The duty of care and personal trainers – what is the standard of care?

Personal trainers, group fitness instructors and other fitness professionals are inspiring people who help you achieve your goals. Personable, sparkly and likeable, it is easy to see your personal trainer through a halo like lens. Until something goes wrong. Clients may be surprised by the relatively limited scope of the duty of care owed by some fitness professional, especially more experienced personal trainers who are held to the ordinary standard of a reasonable personal trainer despite their higher level of experience. This blog post looks at the duty of care and standard of care required by fitness professionals. This blog post does not cover other components of negligence, contributory negligence, the provisions of the various state Civil Liability Act regimes, or the vicarious liability of a fitness professional’s employer.

Duty of care – basic principles

To successfully pursue a negligence claim, the claimant must establish:

1.    There is a duty to take reasonable care and this duty was owed at the time of the negligent act;

2.    Negligent conduct on the part of the defendant; and

3.    The claimant suffered damage as a result (that is not too remote).

This blog post focuses on the first element only, the nature of the duty of care. There are only a few cases concerning a personal trainer’s duty of care that have made it to the higher courts in Australia. Most cases settle before court. Due to the limited body of case law, the nature of the duty of care a fitness professional owes to a client in a particular context will ordinarily have to be extrapolated from first principles. Two questions need to be answered:

1.    Does the duty of care arise?

If a personal trainer is giving you advice or training you as a client, a duty of care arises. The personal trainer/client relationship is an established professional relationship in which a duty of care arises, similar to the doctor/client and financial adviser/client relationship. The gym will have a duty of care to anyone who can reasonably be expected to be on the premises, including clients and potential clients.

2.    What is the standard of care?

The standard of care is an objective measure. In the context of a fitness professional, the standard of care is that of a reasonable person in the position of the fitness professional. A personal trainer will be measured by what a reasonable personal trainer would do. Industry standards will be important in determining the standard of care and certain minimums will apply to all fitness professionals. For example, all personal trainers, regardless of the level of their qualification will be expected at a minimum to follow Fitness Australia’s guidelines including the Code of Ethics, Exercise Referral, and Pre Exercise Screening guidelines. Other guidelines may also be used by courts to identify the standard of care including the resistance training guidelines developed by the American College of Sports Medicine. In addition, where a personal trainer works at a fitness centre, any guidelines or policies developed by that fitness centre will be considered when determining the appropriate standard of care.

Does the standard of care vary depending on the personal trainer’s level of experience?

No. The standard of care is that of a reasonable personal trainer, regardless of whether the trainer has worked in the industry for one month or ten years. This principle can be extrapolated from the case of Imbree v McNeill (2008) 236 CLR 510, where the High Court had to decide whether a lesser standard was owed by a driver who is a learner driver. The High Court concluded the standard of all drivers is the same being the standard of a reasonable driver. A learner driver is not held to a lesser standard of care due to their inexperience (see [72] per Gummow, Hayne and Kiefel JJ). The main policy reason behind recognising negligence and other torts is to compensate injured plaintiffs, and a variable standard of care dependent on experience would minimise this policy objective. A personal trainer in their first week of work will be held to the same standard as a personal trainer who has 8 years of work experience. Clients who are paying more for a more experienced personal trainer will not necessarily receive a greater standard of care. Note that experience needs to be viewed separately to qualifications. For example a fitness professional with a Diploma in Sports Science will likely be held to a different standard of care to a fitness professional with a Certificate V in Fitness. 

Australian cases

1. Belna Pty Ltd v Irwin [2009] NSWCA 46

Belna Pty Ltd v Irwin [2009] NSWCA 46 concerned a woman Ms Irwin who had fallen over in a shopping center and dislocated her knee several years before seeking personal training services. Ms Irwin joined Fernwood Fitness in Parramatta where she received personal training services from Ms Bekiaris. Ms Irwin wrote on her screening form that she had fallen over in a shopping center and sustained a knee injury. Ms Bekiaris asked whether she had experienced any problems with her knee since then and Ms Irwin replied her knee was fine and she had no problems. Ms Irwin made it clear she wanted to ensure any exercises prescribed did not damage her knee.

