Legal risk management and injury in the fitness …...Legal risk management and injury in the fitness industry: The outcomes of focus group research and a national survey of fitness

Legal risk management and injury in the fitnessindustry: The outcomes of focus groupresearch and a national survey of fitnessprofessionals

Patrick Keyzer, Ian R Coyle, Joachim Dietrich, Kevin Norton,

Betul Sekendiz, Veronica Jones and Caroline F Finch*

The Australian Fitness Industry Risk Management (AFIRM) Project was set upto explore the operation of rules and regulations for the delivery of safe fitnessservices. This article summarises the results of recent focus group researchand a national survey of risk management practices by the AFIRM Project. Ourfocus group research in four States identified the following most importantconcerns: (1) the competency of fitness professionals; (2) the effectiveness ofpre-exercise screening and the management of de-conditioned clients; (3)poor supervision of fitness service users and incorrect use of equipment; (4)fitness trainers failing to remain within their scope of practice; (5) equipmentmisuse (as distinct from incorrect use); and (6) poor fitness training environ-ments. This information was then used to develop 45 specific items for aquestionnaire that was disseminated throughout the fitness industry. Thesurvey, which is the largest ever conducted in the Australian fitness industry(n=1,178), identified similar concerns. Our research indicates that efforts toimprove risk management in the fitness industry should focus, first andforemost, on the development and monitoring of safety policy, and improve-ments in the education and training of fitness instructors to ensure that theycan incorporate risk management practices.

INTRODUCTION

Australia is experiencing an increase in health challenges associated with physical inactivity. In 2009the Obesity Working Group of the National Preventative Health Taskforce wrote:

Health problems related to excess weight impose substantial economic burdens on individuals, familiesand communities. Society as a whole bears the economic brunt. It has been estimated that the overallcost of obesity to Australian society and governments was $58.2 billion in 2008 alone. The total directfinancial cost of obesity for the Australian community was estimated to be $8.3 billion in 2008. Of thesecosts, the Australian Government bears over one-third (34.3% or $2.8 billion per annum), and stategovernments 5.1%. This estimate includes productivity costs of $3.6 billion (44%), including short- andlong-term employment impacts, as well as direct financial costs to the Australian health system of

* Patrick Keyzer: Professor of Law and Public Policy, and Head of School, La Trobe University School of Law. Ian R Coyle:Professor of Psychology and Human Factors Engineering/Ergonomics, Professorial Associate, Centre for Law, Governance andPublic Policy, Bond University; Adjunct Professor, Department of Psychology, University of Southern Queensland; AdjunctProfessor, School of Psychology, Deakin University; Principal, Australian Forensic and Personal Injury Consultants Pty Ltd.Joachim Dietrich: Professor of Law, Bond University. Kevin Norton: Professor of Exercise Science, School of Health Sciences,University of South Australia. Betul Sekendiz: Lecturer, Exercise and Sport Management, Central Queensland University.Veronica Jones: the Outsource Place and Senior Research Assistant, AFIRM Project. Caroline F Finch: Robert HT SmithProfessor and Personal Chair, Australian Centre for Research into Injury in Sport and its Prevention, Federation University. Theauthors thank Nirmala Perera, Shannon Gray and Dr Peta White for their assistance. This project is funded by an AustralianResearch Council Linkage Project (LP120100275) in partnership with Fitness Australia and Sports Medicine Australia.

Correspondence to: [email protected].

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$2 billion (24%) and carer costs of $1.9 billion (23%). The net cost of lost wellbeing (the dollar valueof the burden of disease, netting out financial costs borne by individuals) was valued at $49.9 billion.1

In 2008, the National Health Survey indicated that, excluding those for whom height or weightdata were not available, 68% of adult men and 55% of adult women were overweight or obese andtherefore at a high risk of having a cardiovascular event such as a heart attack or a sudden cardiacarrest.2 The Australian Health Survey for 2011-2012 noted that the prevalence of overweight andobese adults (males and females together) has continued to rise to 63.4% in 2011-2012 from 61.2% in2007-2008 and 56.3% in 1995.3 The 2008 Survey had showed a steady increase in obesity of about5% of the total population over the previous 15 years.4 It has been argued that a loss of 10 kilogramsover 10 months for every overweight or obese middle-aged Australian would have the potential tosave between A$472 to A$1,272 million in health expenditure due to cardiovascular hospitalisationsover a 20-year period.5

While Australia’s health challenges have been increasing, over two million people in Australia usefitness services,6 reflecting a 101% increase in the last 15 years.7 According to the 2010 AustralianBureau of Statistics Sport and Physical Recreation survey,8 amongst all adults aged 15+ years, 9.4% ofmales and 15.7% of all females participate in aerobics/fitness activities. This ranks aerobics/fitnessactivities as the second most common sport and physical recreation undertaken in Australia, exceededonly by walking.

Many Australians (including people who fall into higher risk groups with chronic healthconditions) join gyms to maintain or improve their health and fitness and to lose weight rather than foraesthetic purposes.9 The fitness industry has a critical role to play in supporting active and healthylifestyles in Australia’s efforts to combat these diseases.10 However, while regular physical activitycan help prevent obesity and reduce the risk of inactivity-related diseases, overly vigorous exercisecan trigger adverse health events, especially in habitually sedentary people.11 Additionally, someprograms offered by fitness providers can increase the risk of injury.12 Research in Queenslandhighlighted that the overwhelming majority of fitness facilities showed low compliance withemergency plans, pre-activity screening procedures and a lack of safety equipment,13 and yet thesesame facilities offer exercise and rehabilitative programs for special populations, such as people over

1 National Preventative Health Taskforce, Australia: The Healthiest Country by 2020 – Obesity in Australia: The Need for

Urgent Action, Technical Report No 1 (Australian Government, 2009) p 5.

