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Ask Mike Otis Your Own Question
Mike Otis
Mike Otis, Legal Advisor
Category: South Africa Law
Satisfied Customers: 2161
Experience:  B.Comm; LL.B; LL.M.
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I currently work at Virgin Active as a personal trainer, and

Customer Question

I currently work at Virgin Active as a personal trainer, and while training I got an injury from an recently installed piece of equipment that dislodged from the wall, currently I have whip-lash incurring medical bills and at the same time not working, as no work equals no pay.

I just learnt as well that the insurance that the personal trainers have with Virgin Active does not protect me from injury but rather protect claims being made against me.

I need to be compensated for the money lost from bills and being at home ? Any help

Zain
Submitted: 5 years ago.
Category: South Africa Law
Expert:  Mike Otis replied 5 years ago.
Welcome, and thank you for your question.

Could you perhaps clarify whether you are an employee (you have to keep fixed hours, have to take directions from the employer and is paid a salary) of Virgin active or whether you are an independent contractor (who set their own hours, work directly with clients, etc.)?

Yours faithfully,
Customer: replied 5 years ago.
Hi , I am a franchise personal trainer, I pay rent to virgin to use their facilities , but in the same light the contract allows me to go for training by virgin and workshops and get the same incentives as a virgin employee .
Expert:  Mike Otis replied 5 years ago.
I'm afraid that the nature of your relationship with Virgin is not that of employer/employee, but rather that of an independent contractor, based on the amount of freedom that you have to determine your own working conditions.

However, in case I am wrong, your claim for compensation would be against the Workman's Compensation Fund of the Department of Labour and in terms of the Compensation for Occupational Injuries and Diseases Act. The claim will be based on injuries sustained while on duty. The claim needs to be submitted by the employer and supported by medical report forms completed by the medical practitioner that examined you and determined when you may return to work. If you have a claim against the WCF, then in terms of the Act, you claim against the employer is excluded.

If you are an independent contractor, which I believe you are, your claim would be based on public liability of the gym, similar to the liability it has to all its customers to provide a safe gym experience and equipment that is in a safe condition to use for the purpose it is intended. A word of warning, though, your contract with Virgin might contain an indemnity clause excluding liability for such incidents. If in doubt, please take your contract to a legal practitioner for advice.

In order to succeed with your claim for damages suffered as a result of using the faulty equipment (assuming you get past the indemnity, which can be done in certain instances), you will have to prove that the gym was negligent in providing the faulty equipment, that you were using the equipment for the purpose it was intended for, that you suffered damages (injuries, medical expenses, loss of income, etc) as a direct consequence of the faulty equipment and the amount of your damages. There are attorney firms that specialise in this type of claim. Some would even represent you on a "no win, no fee" basis. The following websites might be of use in finding such legal representation: www.attorneys.co.za or www.findanattorney.co.za.

Yours faithfully,