, or ‘waivers’ or ‘disclaimers’ as they are commonly called in the fitness and recreational sport industry (though the strict legal meanings of these terms differ to their more common usage and the most accurate legal descriptor of contract terms that exclude or limit liability is ‘exemption’ or ‘exception’ clauses). 

Importantly, as we shall see below, there are significant risks associated with such clauses and they may not be effective in achieving the aim that is sought to be achieved. Unless carefully drafted and appropriately provided to a client, such clauses may not in fact exclude, avoid or limit the legal liability, even where the law permits such exclusion clauses. 

Read the full report on legal liability in the fitness industry produced by Bond University, Sports Medicine Australia and Fitness Australia.

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