Swing, sling and that Liability thing
Pole and aerial sling gymnastics has become a mainstream form of fitness practiced by many gym enthusiasts. It requires significant muscular endurance and coordination. Proficiency is achieved after proper instruction and rigorous training. It should come as no surprise that this past time is no stranger to injury leading to claims against pole studio owners.
The liability of one particular pole studio owner was recently considered in the ACT Supreme Court. Specifically, in Cornwall v Jenkins atf the iSpin Family Trust  ACTSC 34, the court found that an owner and operator of an aerial sling and pole fitness studio did not breach its duty of care to a participant who sustained injuries as a result of a fall in the aerial sling class, which the court found had an obvious element of risk to it.
Whilst participating in aerial sling classes, the plaintiff was using a fabric sling attached to the ceiling to perform fitness manoeuvres. She had been attending such classes for about a year when she fell from the sling and broke both her wrists. The plaintiff brought an action in negligence against the owner of the fitness business, and as occupier of the premises. Although the circumstances surrounding the accident were contested, the plaintiff claimed that the owner had breached its duty of care as no explicit warning was given about the risks of falling from the sling. It was also alleged that thick crash mats, and directions to use spotters, were not provided.
The Supreme Court did not accept that the owner acted negligently or breached its duty of care.
There had been very few instances of people injuring themselves whilst undertaking the manoeuvre at the studio. The judge found that it was reasonably foreseeable that someone undertaking this above ground manoeuvre would suffer an injury if they fell. However, the judge concluded that a reasonable person would have been able to identify the risk of falling from the sling and the owner’s failure to warn the participant would not have prevented the accident from occurring.
The court accepted evidence that the instructor directed that a spotter should be used for sling manoeuvres. The instructor’s alleged failure to supervise the participant would not have prevented the harm because it was not the instructor’s responsibility to prevent participants from acting against her instructions.
In relation to the issue regarding the mats, both yoga mats and thick crash mats were available for participants to use. Although the instructor did not urge participants to use the thicker mats, the court found that a reasonable person in the owner’s position would not necessarily have insisted upon the use of the crash mats due to the fact that the instructor had never witnessed a fall from the sling or injury during years of involvement with the business.
Although the plaintiff’s injuries were clearly suffered by the fall from the sling, the plaintiff failed to prove that they were causally connected to any breach of the owner’s duty to exercise due care. The court’s verdict thus swung in favour of the studio owner.
- This case shows that negligence claims are heavily dependent on the factual and evidentiary matrix to prove matters alleged. A dangerous activity involving an injury may not necessarily result in a finding that the activity was carried out negligently.
- If you owe a duty of care to certain individuals, you should take precautions to warn them of any risks associated with their activities within your care, so that they are able to make their own decision as to whether or not to engage, and how to act.
- A court will assess the reasonableness of measures taken by the owner in a prospective manner, meaning that they will not reason with the benefit of hindsight.
- Although you might not have seen any injury or issue eventuate before, if a certain risk of harm is foreseeable, you should still provide those persons within your scope of duty of care with sufficient protective measures.
- Finding the right insurance coverage to respond to any such disasters to your business is crucial. In the event that an injured person brings legal proceedings against you, damages in the ACT courts can be generous, and you will be well placed to be properly protected from that exposure.
 Vairy v Wyong Shire Council  HCA 62; 223 CLR 422,  – .
Written by Bill McCarthy and Maxine Viertmann.