Ms Bekiaris wrote Ms Irwin a program that included lunges. On her first attempt at the lunges Ms Irwin’s leg gave way, she fell to the floor, was taken to the hospital and was found to have dislocated her knee.

The Full Court held that it is well known a history of knee dislocation makes the knee prone to further dislocation and that requiring a person to do a lunge exercise without prior training or preparatory work exposes the knee joint to a high risk. A reasonable personal trainer having been told of a new client’s prior dislocation would have sought a proper history of the injury and made closer inquiries about the nature of the knee injury including any rehabilitation undertaken.

The case also concerned s.5M of the Civil Liability Act 2002 (NSW) which provides there is no duty of care for recreational activities where there is a risk warning. At first instance the District Court held that Ms Irwin’s personal training was not “recreational” because she did it for weight loss purposes. The Full Court held the District Court judge erred in his reasons. The personal training was “recreational”, but as Ms Irwin was not warned about the risks involved in lunging or in any other activity she undertook s.5M did not prevent a duty of care arising.

There was an exclusion clause in the Fernwood contract, but the Court of Appeal held that it was ambiguous, vague, and unintelligible such that it did not exclude Fernwood from liability.

2. David Michael Wilson v Nilepac Pty Limited trading as Vision Personal Training (Crows Nest) [2011] NSWCA 63

See also first instance decision of Justice McCallum - David Michael Wilson v Nilepac Pty Limited trading as Vision Personal Training (Crows Nest) [2009] NSWSC 1365 (10 December 2009).

Mr Wilson, a Sydney based barrister specializing in insurance, compensation and medical negligence legislation, purchased a package of cardio and weights sessions from Vision Personal Training at Crows Nest, and was allocated Mr Alex Draffin as a trainer. Four weeks into the program, Mr Wilson sustained a lower back injury (prolapsed disc). Mr Draffin was a 20 year old who had only recently completed his personal trainer qualification and only recently been employed by Vision. Mr Wilson claimed his back injury occurred during phase 2 of the program when he carried out two “dangerous” exercises – a horizontal leg press and a medicine ball catch abdominal exercise. The training session where Mr Wilson claimed the injury had been sustained occurred on the Saturday and by the Monday he had back pain. During his time training prior to the incident Mr Wilson did not complain to Vision of any back pain. Mr Wilson alleged four categories of breach of duty being the specific leg press exercise, the specific abdominal medicine ball exercise, the systems under which Mr Wilson’s training plan was established (including the allocation of Mr Draffin as his trainer), and general allegations in relation to the exercise programme delivered.

At first instance Justice McCallum found that the trainer and Vision had not breached a duty of care towards Mr Draffin. In relation to the four categories of breach of the duty of care alleged:

1. Vision systems and allocation of Mr Draffin as trainer

Mr Draffin had a Certificate III and IV in Fitness and was suitably qualified to be a personal trainer. Justice McCallum also held that Mr Draffin’s supervision, training and induction at Vision was sufficient and that it was not negligence for Vision to allocate Mr Draffin as Mr Wilson’s personal trainer. Vision’s duty of care did not extend to supervising the implementation of every programme undertaken by Mr Draffin for every client in the gym. Justice McCallum did not find any error on Vision’s part in the client’s induction programme. This finding was not at issue on appeal.

2. Exercise programme delivered

Mr Wilson made a series of allegations about the programme delivered including that the programme was unsuitable given his age and/or level of fitness, that the programme permitted or required Mr Wilson to perform exercises beyond his capacity, and that the programme did not include adequate core muscle-strengthening exercises, warm ups or rest between sets. Justice McCallum was not satisfied Mr Draffin had failed to take the precautions a reasonable personal trainer in his position would have taken. Mr Wilson appealed this finding in relation to the programming of the abdominal exercise with the medicine ball (see discussion below).