2 Australian Bureau of Statistics, National Health Survey: Summary of Results, 2007-2008, Cat No 4364.0 (Reissue 2009) “KeyFindings”.

3 Australian Bureau of Statistics, Australian Health Survey: First Results, 2011-12, Cat No 4363.0.55.001 (2012) “KeyFindings”.

4 Australian Bureau of Statistics, n 2.

5 Stewart et al, Australia’s Future Fat Bomb: A Report on the Long-Term Consequences of Australia’s Expanding Waistline on

Cardiovascular Disease (Baker Heart Research Institute, 2008).

6 Access Economics, Let’s Get Physical: The Economic Contribution of Fitness Centres in Australia (2009).

7 Australian Sports Commission, Participation in Exercise, Recreation and Sport: Annual Report 2009 (Australian Government,Canberra, 2009).

8 Australian Bureau of Statistics, Sports and Physical Recreation: A Statistical Overview, Australia, Cat No 4156.0 (2010).

9 Finch C et al, “Who Chooses to Use Multi-purpose Recreation Facilities for their Physical Activity Setting?” (2009) 27(2)Sport Health 6.

10 Preventative Health Task Force, Australia: The Healthiest Country by 2020 (Australian Government, June 2009);Preventative Health Task Force, Taking Preventative Action – A Response to Australia: The Healthiest Country by 2020 – The

Report of the National Preventative Health Taskforce (Australian Government, May 2010).

11 Corrado D, Basso C, Schiavon M and Thiene G, “Does Sports Activity Enhance the Risk of Sudden Cardiac Death?” (2006)7(4) Journal of Cardiovascular Medicine 228.

12 Spengler J, Connaughton DP and Pittman AT, Risk Management in Sport and Recreation (Human Kinetics USA, 2006).

13 Sekendiz B and Quick S, “Is the Australian Health and Fitness Industry Going to be the Biggest Loser?” (Paper presented atthe 15th Annual Congress of the European College of Sports Science (ECSS), Antalya, Turkey, 23-26 June 2010).

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the age of 50 years, and people with cardiovascular diseases or chronic lower back pain.14 Inadequatesafety risk management practices have also been documented in Victorian facilities.15

Improved safety management practices will reduce adverse health outcomes and injuries, creatingdirect savings in health care costs to governments, in addition to the flow-on economic benefits fromincreased labour supply (encompassing both productivity and direct labour force impact).16

The Australian Fitness Industry Risk Management (AFIRM) Project was funded by an AustralianResearch Council Linkage Project Grant in conjunction with Fitness Australia and Sports MedicineAustralia. The overall project objectives have been to conduct: (a) focus group research to initiallyscope fitness industry concerns; (b) a national survey across Australia to determine the extent to whichthese concerns are considered important by fitness industry professionals; (c) observational audits of asample of fitness facilities across the country to describe current practices; and (d) in-depth interviewswith fitness professionals and stakeholders to generate new data about the fitness industry and the riskmanagement practices that are adopted in that industry. Our findings in relation to parts (c) and (d) ofthe AFIRM Project will be reported in detail elsewhere. Before turning to the results of our focusgroup research and that national survey data, we briefly survey the regulatory context of the Australianfitness industry.

THE REGULATORY CONTEXT

Fitness facilities are governed by a complex web of legislation (Commonwealth, State and Territory),common law, and State and Territory-based fitness industry codes (some of which are mandatory andhave the status of statutory instruments, and some of which are not). Generally speaking, a failure byfitness facilities to comply with reasonable and acceptable industry standards of service provision cangive rise to legal liability in the tort of negligence to compensate for personal injuries that have beencaused by the failure.17 Following changes to Australian law in 2002, recreational service providershave been given the right to contract out of their duty of care to their customers by using exclusionclauses that can waive or limit liability for negligence or breach of warranty that services would beprovided with reasonable care and skill.18 Membership applications and pre-screening tools used byfitness businesses now typically include exclusion clauses. Common use of such clauses has raisedconcerns that recreational service providers may refuse to invest in injury prevention practices and riskthe safety of their consumers.19 As Eickhoff-Shemek has observed, waivers:20

should never be relied upon as the sole risk management strategy. They do nothing to help preventinjuries and the subsequent claims and lawsuits that may follow … it is the ultimate responsibility ofco-ordinators, managers, and owners of health fitness facilities to ensure that their staff members areadhering to acceptable industry standards of service provision on a daily basis.

Despite legislative reforms, contractual exclusion clauses can be ineffective in limiting orexcluding legal liability for injuries caused to customers21 and an adverse event can still lead to legalfees associated with defending a claim.22 Contractual exclusion clauses may thus provide a false sense

14 Sekendiz and Quick, n 13.

15 Finch C, Donaldson A, Mahoney M and Otago L, “The Safety Policies and Practices of Community Multi-purpose RecreationFacilities” (2009) 47(10) Safety Science 1346.

16 Access Economics, n 6.

17 Dietrich J, Liability for Negligence in the Fitness Industry (Report of the AFIRM Project, Centre for Law, Governance andPublic Policy, Bond University, 2012)

18 Competition and Consumer Act 2010 (Cth), s 139A.

19 McDonald B, “Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and TortReform in Australia” (2005) 27(3) Sydney Law Review 443.

20 Eickhoff-Shemek JM, “The Legal Aspects: Legal Liability Associated with Instruction” (2005) 9(5) ACSM’s Health & Fitness

Journal 29 at 31 (emphasis added).

21 For example, Kovacevic v Holland Park Holdings Pty Ltd [2010] QDC 279; Belna Pty Ltd v Irwin [2009] NSWCA 46. SeeDietrich J, “Minors and the Exclusion of Liability for Negligence” (2007) 15(1) Torts Law Journal 87.

