All images are for illustrative purposes only. Image above Credit: Shutterstock
Gone too Far? Dr Betul Sekendiz questions limitations of liability he health and fitness industry is an important contributor to the national economy through direct and indirect savings T in health care costs and productivity associated with the promotion and benefits of regular exercise. Despite its important and significant role in the health and wellbeing of the general population, the standardisation of the fitness industry in Australia has been self-regulatory -with the exception of fair trading and contracts. In several states and a territory, there are mandatory codes of practice specific for fitness service suppliers to protect consumer rights. These are: •Australian Capital Territory - Fair Trading (Fitness Industry) Code of Practice 2009 (ACT) •Queensland - Fair Trading (Code of Practice - Fitness Industry) Regulation 2003 (Qld) •Western Australia - Fair Trading (Fitness Industry Code of Practice) Regulations 2020 (WA) •South Australia - Fair Trading (Fitness Industry Code of Practice) Regulations 2007 (SA) Consumer Affairs Victoria (CAV) has also published guidelines for the fitness industry based on case law and has been actively working with fitness service suppliers to remove or modify potentially unfair consumer contract terms by businesses. These include automatic renewals and variation to services without a notice, penalties for member cancellation, and penalties for breaches of contract. Another area of contract terms regulated under the consumer protection laws is the limitation of liabilities. Under Australian consumer laws, fitness service suppliers can incorporate exclusion clauses or waivers into their contracts to prevent the signers from holding the facility and their employees responsible for injuries that occur during an activity. 36 Australasian Leisure Management Issue 153
The laws and the use of waivers In Australia, under the Australian Consumer Law (2010) (Section 60 in Schedule 2 of the Competition and Consumer Act 2010 (Cth)[CCA] formerly known as the Trade Practices Act [TPA] 1974) all consumer contracts have a warranty that the supply of services will be rendered with due care and skill. Section 64 of the Australian Consumer Law makes any term of a contract invalid that aims to exclude, restrict or modify the application of this consumer warranty. As a result of the Tort Reforms in Australian law two decades ago (which focused on reducing general damages payments for minor claims and eliminating trivial claims), the Trade Practices Amendment (Liability for Recreational Services) Act 2002 section 68B was incorporated in the TPA, that allowed certain recreational services to use exclusion clauses or waivers to limit or exclude liability for negligence and/or breach of an express or implied warranty that the services would be supplied with due care and skill, fit for purpose, and within a reasonable time (when no time is set). Relevant provisions can be found in the CCA section 139A, some state and territory fair trading laws, and similarly in the Civil Liability Acts (CLA) of Western Australia and NSW. The legislation describes a recreational service as a sporting activity or a similar leisure-time pursuit, or any other activity that involves a significant degree of physical exertion or physical risk and is undertaken for recreation, enjoyment and leisure purposes. These reforms were purported to be necessary by the government to preserve the ‘Australian way of life’ as a result of the perceived crisis in public liability insurance and the emerging ‘litigation culture’, which was later criticised for having no empirical foundation. There were also concerns that limitation of liabilities granted
