Hi , my mother is a member of Virgin act...

Asked by the Customer on 16-07-2016 07:29:57
Question posted in the Malpractice Law category relating to KwaZulu-Natal

Hi , my mother is a member of Virgin active ,last week after her session she went to the changing room and needed the toilet . While in the toilet. unbeknown to her, the cleaning lady came in and started mopping the floor . Upon exiting the toilet she slipped on the wet floor resulting in a multiple fracture of her wrist and a knock to the head. The staff where completely incompetent , running around trying to find non existing ice packs and then applying a firm fitting bandage where a splint and a loose fitting bandage should have been a trained first aiders course of action. The injury resulted in a operation where a metal plate has been inserted , and a prolonged stay in hospital. The only wet warning sign was placed outside the changing rooms in the passageway facing the people entering the rooms, no thought was taken in respect to a warning for people already in the room never less those exiting the toilets . Surely a non slip changing room floor should also be common practice in a place where water could be evident ? However I have heard that in the small print of Virgin Actives membership form it releases themselves from indemnity in the event of accidents ?
Thanking You
Brett

Further information relating to Question:

Sorry is there any advisable legal course of action considering the inept actions of Virgin Active?

Message from the Attorney

Posted by Att. Patrick on 16-07-2016 11:29:54

Hi there and thank you for your question,

This is a further information request. Please continue in this same question conversation so that I can see your reply.

In order to answer your question better I need to see the actual disclaimer that Virgin Active displays at the entrance to their clubs. I am heading to one of their clubs now and will take a photo of the disclaimer. Can you give me a few hours before I reply in full?

In general such a disclaimer DOES require the person to waive certain claims against the company, and also absolves the company from damages and/or harm caused by certain actions. Let me look at the disclaimer and I'll come back to you.

Att. Patrick

Message from the Customer

Hiya again Patrick hope all is well. No problem . Disclaimer on show I did not think about , I was thinking more on the lines of the small print in the membership contract that members have to sign ?
Thanking You
Brett

Message from the Attorney

Posted by Att. Patrick on 16-07-2016 18:01:47

Hi there Brett,

The disclaimer in the small print on the contract is certainly one place to look, but the better place to look is on the entrance door. I know that all Virgin Actives have the same disclaimer.

See here:

Click here for the bigger url: https://s31.postimg.org/l9192tsbf/20160716_142952.jpg

As you can see, by entering into the premises you are agreeing that they don't be liable for any damage or loss arising out of death, injury, illness or trauma suffered as a result of any negligent act or omission. They have not contracted out of gross negligence - which by law they can't.

That essentially means that you will need to prove that their actions amounted to gross negligence before your mom could successfully sue them. That's quite a hurdle to overcome. On the face of it you would say that their actions were grossly negligence, but in my legal opinion I don't think that they were.

Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care.

Basically you would need to prove that the cleaner specifically intended to fail to use reasonable care when mopping the floor. But you said that she put a sign up outside the bathrooms - so Virgin Active would argue that that is sufficient.

I'm not saying that your mom doesn't have a claim, I'm saying that she will need to prove gross negligence on VA's behalf - which is quite difficult to do - if I'm being honest!

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.