22 Keyzer P, “A Battle and a Gamble: The Spectre of an Adverse Costs Order” (2010) 22(3) Bond Law Review 82.

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of security to health and fitness facilities that rely on them, and ultimately provide limited securityagainst actions for negligence and breach of statutory duties of due care. Other recent changes to thelaw as a result of the nationally adopted Australian Consumer Law further complicate the legalregulation of exclusion of liability and may make it even more difficult to rely on contractualexclusion clauses to limit or exclude legal liability.23

In addition, injuries caused to employees resulting from a failure to ensure safety training canresult in liability claims in tort or contract. For example, in Gale v New South Wales, Gale wasemployed part-time to supervise a prison gymnasium.24 A weight machine became stuck, and Galeinjured herself attempting to free the weights. Gale sued her employer alleging that the machine wasnot well maintained, and that the defendant should have foreseen that if the machine broke down theappellant would attempt to fix it. The Court of Appeal agreed that the risk of such an accident of thegeneral type occurring was foreseeable, and affirmed the award of damages.

In Australia, fitness facility operators are responsible under occupational health and safety(OH&S) law to ensure that their employees are not exposed to risks to their health and safety.25

OH&S laws create mandatory obligations relating to workplace safety and failure to comply with therequirements can attract prosecution. While historically there has been a movement towards uniformOH&S laws in Australia, there are presently a number of such statutes, and considerable diversity inenforcement policies and strategies.26

Legal liability exposure is not limited to physical injury to customers and employees, but alsoextends to psychosocial hazards.27 Legal liability exposures can also emerge via State, Territory andfederal laws that, for example, prohibit sexual harassment, bullying, disability discrimination, anddiscrimination on the ground of sexuality. In addition, there are an increasing number of internationalconventions that are relevant to health and health promotion that need to be considered. People enjoyrights under these conventions that create important obligations that should inform industrypractices.28

Although many fitness industry services understand that there are important laws and regulationsthat affect them, many may be unaware of the risks. In addition, many may not seek legal or otheradvice to assist them in managing these risks, and may not know where to obtain relevant safety riskmanagement resources. A Victorian study showed that multipurpose recreational facilities lackedsafety policies and practices for gymnasium and group exercise activities.29 It was demonstrated thatcurrent OH&S requirements provided little practical guidance for service providers, and there was aneed for comprehensive, relevant and accessible industry specific safety benchmarks and standards topromote injury prevention.30

Australia’s growing health challenges and the complexity of the legal environment highlight theneed for better resources to equip fitness professionals with the tools they need to ensure theyunderstand the effect that regulations have on their work. Such an understanding will help reduce therisk of adverse health outcomes and injury and the legal liability associated with those risks. There has

23 Dietrich J, “Liability for Personal Injuries from Recreational Services and the new Australian Consumer Law: Uniformity andSimplification, or Still a Mess?” (2011) 19 Torts Law Journal 55; Dietrich J, “Service Guarantees and Consequential LossUnder the ACL: The Illusion of Uniformity” (2012) 20 Competition and Consumer Law Journal 43.

24 Gale v New South Wales [2005] NSWCA 143.

25 Butler J, Liability for Workplace Health and Safety in the Australian Fitness Industry (Report of the AFIRM Project, Centrefor Law, Governance and Public Policy, Bond Unviersity, 2013).

26 Johnstone R, “Harmonising Occupational Health and Safety Regulation in Australia: The First Report of the National OHSReview” (2008) 1 Journal of Applied Law and Policy 35.

27 Rick J, Briner R, Daniels K, Perryman S and Guppy A, A Critical Review of Psychosocial Hazard Measures (The Institute forEmployment Studies, HSE Books, 2001).

28 Yakovee V and Kaburakis A, “International Risk Management Considerations for the Global Sports Lawyer” (Paperpresented at the 36th Annual Sports Lawyers Association Conference, Phoenix, Arizona, 2010).

29 Finch et al, n 15.

30 RiskLogic and Fitness Australia, Safety First, An Occupational Health and Safety Guide for Fitness Businesses (2010).


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been a long history of the benefits of using regulatory approaches towards managing injury risks, andhence to support safety risk management strategies, particularly in the context of road safety andworkplace safety. It is somewhat surprising, therefore, that there have been few studies exploring therole of rules and regulations for delivery of safe fitness services.31

In 1994, injury prevention was designated as one of the first four National Priority Health Areas.32

In 1997, the National Sports Safety Framework (NSSF) strongly advocated that an injury riskmanagement approach be adopted to reduce the risk of adverse health outcomes associated with sportand other physical activities, including in health and fitness facilities.33 Since this time, industry codesof practice have emerged and industry stakeholders have produced accreditation frameworks. But thecomplexity and diversity of legal liability exposures remains significant. Moreover, injuries continueto occur to people who use fitness facilities and services, suggesting that current preventive efforts aresub-optimal.

The NSSF specifically recommended that physical fitness facilities and sporting clubs adoptformal injury risk management audit processes.34 Since then, a valid sports safety audit tool has beendeveloped for Australian sports clubs,35 and used to assess the range and extent of safety policies andpractices in that setting.36 To date, there has been only one related set of Australian studies which hasassessed the safety risk management practices of health and fitness facilities and indicated some areaswhere improvement could be made.37 This study also described the sorts of people who undertaketheir physical activity in these facilities, their physical activity-related injury attitudes in general, andtheir views on safety in those facilities.38 Recent research in Queensland points to significant problemswith safety-related risk management practices in health and fitness facilities,39 and the legal liabilityissues that arise within this context. In support of the need to develop comprehensive, relevant andaccessible safety and risk management standards for the Australian health and fitness industry,industry leaders have acknowledged the need to develop research alliances to minimise the risk ofadverse health outcomes and associated legal liability.40 The combination of legal research approacheswith those of social science researchers in this field has been identified as a significant researchneed.41

In this context, we now set out the results of recent focus group research conducted across fourAustralian States to identify risk management themes in the fitness industry from the perspective offitness professionals. These findings were then used to underpin the design of the largest ever nationalsurvey of fitness industry professionals in Australia. In the second section of this article we set out andanalyse the key findings of the national survey.

