Sport climbing is booming all over the world, particularly after its Olympic debut at the Tokyo 2020 Games, both professional and amateur climbers have increased in numbers. Bouldering is also getting more popular in Hong Kong in recent years, attracting many consumers, especially younger ones. In light of the frequent enquiries from consumers about the safety and protection of participants at indoor bouldering gyms, the Consumer Council arranged for staff to survey 10 such establishments as mystery customers. Upon reviewing the waivers/disclaimers requiring consumers’ signature, the Council found that most clauses had cumbersome wordings that might generally be too difficult for consumers to fully comprehend, whereas the scope of exemptions was too broad, thus consumer disputes may easily arise in the event of accidents. Furthermore, 70% of the surveyed gyms only provided an English version of the waivers/disclaimers, and venue staff did not even clarify to consumers that the document they were signing was a waiver/disclaimer. Even when disclaimers in bilingual format could be provided upon request, discrepancies were found between the bilingual and English versions. The Council calls on these premises to provide clearer and more comprehensible waivers/disclaimers, and to take the initiative to explain the content to customers, whereas consumers are advised to protect their own rights by scrutinising and understanding the details before signing any document.
The main difference between bouldering and other types of rock climbing is that neither safety ropes nor protective equipment is used, and participants require only comfortable clothing and suitable climbing shoes, while no qualifications are needed for using a bouldering gym. Bouldering walls are studded with “holds” in various colours and shapes, allowing participants to climb up or move sideways. The process not only tests physical strength, muscle power, body balance and coordination, but also challenges one's willpower, problem-solving and analytical skills, making it a holistic workout for both the body and the mind. Between October and December 2022, Council staff visited 10 indoor bouldering gyms (“venues”) in Hong Kong as mystery customers. Each venue was visited 3 times to observe how they accommodate novice boulderers in arrangement, instruction and safety measures.
1 Gym Did Not Mention Document Requiring Signature Was a Disclaimer Thus Might Be Excluded from Contract
Trialists made enquiries with the 10 sampled bouldering gyms as bouldering novices. All gyms required consumers (“participants”) to fill in a “waiver of rights” or “disclaimer” before entering the venue, which primarily sought to exempt the establishment and its staff from accountability for any accident arising. 8 provided an online version to be filled in advance, and an email copy was sent back to the participant for record. 7 of the 10 premises provided only English disclaimers, while only 3 provided bilingual versions, 1 of which only revealed that a bilingual hard copy was available upon the trialist’s enquiry, yet it was much simpler and shorter (with 2 clauses only) than the online version (with 15 clauses), which could cause consumers using the bilingual version to miss out on important clauses. 1 of the venues that provided only an English disclaimer on the day of the trial later replied to the Council's enquiry that a Chinese version is now available. When asked about details of the terms and conditions, staff at 4 gyms could not always explain clearly, amongst which 2 gyms never answered the trialists’ enquiries through instant messaging software, which was not desirable.
In addition, the staff of 1 gym never stated that the back page of a personal particulars form was in fact a disclaimer, nor did they make sure that the Council’s trialist had read the terms. Businesses are reminded that a disclaimer may not constitute part of a contract and binding on the consumer if he is unaware of its existence. In addition, if the consumer was misled by the staff into believing that he was only providing his personal particulars, the disclaimer may be held unconscionable under the Unconscionable Contracts Ordinance which the court may refuse to enforce.
As regards the scope of the disclaimers, 7 bouldering gyms expressly excluded liability for injury or death caused by the negligence of the venue operator; 9 gyms utilised words such as “all”, “any” or “or otherwise” in an attempt to impose a blanket exclusion of liability. 8 venues expressly excluded liability for or required consumers to bear risks arising from the conditions of venue and equipment, and risks that are not “inherent and obvious”.
