Arnold opens a gym in London, and Bob in Birmingham.

Arnold’s writes into its terms of use a disclaimer that any injury resulting from use of the facilities while wearing open toed shoes is the customer’s own sole liability.

Bob’s instead totally prohibits all use of the gym without fully covered footwear. A customer is told off by a manager of Bob’s and asks why, and Bob’s’ manager retorts “what happens if you drop a weight on your foot and something happens? Then we would be responsible.” Is the manager of Bob’s gym correct in this statement? Does it follow then as well that if the consumer dropped a weight on their foot in spite of their compliantly closed toe footwear, then Bob’s would still be liable? If so, then what for?

Meanwhile a customer of Arnold’s drops a weight on their foot wearing sandals, and tries to sue the establishment. Arnold’s relies on the disclaimer in the terms of use that both parties signed in defence. Is there any reason why Arnold’s’s defence is impotent?

2 Answers 2


Arnold's disclaimer won't work. A consumer contract or notice can't exclude or restrict liability for a gym member's injury that resulted from the gym's negligence.

Bar on exclusion or restriction of negligence liability, section 65 Consumer Rights Act 2015:

(1) A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence.

(2) Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader’s liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice.

(3) In this section “personal injury” includes any disease and any impairment of physical or mental condition.

(4) In this section “negligence” means the breach of—

(a) any obligation to take reasonable care or exercise reasonable skill in the performance of a contract where the obligation arises from an express or implied term of the contract,

(b) a common law duty to take reasonable care or exercise reasonable skill, (c) the common duty of care imposed by the Occupiers' Liability Act 1957 or the Occupiers' Liability Act (Northern Ireland) 1957, or

(d) the duty of reasonable care imposed by section 2(1) of the Occupiers' Liability (Scotland) Act 1960.


Bob's representative may not be correctly articulating the risks but nevertheless is on the right track.

Suppose the gym member began legal proceedings against the gym because the gym member allegedly suffered an injury due to the gym's negligence. The gym owner will want to have evidence the gym was not negligent, that there were adequate measures in place to prevent injury. Otherwise the gym may be found liable and forced to pay compensation.

The gym owner might have public liability insurance in case of legal proceedings. This insurance may cover legal costs as well as compensation in the event of a payout (whether settlement or court ordered). But there is a common law duty on all insurance policyholders to act as if uninsured and take all prudent and reasonable steps to prevent injury or damage of the type covered by the insurance. Insurance policies often (if not always) mention this duty or have a clause to that effect. So the gym owner must persuade the insurance underwriter that they were not negligent, otherwise the underwriter may decide not to cover the event.

A footwear rule may be a consequence of those considerations.

"We don't allow a member to use the gym until they go through an induction. We observe members using the gym and if they are using the equipment improperly we give them proper instruction. We regularly and properly maintain the equipment and we prevent members from using faulty equipment. We keep the paths between equipment clear and ask members to put away their equipment after using it. We quickly clean away liquid spillages. We don't allow members to use unsuitable footwear. ..."


I will answer one of your several questions.

a customer of Arnold’s drops a weight on their foot wearing sandals, and tries to sue the establishment. Arnold’s relies on the disclaimer in the terms of use that both parties signed in defence. Is there any reason why Arnold’s’s defence is impotent?

There is a line of authority in Canadian law that can lead to exclusion-of-liability clauses being unenforceable.

When there are unusual exclusion clauses, inconsistent with the main purpose of the contract, executed in hasty circumstances, where the contract is long and/or small and the signer's attention is not drawn to the exclusion clauses, courts have been wary to enforce them.

Karroll v. Silver Star Mountain Resorts Ltd., 1988 CanLII 3294 (BC SC):

[18] ... to allow someone to sign a document where one has reason to believe he is mistaken as to its contents, is not far distant from active misrepresentation.

[19] In the usual commercial situation, there is no need for the party presenting the document to bring exclusions of liability or onerous terms to the attention of the signing party, nor need he advise him to read the document. In such situations, it is safe to assume that the party signing the contract intends to be bound by its terms.

[20] But situations may arise which suggest that the party does not intend to be bound by a term. In Tilden the hasty, informal way in which the contract was signed, the fact that the clause excluding liability was inconsistent with the overall purpose of the contract, and the absence of any real opportunity to read and understand the document given its length and the amount of small print on its reverse side, led the Court to conclude that the defendant should have known that the plaintiff had no intention of consenting to the onerous exclusion in question. In these special circumstances, there was a duty on Tilden to take reasonable measures to bring the exclusion clause to the attention of Mr. Clendenning.

Tilden Rent-A-Car Co. v. Clendenning, 1978 CanLII 1446 (Ont. C.A.) said:

In modern commercial practice, many standard form printed documents are signed without being read or understood. In many cases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party, and, in the absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum.

In the case at bar, Tilden Rent-A-Car took no steps to alert Mr. Clendenning to the onerous provisions in the standard form of contract presented by it. The clerk could not help but have known that Mr. Clendenning had not in fact read the contract before signing it. Indeed the form of the contract itself with the important provisions on the reverse side and in very small type would discourage even the most cautious customer from endeavouring to read and understand it. Mr. Clendenning was in fact unaware of the exempting provisions. Under such circumstances, it was not open to Tilden Rent-A-Car to rely on those clauses, and it was not incumbent on Mr. Clendenning to establish fraud, misrepresentation or non est factum. Having paid the premium, he was not liable for any damage to the vehicle while being driven by him.

As Lord Denning stated in Neuchatel Asphalte Co. Ltd. v. Barnett, [1957] 1 W.L.R. 356 at p. 360: "We do not allow printed forms to be made a trap for the unwary."

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