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Sports Law Update: Moskowitz v Detox Club 2022 ONSC 4063

Articles, News | Thu 10th Nov, 2022

Introduction

Allegations of negligence against sports instructors often contend that there has a been a failure to warn of specific risks. This can be a powerful argument, particularly where it is agreed that there was no such warning. In Moskowitz v Detox Club 2022 ONSC 4063, the Superior Court of Justice in Ontario grappled with the implications of a failure to warn in the context of a fitness class. This judgment is useful reading for English practitioners, as it provides a persuasive guide as to the necessary analysis that a court will undertake in this regard.

Factual Background

The Claimant exercised at the Detox Club, a fitness club in Toronto, in a class led by a fitness instructor, Ms. Venessa Coda (“the instructor”). The incident occurred while the Claimant was participating in a “Total Body Toning” class. This consisted of cardio, weight training, resistance training and body weight exercises. There were some exercises which required the use of a ball.

One of the routines performed was “ball slam exercise”. The exercise involved picking up the ball, raising it above the head, and slamming it on the floor. The Claimant slammed the ball to the ground and squatted to pick it off the ground. The ball then bounced and hit her in the chin. She brought a claim against the instructor for failing to take adequate care to properly train and instruct participants in a fitness class.

The Defendant’s case was that instructions were properly given, her actions met the standard of care of a personal trainer, and if the Claimant was injured; then she was the author of her own misfortune.

Judgment

Carole J and Brown J dismissed the claim for the following reasons.

Standard of Care

The Canadian law on negligence is not dissimilar to its English equivalent. When considering whether a fitness instructor had failed to properly train and instruct participants, the court had to consider the risks which the participant would necessarily undertake. Support was drawn from Kempf v Nguyen 2013 ONSC 1977 as follows:

Certain activities, particularly sporting activities, are fraught with risk and this fact cannot and should not be ignored. However, the duty of care is established by the relationship between the parties. The nature of the risks inherent in a given activity is relevant to what the proper standard of care is in a specific situation. Put differently, the question of what constitutes reasonable care is affected by what risks a person participating in a sporting event could reasonably have expected to face.

The Superior Court of Ontario found that the slam ball exercise was not an inherently dangerous exercise or activity, nor was it a complicated exercise. The court was satisfied that the instructor had prepared the exercise space for the participants and placed mats at the front for participants to select.

The Claimant gave inconsistent evidence at trial. While at first she was insistent that the instructor had not given any instruction, she later stated that she could not remember what instructions were given, and could not recall the specifics of the instruction. The court was satisfied that appropriate instructions were given at the outset of the class. Further, it was not accepted that it was negligent for the instructor to turn her back to start the timer. This was a brief action and was appropriate in the circumstances.

Comment

There are two points which English practitioners should drawn on from this judgment. First, the mere fact that a sports instructor has not warned of a risk does not automatically mean that the Claimant can succeed on liability. An analysis has to be undertaken as to the nature of the risk, and whether it was a risk that could reasonably be anticipated by a person participating in a sporting event.

Second, the judgment is a key reminder of the requirement for experts to be impartial and independent. The Claimant’s expert, Mr. Padman, was described as ‘biased’. Indeed, the court ruled that he appeared to be ‘advocating on behalf of the plaintiff’. The failure to act as an impartial expert undermined his credibility and resulted in the court not placing great weight on his evidence.

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