The Council recommends bouldering gym operators to provide Chinese/English bilingual disclaimers and explain its details and the risks involved in the sport, so as to ensure consumers fully understand the terms and conditions. They should also allow sufficient time for consumers to read through the terms and conditions before signing, provide them with copies for record keeping, and strengthen staff training. Consumers should carefully read and thoroughly understand the terms and conditions before signing any document, make immediate enquiries if there is anything unclear, and retain a copy of the document in case of dispute. Even if a disclaimer is signed by the consumer, under the Control of Exemption Clauses Ordinance, the business cannot rely on such disclaimer to absolve or limit its liability for injury or death of a consumer arising from its negligence. As for property and other loss or damage, the disclaimer must be fair and reasonable in order to be effective. Bouldering gym operators have a duty to take reasonable care in ensuring that their premises and equipment are reasonably safe for use, including warning of risks not apparent to consumers, and in inspecting and maintaining the safety of the premises and equipment.
As for third party liability insurance, 7 out of 10 bouldering gyms indicated that they had taken out third party liability insurance with coverage ranging from $500,000 to $20 million, while 1 claimed to be still in discussion with insurers. The remaining 2 gyms did not respond. The Council reminds the operators of the need to regularly review the insurance terms and coverage in order to provide comprehensive protection for consumers.
Novices Advised to Take Beginner’s Classes to Learn Basic Skills and Etiquette
While bouldering may seem easier than actual rock climbing, it can cause danger to the participant and others if basic climbing and proper falling techniques weren’t learnt beforehand. All 10 venues offered beginner's classes for bouldering novices, with costs ranging from $228 to $458. The 45-minute to 1-hour classes included an introduction to the sport, basic etiquette, bouldering and falling techniques, and participants will attempt several beginner's routes under the guidance of an instructor. However, only 4 venues strongly recommended novices to take the beginner's class, while the other 6 allowed Council trialists to directly purchase tickets and use the gym on their own after a briefing on basic bouldering techniques and a demonstration of safe falling. Furthermore, 9 venues did not clearly state the language of instruction for the beginner’s classes on their registration page, of which 1 informed participants that the class would be taught in English only 5 minutes before it started. As this gym did not offer refunds nor allowed rescheduling of the class, participants might not fully grasp the taught content due to language barrier, leading to increased risks when climbing.
During trials by Council staff, all gyms had instructors on site and staff were also readily available to answer questions and provide assistance. Some instructors would immediately warn participants when they were making dangerous moves. Given that not all bouldering areas could be observed by staff at the reception area, all 10 venues were installed with surveillance cameras, but only 5 were found to have regular inspections of the bouldering area by designated staff during the Council’s trials. The Council recommends premises to arrange regular patrolling by staff at bouldering areas to check on participants, so as to minimise the chance of accidents. In addition, to attract customers, gyms would change bouldering routes regularly and the gyms would either fully or partially close during the works. However, 1 venue was found to have left an electric drill and other tools on the crash pads during route changing work, while the step ladder was left open, yet the area was neither fenced off nor guarded by staff. The gym later replied they would pay better attention in the future to the storage of tools and safety concerns to minimise risks on site.
While the Council encourages the public to exercise more to keep fit and healthy, consumers are reminded to receive proper training before participating in a new sport. Consumers contemplating bouldering but have no prior experience should bear the following in mind:
- Read all documents carefully and understand terms and conditions before signing. They should also retain a copy of the documents as supporting evidence in case of dispute;
- Bouldering poses certain danger to novices. First-timers are recommended to take a beginner’s class to build up their bouldering skills under instructor guidance, and to learn proper falling techniques and basic bouldering etiquette to prevent injuries to themselves and others due to exerting wrongly or dangerous movements. They should also enquire about the language of instruction before signing up;
- Warm up thoroughly before bouldering, wear light sportswear and refrain from wearing accessories, including rings, necklaces, watches, etc.;
- Observe the climbing path carefully before execution to ensure no overlap with that of other participants. Check if immediate surroundings are safe before falling, and try controlled descent to closer to the ground before falling;
- In case of doubt about the route, facilities, or equipment during the climb, immediately seek help from the staff;
- Some venues do not offer storage with locks, so avoid bringing valuables to prevent loss of property.
Download the article (Chinese only): https://ccchoice.org/556boulderinggyms
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