3. Horizontal leg press

The horizontal leg press was performed with a very heavy weight. Mr Wilson was not instructed on the importance of pushing the lower back/spine against the supporting pad which is important to minimize the risk to the lower spine. Justice McCallum found the posture issue was caused by Mr Wilson’s height and the structure of the leg press machine rather than Mr Draffin’s instructions. Mr Wilson also complained the intensity of the leg press exercise was excessive as he had been increasing in increments and was lifting 200 pounds on the day the injury allegedly occurred. Justice McCallum was not satisfied a reasonable personal trainer would have known to stop at 190 pounds and not progress to 200 pounds and it is only hindsight that makes it appear unreasonable. Intensity is a matter of perception and although Mr Draffin selected the weights for Mr Wilson’s sessions, Mr Draffin often asked whether Mr Wilson was ok with the weights. The findings regarding the horizontal leg press were not at issue on appeal.

4. Abdominal exercise with medicine ball

The evidence on the nature of the abdominal exercise with the medicine ball was conflicting. At first instance, Justice McCallum decided Mr Wilson performed medicine ball crunches with side twists at the top of the crunch, not medicine ball sit ups. The differentiation between a crunch and a sit up was important as a sit up was considered by the expert to be an advanced abdominal move not suitable for a person of Mr Wilson’s experience. The medicine ball weighed 5.4kg. Mr Wilson argued that the exercise was inappropriate due to the use of a medicine ball and the twisting motion. Mr Draffin had learned this exercise in his course and it was commonly used by other trainers at Vision. Justice McCallum found a reasonable personal trainer would have taken the risk of prescribing the medicine ball twist exercise. The exercise was tried once, Mr Wilson was unable to do it, so Mr Draffin regressed Mr Wilson back to crunches.

Mr Wilson submitted that the standard of care owed to him was higher than that owed at a normal gym as he had paid more money to train at Vision. Justice McCallum rejected this submission, identifying the standard of care as that of a reasonable personal trainer and a reasonable personal training studio. The fact Mr Draffin was a very junior personal trainer did not lower or otherwise affect the duty of care owed. While Justice McCallum held the abdominal medicine ball exercise most likely caused the injury, her Honour found no breach of the duty of care.

Mr Wilson appealed the findings relating to the medicine ball abdominal exercise to the NSW Court of Appeal. Mr Wilson argued that the expert evidence of exercise physiologist Mr Chris Tzarimus in relation to the use of medicine ball and side to side movements in the crunch exercise should have been accepted and that a reasonably competent professional fitness trainer in the position of Mr Draffin would not have prescribed the exercise. 

The Court of Appeal held that the evidence of Mr Tzarimus regarding the appropriateness of the medicine ball exercise should have been considered and overruled Justice McCallum’s findings in relation to duty of care, finding Mr Draffin had breached a duty of care to his client in relation to prescribing the abdominal medicine ball exercise.

Tobias JA (with whom Beazley JA agreed) found a reasonable personal trainer would not have prescribed the medicine ball exercise. A reasonable personal trainer would have desisted from prescribing the exercise until satisfied that the client is sufficiently advanced in terms of abdominal strength to have the capacity to undertake the exercise without risk of harm to the spine.

Whealy JA agreed with the other Court of Appeal judges, finding that a reasonable personal trainer should have realized “more care should have been taken, and caution exercised, in acclimatizing the appellant to the basic medicine ball exercise before considering whether additions should be made to it. There is no doubt, as the primary judge found, the medicine ball exercise, with its variations, was the cause of the injury”.

3. Fitness First Australia Pty Ltd v Vittenberg [2005] NSWCA 376

In the course of a circuit class at Fitness First Bond Street in Sydney, Ms Vittenberg severely injured her leg when using a seated leg curl machine incorrectly.

