It is that time of year when your waistline regrets the over-indulgences of Christmas and New Year’s resolutions are made. For many this involves joining a gym or taking up other physical pursuits.
Reading the small print
It is likely that before starting your activity of choice you are asked to sign a contract. This usually includes a term that states you undertake the activity at your own risk and that the organiser is not liable for any injuries caused. An example of such a term or disclaimer tends to be phrased along the lines of
“We will not be liable to you in respect of any personal injury (including without limitation serious injury or death) that you may suffer or sustain directly or indirectly as a result of attending abc gym, nor will we be liable to you in respect of any other losses arising as a result of any such personal injury”
Generally, in our eagerness to get going, the contract is not usually read in much detail and even if we notice such a clause, the contract is signed for fear that otherwise, the organisers will not let you take part.
In the event of an injury, organisers will attempt to rely on this type of clause in your contract to avoid liability; this is not strictly true. Under the Unfair Contract Terms Act 1977 (UCTA) organisers cannot exclude or restrict liability for personal injury or death caused as a result of their negligence. This rule applies in all circumstances.
Further, contracts with consumers are governed by the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR). Schedule 2 to the UTCCR states that the following would be unfair:
“excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier”
The position in law is therefore clear. If you have signed a contract which contains a disclaimer clause, the Law will deem the exclusion of liability unfair and therefore, if you have sustained injury, you will still be able to make a claim if the organisers have been negligent.
Further information can be found in the Office of Fair Tradings Guidance on unfair terms in health and fitness club agreements.