In a recent negligence lawsuit in Queensland, Australia, a national gym chain and its personal trainer (PT) have been sued by a client, who was diagnosed with rhabdomyolysis – the rapid breakdown of seriously injured skeletal muscle tissue that can severely damage the kidneys – as a result of an excessive training session (Branco, 2017). The company argued that the PT was an independent contractor and therefore it was not responsible for the actions of the PT, nor did it owe the client a duty of care to ensure PT services at the gym were “provided with due care and skill”.
In common law, where a contract of employment exists, employers can be held vicariously liable for the negligent acts or omissions by their employees in the course of their employment (Turner, 2006). Therefore, it is not uncommon in the fitness industry for fitness facilities to make contractual agreements with group exercise trainers, personal trainers, or fitness instructors as independent contractors to shift the possible liability to that contractor (Sharp, Moorman, & Claussen, 2014).
In general, an employer is not vicariously liable for the tortious conduct of an independent contractor, even though that person was carrying out the work for their company (McGlone & Stickley, 2005; Trindade, Cane, & Lunney, 2007). However, the legal nature of that relationship is subject to a court`s decision, irrespective of how the parties may describe their relationship. Courts have developed various tests over the years for this purpose.
The current approach of the courts is to employ a “multi-facet test” that considers a range of factors relevant to each individual case in determining the relationship. The multi facet test includes, but not limited to, factors such as: (1) degree of control an employer can exercise over a worker; (2) mode of remuneration; (3) provision and maintenance of equipment; (4) obligation to work; (5) hours of work and provision for holidays; (6) deduction of income tax; and (7) delegation of work by a worker (Stevens v Brodribb Sawmilling Co Pty Ltd, 1986).
In Holis v Vabu Pty Ltd (2001) in the New South Wales Court of Appeal, the plaintiff was injured when knocked down by a courier on a bicycle wearing a jacket that identified the respondent`s business. In line with the decision of the trial court, the appellate court held that the couriers employed by the respondents were independent contractors and therefore the respondent was not vicariously liable for their negligence. The plaintiff appealed to the High Court of Appeal. The High Court of Appeal stated that in classifying the bicycle couriers as independent contractors, the Court of Appeal fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories.
Viewed as a practical matter, the High Court drew attention to the fact that the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. Secondly, the evidence showed that the couriers had little control over the manner of performing their work. They had highly restricted working hours and apart from providing their own bicycles and being responsible for the cost of repairs, couriers were required to bear the cost of replacing or repairing any equipment of Vabu that was lost or damaged, including radios and uniforms. Couriers were required to wear Vabu uniform partly to advertise its business. However, the uniform also encouraged pedestrians to identify the bicycle couriers as a part of Vabu’s own working staff. Last but not least, the High Court noted that the couriers did not supplement or perform part of the work undertaken by Vabu or aided from time to time but they rather performed all of Vabu’s operations in the outside world. As a result, High Court of Appeal reversed the New South Wales Court of Appeal’s decision, and concluded that the relationship between Vabu and its bicycle couriers was that of an employer and an employee.
Today the courts would look at the totality of the relationship and consider a wide range of factors when determining whether a worker is correctly an employee, or an independent contractor in determining vicarious liability. Therefore, some of the most important risk management strategies for fitness facilities that employ independent contractors would be to: (1) set up the relationship properly from the beginning of the employment, (2) treat that person consistent with the independent contractor agreement, and (3) develop a list of necessary credentials for the independent contractor (e.g. registration with industry peak bodies, experience, current qualifications, and appropriate insurance) and hire only contractors that meet those criteria.
References:
Branco, J. (July 10, 2017). National gym chain, personal trainer sued after man spends week in hospital. Brisbanetimes.com.au. Retrieved from http://www.brisbanetimes.com.au/queensland/national-gym-chain-personal-trainer-sued-after-man-spends-week-in-hospital-20170709-gx7q1p.html
Holis v Vabu Pty Ltd (2001) 207 CLR 21
McGlone, F. & Stickley, A. (2005). Vicarious liability and non-delegable duties. In Australian tort law, (3rd ed.). Australia: LexisNexis Butterworths.
Sekendiz, B. (2011). An Investigation of Risk Management Practices in the Health and Fitness Facilities in Queensland: Minimising the Likelihood of Legal Liability. PhD Dissertation, ePublications@bond, Faculty of Health Sciences and Medicine, Bond University, Gold Coast, Queensland.
Sharp, L. A., Moorman, A. M., & Claussen, C. L. (2014). Sport law: a managerial approach. (3rd ed.). United States: Routledge.
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) CLR 24; ALR 517
Trindade, F., Cane, P., & Lunney, M. (2007). Vicarious liability. In The Law of Torts in Australia, (4th ed.). Melbourne; Oxford University Press.
Turner, C. (2006). Law of torts. In Australian Commercial Law. (26th ed.). Sydney: Thomson Lawbook.
This article was authored by Dr Betul Sekendiz.