31 Matheson G, Mohtadi N, Safran M and Meeuwisse W, “Sport Injury Prevention: Time for an Intervention?” (2010) 20Clinical Journal of Sports Medicine 399.

32 Commonwealth Department of Human Services and Health, “Better Health Outcomes for Australians” in Prior M (ed),National Goals, Targets and Strategies for Better Health Outcomes into the Next Century (Australian Government PublishingService, Canberra, 1994).

33 Finch C and McGrath A, SportSafe Australia: A National Sports Safety Framework, Report prepared for the Australian SportsInjury Prevention Taskforce (Australian Sports Commission, Canberra, 1997).

34 Finch and McGrath, n 33.

35 Donaldson A, Hill T, Finch C and Forero R, “The Development of a Tool to Audit the Safety Policies and Practices ofCommunity Sports Clubs” (2003) 6(2) Journal of Science and Medicine in Sport 226.

36 Donaldson A, Forero R, Finch C and Hill T, “A Comparison of the Sports Safety Policies and Practices of Community SportsClubs During Training and Competition in Northern Sydney, Australia” (2004) 38 British Journal of Sports Medicine 60.

37 Finch C, Donaldson A, Otago L and Mahoney M, “What Do Users of Multi-purpose Recreation Facilities Think About Safetyat those Facilties?” (2009) 27(3) Sport Health 31.

38 Finch et al, n 37.

39 Sekendiz and Quick, n 13.

40 Sekendiz B and Keyzer P, “The Case for Effective Risk Management in the Fitness Industry”, REPS Magazine (7 September2010) pp 22-23. REPS Magazine is published by Fitness Australia.

41 Tremper C, Thomas S and Waagenaar A, “Measuring Law for Evaluation Research” (2010) 34(3) Evaluation Review 242.


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INITIAL SCOPING OF FITNESS INDUSTRY CONCERNS

We conducted focus group research first, as a precursor to the national survey, because we wanted toensure that our questionnaire would have content and construct validity. Fifty-eight fitnessprofessionals were sampled from seven urban and regional locations in four Australian States.42 Thesessions were held within a two-month timeframe and conducted by the same moderators. Manyparticipants were members of Fitness Australia (a not-for-profit, member-based industry associationrepresenting the interests of over 26,000 registered exercise professionals, fitness service providersand industry suppliers Australia-wide), others were sourced from the Yellow Pages or the YMCA.Participants were randomly selected and included fitness facility owner/operators, employees(full-time, part-time or casual) and contractors.

We used nominal group technique (NGT) in our focus groups. In an NGT session,43 participantsprovide responses to a particular issue or question, list them in their order of importance, pool theirresponses, and then conduct a secret ballot to list and rank the most important issues drawn from thepool.44 NGT is valuable because it increases the number of solutions generated by a group,45 andenables all participants’ individual responses to be recorded, as well as the consensus of the group asto the most important issues raised. Thus, it provides an empirical basis from which individual itemsin a follow-up questionnaire can be derived that is not compromised by any preconceptions.46 Indeed,that is precisely why we employed the technique.

Participants in each of the NGT sessions were initially asked to identify the six most importantissues/problems in respect to accident risks that they had experienced or were aware of in the fitnessindustry. Participants were told to not discuss their answers with anyone else, and were given about10 minutes to complete the task. The anonymous responses from all participants, which were writtenon answer forms provided, were collected and passed to a trained moderator who then compiled a listof all of the issues identified by the participants. These were written up on a whiteboard for allparticipants to view. The moderator then summarised the individual responses across participants sothat substantially similar responses were written on the whiteboard. For example, if some participantsidentified “using free weights incorrectly” and others identified “poor technique in using freeweights”, then the moderator would write this as the perceived problem of “using free weightsincorrectly/poor technique in using free weights”.

The participants were then asked to identify and “vote” for the six most important issues out of allthose identified by all participants of the group. A score of six was assigned to the most importantissue identified by each participant in each site, a score of five for the second most important, and soon, down to one for the least important out of those six. The scores assigned by participants were thensummed for each of the sites so that a rank order could be assigned to each problem identified by thegroup and so “voted” upon in a final consensus ranking. Table 1 shows the calculations for each siteand across the sites.

In essence, the NGT technique produces a rank ordering of the various problems identified byindividual group members that is anonymous and thus unaffected by the personality attributes/allegiances of those in the group. Although the purpose of the NGT sessions was to obtain data toinform the development of a detailed questionnaire for the national survey, the results of the NGTfocus group sessions are worthy of consideration in their own right since they provide a nuancedexplanation of the rationale for the groups and individuals in each group in reaching conclusions thatcannot be deduced from other methods of data analysis.

42 Seven sessions were held in total: two in Sydney; two in Adelaide; and one each at the Gold Coast, Ballarat and Rockhampton.

43 Delbecq AL and VandeVen AH, Group Techniques for Program Planning: A Guide to Nominal Group and Delphi Processes

(Scott Foresman and Co, Glenview, Illinois, 1975). See also Keyzer P, Johnston J, Pearson M, Rodrick S and Wallace A, “TheCourts and Social Media: What do Judges and Court Workers Think?” (2013) 25(6) Judicial Offıcers’ Bulletin 47.

44 Delbecq AL, VandeVen AH and Gustafson DH, “A Group Process Model for Problem Identification and Program Planning”(1971) 7 Journal of Applied Behavioral Science 466.

