In a twist over an exercise class injury

By Jonathan Goldberg, May 1, 2012
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Sandra from Hendon writes:

I signed up for an expensive 10-session course of Pilates at a private local gym, where the selling point was that the class was very limited in size and consisted only of ladies aged over 60, such as myself. The teacher was said to be a great expert, who was able to give close personal attention in view of the small size of the class. After just three sessions I hurt my back badly, despite following her instructions closely, and the doctor says I have pulled a muscle through over-exertion and must now give it up. Do I have any redress against the gym or the teacher?

Sandra, I think you should be sensible and realistic, and the answer is, of course, no. Everyone knows that all physical exercise carries benefit, but always at some risk of injury or muscle strain. I think it is quite likely that you will have signed smallprint which will have warned you of just such a possibility. Even if not, the law will imply that you accept the risk of minor injury when you join any such class.
Unless you could demonstrate that the teacher was demanding grossly unreasonable physical tasks from you, having regard to what she knew of your age and general state of health, you would not be able to prove negligence or breach of duty of care against her or the gym.

If the other ladies have managed to get through it unscathed, it is the best evidence that the teacher did nothing untoward. Your best course now, I suggest, is to approach them humbly and charmingly and ask if they might refund you the balance of the lessons purely as a matter of goodwill on their part. You never know until you ask.

Juliet from Wimbledon writes:
I am desperately worried for my son who is aged 22 and is studying to be a barrister. A month or so ago he was travelling by train from Wimbledon to London Blackfriars. It was the morning rush hour and the barriers were not working at Wimbledon, and an attendant waved him through without him apparently touching in his Oyster card. When he tried to exit at Blackfriars, he was rudely accused of fare dodging, and asked to pay an on-the-spot penalty of £20. He was given the choice of paying it or appealing, but was warned that if he did not pay the penalty, he was likely to be prosecuted as a matter of company policy. Since he did not have enough money on him, the choice was simple.

A letter has just arrived telling him that travel fraud costs the rail industry over £400 million per year, that they have a zero tolerance policy to fare evasion, and that they intend to prosecute and will seek the maximum penalties, which they list as including a criminal record, a fine up to £1000, or a prison sentence, plus compensation and costs.
I am now fearful for his whole future career. What should we do?

Juliet, one of the joys for me in writing this column is that I get to research a host of legal problems which do not normally come my way, certainly at this stage of my career. I am rather more familiar, I confess, with defending alleged murderers than alleged fare dodgers. However, I think you can assume there is a good deal of hype in this standard and heavy-handed letter from the railway company, which was carefully designed to strike just such fear into the hearts of its recipients. Your son’s solicitor should write a full letter back, setting out the facts of his defence, and inviting them not to prosecute. It should go on to warn that if they do prosecute, he will seek costs against them if and when he is acquitted. To resolve the matter amicably and cheaply, it might be worth offering to pay the £20 penalty at this stage, but stating this is without any admission of liability and purely to be rid of the matter.

I find that he does undoubtedly have a good defence in law, if the facts are as you have said. Under something called Railway Byelaw 17, made under Section 219 of the Transport Act 2000, it is a defence to travelling without a valid ticket if “there were no facilities in working order for the issue or validation of any ticket at the time when, and the station where, he began his journey… or an authorised person gave him permission to travel without a valid ticket”. Happily, your son appears to qualify under both heads , Juliet.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC is a leading London barrister. Visit www.GoldbergQC.com

    Last updated: 2:32pm, January 4 2013