The question of franchisee/franchisor liability is back in the limelight.
Who is responsible in the event of possible negligence?
This is the question as a Snap Fitness gym franchisee and a contracted personal trainer (PT) were sued by a client who spent more than a week in hospital following a session.
Daniel Popp was checked into emergency when his urine turned “as black as leather” after his first PT session with James William Fallow at Snap Fitness Emerald in August 2014.
“The personal training session Daniel attended was the first he had ever gone to, so he didn’t know any better than to keep going,” said Craig Oliver, compensation lawyer at Shine Lawyers.
“The personal trainer had been telling Daniel to push through the pain and not to give up as he exercised,” he said.
According to the Shine Lawyers statement, after nine days in hospital, doctors diagnosed rhabdomyolysis – the rapid breakdown of seriously injured muscle tissue severe enough to threaten the kidneys.
The discharge summary from Emerald Hospital said it could be caused by “excessive exercise”.
Popp has sued both Snap Fitness Emerald and Fallow for almost $200,000 in damages.
The question remains if there is liability, who is culpable.
Ty Menzies, Snap Fitness CEO, said, “It is our understanding that a factual dispute has occurred between the member, Popp’s version of events and those of Fallon.
“Insurance reports show that Popp suffered from pre-existing medical conditions that he failed to disclose to Fallon or to the club that may have contributed to the physical outcome of the training session.”
While Fallow will proceed to defend his case, Coowee Pty Ltd as Trustee for Fit 4 Emerald Trust (trading as Snap Fitness Emerald), has denied that Fallow was an employee but instead a contractor.
Oliver said the personal trainer does not have insurance or any kind of public insurance.
However, Menzies said that PT contractors can only operate at a Snap Fitness Australia facility once they have signed and agreed to the terms of being a contract personal trainer within the facility. They also require an ABN Registration and fitness qualifications (Certificate III and IV in Fitness).
“As part of our personal trainer contracts a personal trainer must have the suitable insurance including public liability and professional indemnity insurance,” said Menzies.
“In this instance, while it is a requirement it looks that at the time of the incident the personal trainer’s insurance may not have been current.
“All PT’s are also required to go through an induction at their club and participate in the club emergency response team.
“They are required to identify and report any hazard as well as discharge their duty of care when in the club to ensure the safety of members, whether that be related to member conduct or members exercising inappropriately,” he added.
While franchisees screen and hire PTs, Menzies said the franchisor requires a copy of the contract in each case.
Inside Franchise Business contacted James Fallow for comment but did not receive a response prior to publication.
So who is liable?
Rob Toth, partner at Marsh & Maher said, “Franchisors and their directors could be found liable proportionally if it was found that they were in some way negligent in their training of franchisees or if it was found there was a failure.”
“For example, in ongoing training, keeping franchisees up to date or failing to provide a safe system.
“Franchisees would have direct liability to their employees under the OH & S requirements to offer a safe system of work,” he explained.
Toth said franchisees would also be liable to customers if they were found negligent in the services supplied.
“We provide all of our franchisees with a legislatively compliant framework to assist them to manage their work health and safety obligations,” continued Menzies.
He said the brand would undergo a review of the contracted side of the business, as well as scope the possibility of room for contractors and casual employees.