45 Delbecq et al, n 44.

46 Coyle IR, Sleeman SD and Adams N, “Safety Climate” (1995) 26(4) Journal of Safety Research 247.


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In the material that follows the actual language used by the participants in the NGT sessions isused. The summaries below reflect the themes captured in the recordings and are consistent with ournotes of the discussions that took place in relation to the issues identified.

RESULTS OF NGT SESSIONS

Participants’ identification of the top six health and safety problems in fitnessindustry

The six overall top health and safety problems in the Australian fitness industry, identified by theparticipants, is summarised in Table 1. A score of six denotes the most important issues identified byparticipants, a score of five for the second most important and so on, down to one for the sixth mostimportant issue. The sessions were done in different urban and regional locations, and we notedconsiderable consistency across sites.

TABLE 1 Calculations of NGT votes

Top sixhealth and

safetyproblems inthe fitnessindustry

Education,competency,knowledge

and courses

Pre-exercisescreening

Poorsupervision

andtechnique

Scope ofpractice

Equipment Environment

Individualgroup

rankings

6, 6, 5, 6, 6,5, 6, 6, 6, 5

4, 4, 5, 4, 5,4, 3

2, 3, 4, 3, 2,5, 4

5, 3, 3, 3 1, 1, 4, 2, 1,1, 3

2, 2, 1, 1, 2,2, 1

Total score 57 29 23 14 13 11

Final rank 6 5 4 3 2 1

It is notable that “education, competency, knowledge and courses” was by far the most importantfor everyone. The next two issues, “pre-exercise screening” and “poor technique and supervision”were also fairly consistently selected as the second and third most important issue.

Under the headings below we have set out the key themes that were raised in the NGT sessions.

Education, competency, knowledge and courses

Participants expressed concern that some fitness professionals are “under-educated”, and expresseddissatisfaction with fitness trainer courses, which were seen to be too short and/or too easy. Concernwas expressed that there is minimal or inadequate training in risk management in current educationalofferings. Participants said that fitness professionals often lack experience, that there was a lack ofsupport for new trainers, and that there was also a need for further, post-qualification professionaltraining and development to ensure that people have the necessary skills to be effective and managerisks.

Pre-exercise screening and management of de-conditioned clients

Participants expressed concern about the adequacy of pre-exercise screening in the fitness industry,particularly in relation to unconditioned or de-conditioned clients. Participants expressed a lack ofconfidence that pre-existing injuries or conditions were being captured. Some participants complainedthat there was no uniform pre-exercise screening tool (despite the fact there is one in Australia) andthat the tools that do exist are not easy to implement.

Poor supervision and incorrect use of equipment

Participants expressed concern about what they regarded as the generally low degree of supervision ofclients undertaking exercise in fitness facilities. Concern was also expressed that some facilities maybe inadequately staffed (especially in the new industry phenomenon of 24 hours/7 days a weekfacilities) and that trainer fatigue might create risks in fitness facilities. Participants also identified


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“improper use of equipment” by clients as a significant issue. Participants commented that risks infitness facilities can arise from client performance of incorrect techniques or failure to followinstructions, and also poorly-educated fitness trainers teaching incorrect techniques.

Scope of practice, nutrition and managing client expectations

Participants expressed concern that personal trainers and fitness facility employees often operateoutside their scope of practice and expertise, for example, providing advice about diet or speakingwith clients about personal problems. Concern was expressed that fitness professionals might giveinappropriate or misleading information in this context. Concern was also expressed that some fitnessprofessionals may not manage the (often unrealistic) expectations of their clients properly, creating arisk of injury and adverse health outcomes.

Equipment

Participants identified a number of issues in their discussion of the topic of “equipment”: expressingconcern about the lack of maintenance of equipment, faulty equipment or the poor quality ofequipment, equipment hygiene (machines not being wiped down or cleaned), and problems related tothe positioning of equipment too close to other equipment or hazards.

Environment

Lack of space in gyms and hazards created by clients (for example, leaving bags or weights lyingaround, creating tripping hazards) were seen as risk issues by participants. Participants expressedconcern about poor layout of fitness equipment in fitness facilities, specifically identifying space,overcrowding and ventilation issues. Concerns were expressed about the risks posed by using outdoorareas as venues for the provision of fitness services, for example, the provision of services on wet oruneven ground, and/or in weather that was too cold, too hot or too wet.

These issues (combined) were taken as the starting point for development of a national survey todetermine how widespread these concerns are across the whole fitness industry in Australia. Thedesign, conduct and results from that survey are described in the following section.

THE NATIONAL SURVEY

Survey methodology

Following a well-adopted method47 the information obtained both as a group and individually in theNGT sessions was used to develop 45 specific items for a questionnaire that was disseminatedthroughout the fitness industry. The survey began with several questions to ascertain the demographicand industry profile of the survey responders. The order of presentation of the remaining 45questionnaire items was randomised to help reduce responder bias. To prevent response set bias, theverbal anchors of the Likert scales were randomly presented in increasing or decreasing numericalorder. Verbal anchors were paired with each number in the six-point Likert scale employed. Asix-point Likert scale was used to avoid the problem of participants regarding the midpoint of the fiveand seven-point scales typically utilised as equating to a neutral position when, arithmetically, thesescores are above the mean. The questionnaire items are set out in the table below.

Survey administration

All surveys were completed anonymously through the Survey Monkey program. The survey wasavailable online from 5 May to 21 June 2013, inclusive. It was promoted widely through acommunication strategy including social media, direct e-marketing and, to a lesser extent, traditionalmedia. Quarterly communications to the professional networks of the research team and the twoindustry partners was also undertaken.

The survey began with an explanatory statement and informed consent page, and completion ofthe online survey was taken as indication of consent from respondents to be part of the survey data.All of the research activities detailed in this article were approved by the relevant ethics committees.