A trainer at Fitness First was taking a circuit style class in which Vittenberg was participating. There were 30-35 people in attendance. At the start of the class the trainer asked whether anybody was suffering any injuries and whether anyone was new. This was Ms Vittenberg’s first circuit class at Fitness First but she did not respond to the trainer’s prompt as she had completed circuit classes at previous gyms. Ms Vittenberg was an experienced gymgoer and had used a number of machines before including a leg extension machine. At the time of Ms Vittenberg’s injury in February 2001, the seated leg curl machine was a recent development, not commonly found in gyms, and had a similar appearance to the leg extension machine. Ms Vittenberg believed the machine to be a leg extension machine, proceeded to use seated leg curl machine incorrectly and severely injured her leg. 

At first instance, the District Court held the trainer taking the class and Fitness First had acted negligently in failing to provide adequate instruction in using the machine and failing to provide adequate supervision in using the machine. Fitness First appealed, submitting that the group fitness trainer had acted reasonably by asking participants at the start of class whether they have any injuries, thereby allowing participants to come forward for individual instruction if required. Fitness First also submitted it had sufficiently warned of the risk as the seated leg curl machine included a diagram showing the correct usage. The District Court judge held that the diagram was not sufficient to provide instruction on use of the machine, especially in the context of the purpose of the class which was for participants to work hard and move rapidly from machine to machine. The Court of Appeal agreed with this analysis that in the context of the class, the sign was insufficient to mitigate the risk.

In regards to the duty of care owed by a registered fitness leader or group fitness instructor, the Court of Appeal held the fitness instructor’s general inquiry was not sufficient and that a reasonable fitness instructor in the context will have made a more specific inquiry of participants as to whether any member of the class was not familiar with the circuit machines in the gym, which would then invite explanation and demonstration. This question should be asked and demonstrations undertaken even if it meant a delay to the class.

Key message for clients

Tell your trainer everything about your injury and tell the truth and the whole truth in the pre-exercise screening process. Even if your injury occurred two or three years ago and you consider yourself completely recovered, mention the injury and any rehabilitation undertaken and make sure your trainer has written your response down on the pre-screening form. This may be an important piece of evidence later if required. The disclosure of this information may require you to obtain clearance from your GP or an allied health professional but is worth the delay to ensure safe training.

When your trainer asks you how you are feeling on a particular day be honest and tell them about that niggling hamstring pain. While a reasonable personal trainer will make inquiries as to injuries prior to training, a reasonable person trainer will not be expected to know about injuries they had no indication existed. Communication with your personal trainer will help keep you safe and help ensure injuries do not happen in the first place.

Paying more for an experienced personal trainer will not increase the trainer’s standard of care. In the law of negligence experienced personal trainers will be held to the standard of a reasonable personal trainer, not the highest ability level of the particularly experienced trainer.

Key message for fitness professionals

Personal trainers should be aware of the standard of care they are held to - that of a reasonable personal trainer. This is only a minimum standard and for the sake of the industry, personal trainers should aim to perform above this level. Junior personal trainers should be aware that the standard of care does not take into account their low level of experience. Junior trainers should ensure they are part of an induction and ongoing educational program, should receive supervision and be part of an ongoing training program. While supervision is important, the supervision does not require every program written by the junior trainer to be reviewed by their supervisor or employer. The pre-screening process needs to be taken very seriously. Any mention of injury should be followed up by a series of further questions. Personal trainers should take out third party insurance in the case of a negligence claim.

Group fitness instructors should be aware that asking a general question as to injuries may not be sufficient to discharge their duty of care. Group fitness instructors should consider the exact equipment to be used in the class, specifically ask if anyone has not used the equipment and provide an explanation and demonstration on correct use of that equipment where prompted by a response. Even if the class is equipment free and only bodyweight is used, a reasonable group fitness instructor should ask if participants are familiar with the moves and if not provide instruction and demonstration. This is the standard courts have held a reasonable group fitness instructor to. Group fitness instructors should also obtain third party insurance.