One of the joys of being a lawyer is that your friends ask your advice on every legal issue from parking tickets to extradition, regardless of your area of practice. Recently a friend asked me whether he should sign an agreement with his personal trainer, which excluded liability for everything I could think of and some things that would never have crossed my mind. My friend is a fan of the ABC program The Checkout, which provides entertaining and accurate information about consumer rights, and thought that this could not be legal. Was he right?
The Australian Consumer Law (ACL) sets out consumer guarantees, which apply to most goods and services that are acquired for personal or domestic use, or which have a price of no more than $40,000. The consumer guarantee for services requires the services to be provided with due care and skill, and reasonably fit for any purpose specified by the consumer. If my hairdresser uses the wrong dye and turns my hair green when I asked for ash blonde, he would have breached these consumer guarantees. The ACL states that these consumer guarantees cannot be excluded by agreement.
However, providers of ‘recreational services’ are allowed to exclude liability under these consumer guarantees. This exception is not in the ACL itself, but in the legislation which implements the ACL as Commonwealth, State and Territory legislation. This exception was inserted as a result of concerns that insurance for providers of high risk activities such as hang-gliding and horse riding was unaffordable or unobtainable, given the high levels of compensation awarded for catastrophic accidents.
Section 139A of the Commonwealth legislation (the Competition and Consumer Act 2010) defines recreational services as services that consist of participation in:
a) a sporting activity or similar leisure time pursuit; or
b) any other activity that:
i. involves a significant degree of physical exertion of physical risk; and
ii. is undertaken for the purposes of recreation, enjoyment or leisure.
“Well” I said, “I don’t think personal training is a sporting activity or even a similar pursuit to a sporting activity. I will happily agree that personal training involves a significant (or indeed excessive) degree of physical exertion or risk or both, but you could force me to do a hundred crunches and I would still refuse to admit that it could possibly be undertaken for recreation, enjoyment or leisure. After all, the treadmill was a method of punishing prisoners in the nineteenth century and the music played in gyms breaches the international convention against torture”.
In any case, even if personal training were a recreational service, the clause in question was not permitted by section 139A of the Competition and Consumer Act. This section only permits clauses that limit or exclude liability for personal injury or death only. The clause my friend had been asked to sign also excluded liability for loss or damage to property. Why a recreational service provider should be able to exclude liability for blinding a client, but not for breaking her glasses, is a question I am not qualified to answer.
“Further” I said, “since your personal trainer is in Victoria, they have to comply with both the Commonwealth Competition and Consumer Act and the Victorian Australian Consumer Law and Fair Trading Act. The recreational services exception in the Victorian Act is not identical to the one in Commonwealth Act, and sets out wording that must be used to warn the Legal Services consumer that they are signing away rights to compensation for personal injury or death”. The document my friend had been asked to sign did not include the magic words.
Finally, the personal trainer may well have contravened section 18 of the ACL which prohibits misleading deceptive conduct in trade or commerce, by leading clients to believe that they had signed away their rights to compensation when this was not the case. Sometimes there isn’t a simple answer to a simple question, but you will never know if you don’t ask.