47 Coyle et al, n 46.


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Data analysis

All survey data were downloaded directly to SPSS from Survey Monkey. Prior to data analysis,individual item scores were transformed from the random presentation of the verbal anchors employedin the questionnaire so that a score of one always equated to the worst outcome and a score of sixalways equated with the best outcome. Extensive data cleaning, and recoding of some of thedemographic industry profile variables was undertaken prior to analysis to better reflect thedistribution of responses.

The demographic and industry representativeness of the survey respondents was ascertained byfrequency distributions according to each category of the profile variables, irrespective of whether ornot the rest of the survey was completed.

The 45 Likert scale items were analysed using Kaiser-Meyer-Olkin (KMO) Maximum LikelihoodFactor Analysis with Varimax Rotation, employing Kaiser normalisation, using the SPSS. Prior to finalrotation, individual items loading less than 0.3 on any factor were discarded. Only surveys withcomplete data on all of the 45 Likert scale items were able to be used in this part of the analysis.

Results

Overall, a total of 1,178 respondents completed the survey, but not everyone completed everyquestion. Table 2 shows the item responses, mean and standard deviation scores for each question.


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Table 3 shows the demographic profiles of these respondents. The data is given as the percentageof all respondents who answered each specific question. For each survey item, the different samplesizes adjust for missing values.

TABLE 3 Demographic and personal profiles of the survey respondents

Age (n=1153) Mean Median Std Dev Min Max Range

39.94 40.00 11.542 18 72 54

Gender (n=1168) % Male % Female

37.3 62.7

Education(n=1175)

% High School % CertificateI-IV

% GradCert/Diploma/Assoc Degree

% Bachelor’sDegree

% PostgraduateDegree

8.2 31.8 22.6 25.0 12.4


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TABLE 3 continued

Position(n=1150)

% Self-employedor a sole

trader

% Full-timeemployee

of a fitnessfacility

% Part-timeemployee

of a fitnessfacility

% Part-timeemployee

of anumber ofdifferentfacilities

% Ownerof a fitness

facility

% Managerof staff in a

fitnessfacility

% Other

47.0 4.9 19.0 13.3 6.0 6.1 3.8

Hours worked inthe industry

(n=1150)

% <11hours/week

% 11-15hours/week

% 16-20hours/week

% 20-35hours/week

% >35hours/week

34.9 15.9 12.6 16.7 19.9

Registration (n=1147) % Yes % No

95.2 4.8

Time in fitness industry (n=1066) % <1 year % 2-4 years % 5-10 years % >11 years

26.6 22.7 25.0 25.6

The respondents came from different parts of the fitness industry across Australia and the industryprofiles of these respondents are summarised in Table 4. Some respondents gave multiple responses tosome questions (for example, when they may have worked in more than one facility) and so thesefigures represent the percentage of all responses, not respondents. For each survey item, the differentsample sizes adjust for missing values.

By way of explanation, in Table 4 “Specific conditioning” refers to activities such as pilates, yoga,circuit training, cross fit and rehabilitation. “Specific equipment” refers to activities requiringspecialised equipment such as boxing, spin, rowing, kettle bells and fit ball. “Specific environment”refers to activities such as hiking, aqua/swimming classes, altitude training, outdoor fitness classes andsquash. “Specific population” refers to activities for specific groups such as children, olderadults/seniors or activities such as heart moves.

TABLE 4 Demographic and personal profiles of the survey respondents

Fit-nessser-

vicespro-

vided

%Weighttrain-ing

%Tread-mills

%Exer-cise

bikes,step-pers

%Swissballs

%Aero-bics,

Zumba

%Bootcamp/mili-tary-styletrain-ing

%Spe-cific

condi-tion-ing

%Spe-cific

equip-ment

%Spe-cificenvi-ron-ment

%Spe-cific

popu-lation

No ofresp-onses

89.5 67.6 72.0 80.3 51.1 59.7 15.2 6.1 5.9 1.2 1089

State % Vic % NSW %Qld %ACT % SA % WA % NT % Tas No ofresponses

24.7 32.5 20.5 1.3 7.4 9.7 1.1 2.8 1060

Area % Metropolitan % Regional % National No of responses

88.5 6.4 5.1 78


(2014) 21 JLM 826 839





TABLE 4 continued

Size offacility

% <500square metres

% 500-999square metres



% >6000square metres

No ofresponses

41.8 19.4 19.1 10.1 9.5 1071

Number ofcustomers

in total

% Don’tknow

% 1-10 % 11-50 % 51-200 %201-1000

% >1000 No ofresponses

34.0 10.6 17.8 9.6 13.0 15.0 1042

Number ofcustomers per

day

% Don’tknow

% 1-10 % 11-50 % 51-200 % >201 No ofresponses

48.8 16.9 15.4 10.5 8.5 1021

The KMO Measure of Sampling Adequacy was 0.986 and Bartlett’s test for Sphericity wassignificant (p <0.001). These results strongly support the validity of the factor analysis. Table 5 setsout the rotated factor matrix. Three independent factors, accounting for 75.54% of the total variancewere identified and the overall variance accounted for by each factor was: Factor 1 = 67.65%, Factor2 = 5.13%, Factor 3 = 2.77%. Acknowledging the difficulty in describing mathematical constructsverbally, the factors identified can be fairly described as follows:• Factor 1: Management/monitoring of safety policy, education and training;• Factor 2: Implementation of client training/education in exercise programs; and• Factor 3: Maintenance, design and operation of facility/equipment.

TABLE 5 Item loadings against the three identified factors

Survey question (all 6-point Likert scales)

Factor loadings

Factor 1

Management/

monitoring of

safety policy,

education and

training

Factor 2

Implementa-

tion of client

training/

education in

exercise

programs

Factor 3

Maintenance,

design and

operation of

facility/

equipment

Overall, how safe are the premises (including access, lighting,toilets, locker rooms, floor surfaces etc) where your facility islocated?

