Personal Gym Injury, i need some help!

[TimBell]

Hi, I'm 16 years old, and last October i joined the local gym. My mum signed me up to a year membership. When she signed me up she spoke to a rather rude manager who was incharge of memberships. She was abit apprehensive about signing me up because i could sustain an injury that could prevent me from joining the defence force which i later hope to do. But this manager reassured her that nothing would happen to me under there duty of care, and that there would be no way for me have an injury because as soon as i join up, they would assign a personal trainer for me and develop a program tailing to what i would hope to do at the gym ...

As soon as i signed up there was no personal trainer to help me, and there wasnt one for a month and a half. The worst thing is that i had to request this certain manager that was so eager to sign me up previously, to contact me when i was going to have my personal training session on a regular basis during this month and a half period. In this month and a half of having no one to instruct me on proper technique and on what to lift and of how much to lift which is a must if you want to prevent an injury, i had to use the gym as best i could. Through this (i feel to be negligence on their behalf) i sustained a subacromial bursitis with impingement in my left shoulder after using one of the machines. So far this injury has cost me in excess of $250 in medical bills.

I was just wondering, if i would be able to lodge a case against this gym.

 

[NYClex]

it is not possible to answer this without knowing the actual contract you (or your mom in this case) signed.

If the contract spells out that a personal trainer should be there all the time to assist you and there was none, then you might have a case.

One would also have to have a look at the contract in regards to assumption of risk and other provisions shielding the gym from liability.

If your injury will continue to bother you or get more expensive it might be worth going to an attorney and have him look at the contract and the problems.

 

[TimBell]

there was a terms and conditions sheet that says:

In addition, by signing your agreements you consent to
* Release Zest, its employees and agents from any claim that may be made by you, or other parties, for any injury or death caused to you or loss or damage caused to your property.
*And that you agree not to bring any claim against Zest, its employees or agents in the event that you sustain any personal injury or suffer any property damage or loss whilst at the club.

Then on the contract it has written, being the parent or guardian of the above member, confirm that i have recieved, understood and agreed to Zest Health Club Membership Terms and Conditions. I indemnify Zest Health Clubs Pty Ltd against any claim, of whatever nature, that i may bring against Zest Health Clubs Pty Ltd as if i were a member. (and then it has where my mum signed it)

but even though she signed this contract, doesnt it make it void if its shown that the club was negligent in there duty of care ?? they assured my mum when she first began speaking to them about joining me up, that i would recieve 2 free personal training sessions on joining the gym. they specifically said As Soon as i joined up i would receive these 2 sessions and that the qualified trainer that would be taking me would tailor a plan to what i wanted to do and what machines i chose to do. but a month and a half passed before i got my 2 personal training sessions. (in which they eventually allocated to me after i continously hounded them about it periodically) and in this month and a half period i injured myself because i wasnt shown proper technique and so on (negligent on there behalf here) .... so arent they no matter what liable for my injury ??

 

[NYClex]

There is a lot that could be said against the gym. First one could argue that there are breach of contract and tort.

A breach of contract could be argued has occurred because the personal trainer has not been provided.

A tort, here probably negligence, has been occurred because you have been injured using one of the machines. It can be argued that the gym had a duty of care that you would not be injured.

There might be other torts involved.

Now, the gym will come with the disclaimer your mom has signed. This disclaimer is a contract saying: "I promise not to sue for exactly these things that happened, torts, breach of contract etc."


Now this kind of contract can be legal, but more often than not it is seen by courts to be unfair. It would be legal and upheld by the courts if it is clear that both sides knew what they were getting into and both sides had comparable power of bargaining. But in cases where one side seems to abuse their stronger bargaining power the courts are very sceptical.

Often a contract like this is what the law calls an "adhesion contract." That is a standardized form in a setting with a gross disparity of bargaining power. In other words, the gym said: these are my terms, take it or leave it. I won't negotiate on that. And I know that you probably even don't realize that you are giving away all your rights.

The courts can find such a clause to be "unconscionable", that means "shockingly unfair." In such a case a court would not enforce it, meaning you could sue the gym regardless of the disclaimer.

This posting cannot cover the scope of these aspects of torts and contracts law or go into it deeper. If your injury is more serious than superficial and if there is considerable cost involved you really should go and see an attorney. As you see, there might be ways to take action against the gym.

 

[TimBell]

thanks alot hey, i was abit unsure about where i stood with whats happened .. but yeah thanks for your help, i just spoke to my mum then and shes going to either contact legal aid or an attorney and ask them if i have a case or not .. im just worried that my shoulders permanently damaged because of this incident ...