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risk management
34 | Touchline issue 22 | November 2015
What can gyms and trainers do to protect themselves and avoid
defending expensive liability claims? There is no guaranteed
safeguard or complete list but here are some suggestions to
minimise claims:
1. The number one golden rule is keep records. All too often
trainers have done the right thing but don't have the documentation
to prove it. When injury happens claimants can forget or bend the
truth and a handy file note or check sheet can save a long legal
battle and arguments on whose oral testimony will be preferred and
what really happened.
2. Disclaimers. CrossFit can qualify as a dangerous recreational
activity permitting the exclusion of liability as a result of its
obvious risks. A well worded disclaimer can serve two purposes of
potentially excluding or limiting liability and also acting as a warning
to customers. It must be signed, with at least general or implied
knowledge of the contents, preferably before membership is paid
for and copies retained in a safe place indefinitely. You may need it
as late as 3 years after the injury, even longer in some cases.
3. Ask members before signing up "do you have any pre-existing
injuries?" Document the injuries and keep it on file. For serious
injuries such as disc bulges, sciatica and joint instability, the best
practice is to recommend medical clearance from a doctor. This is
not always practical but it can save you in the long run.
4. If someone is returning from an injury, make sure they ease
into it, building their weights slowly. Don't let them lift the heaviest
weight and hit the box jumps straight up. Keep some kind of record
of workouts, be it by text, email, photograph or computer file.
5. Explain the risks associated with weight training and CrossFit.
Give out a form and put it somewhere accessible on your website.
6. Make sure members understand how to progress with weights.
In increments. Do not pressure people to lift weights that are way
outside their capability.
7.Explain, if something does not feel right, do not do it. Talk to
the members. Help them to understand and listen to their bodies.
Watch them closely. Correct their form.
8. Technique is key. Discourage sign up at a CrossFit gym without
first having participated in three technique weight training sessions
to learn the basics of crossfit. Sounds pedantic? Three technique
classes enables a new member to understand the "dos and don'ts"
of weight lifting. It clearly demonstrates a careful and cautious
approach to training.
9. Overuse injuries are the most common form of injury associated
with crossfit. Why? The majority of people don't weight train 5 days
a week. When they start at CrossFit, they get sucked (happily) into
the CrossFit cult. From there, they find themselves pumping weights
every session. Pushing themselves harder than they have done
before. Chins ups, push ups, deep squats, overhead thrusters. As
the circuits continue, the fatigue sets in. Once a person is fatigued,
they risk losing form. This is when injuries happen. Trainers must
keep an eye out for this. Don't be distracted in the gym.
Negligence claims from CrossFit will be inevitable. It is a high
intensity sport requiring skill and condition to perform at the
highest levels. The sad reality is, the world is a litigious place. All
sport carries a risk of injury and CrossFit is no exception. It is easy
to lay the blame for an injury onto a trainer or gym with hindsight.
However, adopting some simple risk management techniques like
those above will greatly reduce both the chance of injury or if injury
occurs, any claim arising from it. If after all that you are still unlucky
enough to face a claim then your insurer and their lawyers will have
some good ammunition to defend you with.
CrossFit is a great discipline delivering immeasurable benefits in
terms of health and physical and mental wellbeing to hundreds of
thousands of athletes. With appropriate care we can all do our bit to
keep it safe, rewarding and successful for years to come.
Article by Jane Bowes
Jane Bowes, Lawyer DLA Piper
Jane specialises in sports insurance litigation at DLA Piper, Brisbane
Australia. Starting her career in plaintiff personal injury, Jane has
studied her opponent’s game plan well, before switching sides to
pursue her true calling, defending those who foster and grow sport
in the wider community. Jane’s love of sport started early. With her
father, an Australian coach, and surrounded by a family of athletes,
Jane trained in all facets of dance, performing at a professional level
before pursuing a career in law. She combines strong litigation skills,
a wealth of sports knowledge and industry contacts with a genuine
passion to protect sporting organisations from excessive negligence
claims and their ever increasing regulatory and compliance challenges.