.811 .345 .338

How easy is it to dedicate the right amount of supervision/care tocustomers in your facility?

.807 .385

How would you rate your knowledge of the legal requirements inthe fitness industry, such as having customers sign a legal waiverform before undertaking exercise?

.801 .354

How important is ongoing training/professional development inthe fitness industry?

.797 .390

To what extent do you think that management of your facilityregard safety management as important?

.794 .405

If you raised a serious health/safety issue with management ofyour facility how likely is it that prompt, corrective action wouldbe taken?

.794 .353


(2014) 21 JLM 826840





TABLE 5 continued


Factor loadings

Factor 1Management/monitoring ofsafety policy,

education andtraining

Factor 2Implementa-tion of client

training/education in

exerciseprograms

Factor 3Maintenance,

design andoperation of

facility/equipment

How well designed/ergonomic is the layout of equipment in yourfacility?

.790 .310 .362

How safe is the programming of customers exercise programs bypersonal trainers in your facility?

.789 .339 .382

How frequent are inspections of equipment in your facility? .789 .404

How aware are you of the emergency evacuation plans and otheremergency procedures in your facility?

.787 .319

How would you rate the education you have received as apersonal trainer?

.778 .366 .304

How frequently do you correct problems with customers usingpoor techniques?

.762 .418

How confident are you about your ability to give advice tocustomers about nutrition?

.762 .399 .307

How frequently do you correct customers using poor technique? .754 .414

To what extent do you think that promotion/advertising of yourfacility is related to managing the safety of customers?

.745 .322

How would you rate the emergency evacuation plans and otheremergency procedures in your facility?

.723 .363 .438

To what extent do you think that promotion to a more seniorposition in your facility is related to managing the safety ofcustomers?

.717 .346

How would you rate the training you have received? .717 .449 .394

How would you rate the record-keeping of customers’ personalinformation and pre-exercise screening in your facility?

.709 .321 .475

How easy is it to gain basic qualifications as a personal trainer? .678 .312

How competent do you feel to give advice about nutrition tocustomers?

.674 .480 .382

How good is your knowledge of the Fitness Industry Code ofPractice?

.666 .478 .403

How frequently are you asked to provide advice about nutritionto customers?

.665 .427 .359

How good is the pre-exercise medical screening of customers? .585 .349 .581

How frequently does the pressure/pace of work prevent you fromdealing with safety problems that you observe?

.575 .574

How frequently is out-of-date/poorly designed equipmentreplaced in your facility?

.575 .316 .478


(2014) 21 JLM 826 841





TABLE 5 continued


Factor loadings

Factor 1Management/monitoring ofsafety policy,

education andtraining

Factor 2Implementa-tion of client

training/education in

exerciseprograms

Factor 3Maintenance,

design andoperation of

facility/equipment

How frequently do you use the adult pre-exercise screeningsystem (APSS)?

.542 .351 .346

How aware are you of the adult pre-exercise screening system(APSS)?

.527 .443 .436

How frequently do you observe customers using weights that aretoo heavy?

.324 .788

How frequently do you observe equipment misuse in yourfacility?

.778 .336

How frequently do you observe customers using poor technique? .379 .760 .302

How frequently do you observe poorly maintained equipment inyour facility?

.411 .748

How frequently do you observe faulty equipment in your facility? .384 .727

How frequently do you observe customers leaving gymequipment and personal items lying around in your facility?

.725

How frequently do you observe personal trainers operatingoutside the limits of their competency?

.457 .620

How frequently do you observe overcrowding in your facility? .615 .339

How frequently do you observe problems with special groups ofcustomers such as those with disabilities?

.380 .607

How frequently do you observe problems associated withde-conditioned/aged customers?

.304 .601 .404

How frequently do customers have unrealistic expectations as towhat they can achieve through attending the facility due tomisleading information from various sources?

.317 .554 .394

How important is lack of ventilation/heat in your facility .357 .498 .419

How would you rate the maintenance of equipment in yourfacility?

.465 .346 .757

Generally, how would you rate the design of the equipment usedin your facility?

.452 .401 .721

How frequently is the competency of personal trainers assessedin your facility?

.413 .611

How frequently is pre-exercise screening of customers undertakenin your facility?

.443 .399 .603

How certain are you that all pre-existing injuries/medicalconditions of customers have been notified to management andpersonal trainers?

.571 .592


(2014) 21 JLM 826842





Analysis

The identification in the NGT sessions of education, knowledge, competency and courses as the mostimportant concern to the fitness industry representatives by far, vis-à-vis accident risks, is worthy ofnote. What could more centrally call into question the adequacy of risk management practices in thefitness industry than the concern of its practitioners that training is presently inadequate? This problemwas also strongly reflected in those items dealing with education/training that loaded highly onFactor 1 in the national survey, reflecting the fitness industry more widely Australia-wide. As far as thesecond-ranked problem identified in the NGT sessions is concerned, pre-exercise screening, thisproblem was also reflected in the loading of those items dealing with pre-exercise screening onFactor 1. However, the problem associated with unconditioned and de-conditioned clients, a problemassociated with pre-exercise screening, did not load heavily on Factor 1: those items (Q a-b) linked tothis problem loaded much more heavily on Factor 2.

The problems of poor supervision and scope of practice identified in the NGT sessions werelargely, though not exclusively, reflected in those questionnaire items loading heavily on Factor 2(Q c-d) in the national survey.

The last two problems identified in the NGT sessions, equipment and environment, were mostlyreflected in the national survey’s Factor 3. That being said, since Factor 3 only accounted for a verysmall percentage of the overall variance explained by the three factors, it is not surprising that thoseitems dealing with equipment and environment (Q d-e) also somewhat loaded on Factors 1 and 2.

Considering the superordinate primacy of Factor 1 in terms of variance accounted for, it isobvious that efforts to resolve the problems identified by this survey should focus on management,monitoring of safety policy and training/education of fitness instructors. Considering that much effortin safety management is often directed at improving the physical environment as a first step, ratherthan seeking to improve safety via administrative means, this may seem at odds with commonlyaccepted wisdom. However, this apparent conflict is just that: an apparent conflict with acceptedwisdom. For a start, the physical environment of fitness facilities and “the goods produced” are muchmore homogeneous than what is found in most industries. A moments’ consideration leads to theconclusion that the physical environment of fitness facilities cannot be improved without managementinvolvement from the start.48 The best safety policy is useless unless it is properly implemented andthis requires management involvement.49 By way of amplification, free weights and treadmills arevirtually identical between fitness facilities, albeit that the correct use of them is another matter. Theeducation that fitness instructors receive is beyond the scope of individual managers of fitnessfacilities to influence. This requires an industry-wide reappraisal of extant courses, particularly onlinecourses, which were the subject of trenchant criticism by participants in the NGT sessions. It isrecommended that the peak fitness industry bodies address this as a priority.

As far as the physical environment of individual facilities, including maintenance, is concernedjust because this factor accounted for a relatively small amount of the total variance it does not followthat this is unimportant. Studies in Australia have shown that falls on the same level account for some14% of male occupational injuries and 20% of female occupational injuries.50 Swedish studies haveshown that 11% of all occupational injuries involved slipping.51 In assessing causation in relation toslipping/tripping incidents the prior history of slipping accidents is only partially relevant. To rely ona history of slipping/tripping incidents as being indicative that a surface is safe or unsafe isscientifically unsound. There are a number of reasons for this that may be iterated as follows. The

48 Finch C, “A New Framework for Research Leading to Sports Injury Prevention”, (2006) 9(1) Journal of Science and

Medicine in Sport 3; Finch C, “No Longer Lost in Translation – The Art and Science of Sports Injury PreventionImplementation Research” (2011) 45 British Journal of Sports Medicine 1253.

49 Geller E, The Psychology of Safety: How to Improve Behaviours and Attitudes on the Job (CRC Press, Boca Raton, Florida,1998); McClure R et al, The Scientific Basis of Injury Prevention and Control (IP Communications, Melbourne, 2004).

50 Joint Australia/New Zealand Standards Committee, Slip Resistance of Pedestrian Surfaces - Part 2: Guide to the Reduction of

Slip Hazards, AS/NZS3661.2:1994 (Standards Australia/Standards New Zealand, 1994) p 3.

51 Joint Australia/New Zealand Standards Committee, n 50, p 3.


(2014) 21 JLM 826 843





probability even on a slippery, uneven or otherwise dangerous surface of an individual slipping andsuffering injury is low. It is difficult to conceive of anyone not having slipped and/or tripped over atone time or another. Yet most of us do not suffer injury sufficient to warrant hospitalisation.Considering that slips, trips and falls account for some 17% of all injuries requiring hospitalisation,this is an egregious point.

It also needs to be recognised that there are many situations where individuals begin to slip and/ortrip and then recover their balance through a variety of mechanisms. There are, doubtless, many casesof individuals slipping and/or tripping, suffering injury to one degree or another and not bothering tocomplain to the owners or occupiers of premises, let alone lodge a claim and/or commence litigation.As far as near misses are concerned the situation is even more pronounced. There is an overwhelmingbody of literature that proves beyond any doubt that for every injury requiring hospitalisation there area number of near misses that are orders of magnitude higher. For arguments sake, having regard tofatalities, some evidence indicates that there are thousands of near misses for each fatality. This maybe conceptualised and is often referred to in the literature as the iceberg theory: most of the icebergcannot be seen. More precisely, it is referred to as Heinrich’s Law.52

To put it another way, just because the risk of injury occurring is low to the point of being highlyimprobable it does not follow that it can be regarded as being unforeseeable. The law has longrecognised this. The oft-quoted phrase of Mason J in Wyong Shire Council v Shirt that “[a] risk whichis not far-fetched or fanciful is real and therefore foreseeable” is of some note in this regard.53 Theprobability of an accident occurring and its foreseeability are two very different things.

What are the practical implications and limitations of this study? First since the overwhelmingproportion of variance was accounted for by Factor 1, it is obvious that attempts should be made toaddress the issues encompassed in this factor first purely from a cost-benefit perspective. Yet this doesnot mean that the elements included in the other main factors, or the nominal group technique sessionsfor that matter, can be ignored.

There is an important caveat here. The results of this study deal with participants’ perceptions ofwhat is important from an OH&S perspective in the fitness industry. To the extent these perceptionsare not founded in fact then erroneous conclusions must follow. It might seem that this would requirestatistical improbability on a vast scale considering the breadth and depth of this study. But there aresituations in which the perceptions of employees in various industries as to what constitute the mostimportant OH&S problems they confront in the performance of their work are demonstrably far fromobjective fact.

An obvious way of dealing with the potential limitation of this study is to conduct physical auditsof facilities by suitably trained assessors. This follow-up study is underway in a sample of facilitiesthat participated in this study. Preliminary results have not revealed significant discrepancies betweenperceptions of employees and independent expert assessment. That being said, to the authors’knowledge, no-one has employed the methodology used in this study in the fitness industry. Still, theresults in general, and the final rotated factor matrix in particular, should be regarded as exploratory,even allowing for the significant sample size and robust results obtained.

52 Heinrich HW, Industrial Accident Prevention (McGraw Hill, New York, 1931).

53 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48.


(2014) 21 JLM 826844





Documents

Legal risk management and injury in the fitness …...Legal risk management and injury in the fitness industry: The outcomes of focus group research and a national survey of fitness