Ruth Ireland v David Lloyd Leisure Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lord Justice Beatson,Lady Justice Arden |
| Judgment Date | 14 June 2013 |
| Neutral Citation | [2013] EWCA Civ 665 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2012/1187 |
| Date | 14 June 2013 |
[2013] EWCA Civ 665
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
Mr Recorder Berkley
1BS00506
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Beatson
and
Lord Justice Ryder
Case No: B3/2012/1187
Mr Brent McDonald (instructed by Berrymans Lace Mawer Llp) for the appellant
Mr Gareth Compton (instructed by Bobbetts Mackan Solicitors) for the Respondent
Hearing dates: 14 March 2013
Approved Judgment
On 1 February 2008 the claimant visited one of the defendant's clubs in Bristol (the gym) accompanied by a friend, Ms Withey, who acted as her spotter, i.e. a gym partner who provided help with weights as required and reminded the claimant to adopt the correct posture as they worked through their usual routine. The claimant and Ms Withey took it in turns to spot for each other. For convenience, I shall refer to the appellant as the claimant and the respondent company as the defendant.
As they neared the end of their routine, the claimant and Ms Withey decided to do some squats: from a standing position, squatting down and standing back up with a weight placed across their shoulders. They chose to use a 'Smith' machine which was on the upper floor of the gym. The machine is a large frame which roughly resembles a rectangular metal A-frame or trestle adjacent to the front of which are two vertical metal rails (referred to by the judge, Mr Recorder Berkley, as poles). The barbell is fixed within the rails which permit only a vertical movement. The barbell cannot move from side to side nor can it be raised or lowered on one side without an equivalent movement on the other. There is a slight gap between the frame of the machine and the rails which are accordingly to the left and right of the person performing squats on the machine.
At the base of each rail is a rubber block which acts to stop the barbell hitting the floor and in front of each rail is a series of hooks to allow the user to secure the bar at any point without the need to ask for assistance. The Recorder found as a fact that on the machine that was used on the day in question there was an additional 'rubber or other solid block' which was permanently fixed in place between the rail and the frame. A close examination of the photograph of the machine that was in use demonstrates the existence of the block at between hip and waist height on the left side of the frame and rail as one looks at the front of the person using the machine.
It is of note that the position of this additional solid block was not known to the defendant before oral evidence was heard by the Recorder and only came to light as the evidence developed and the Recorder asked questions to clarify the cause of the accident that happened. The replies to the defendant's Part 18 request had disclosed the existence of 'a rubber stopper' and its critical role but no-one identified its position. Although the block is shown on the photograph of the actual machine it is not visible on the trial bundle photograph of a generic Smith machine.
The only relevant pleading of fact in the particulars of claim is at paragraph 3:
"The Claimant was standing next to the machine, leaning on the machine, when she suddenly experienced intense pain in her left hand. The Claimant then realised that the machine had cut off the tip of her left index finger."
The claimant's reply to the defendant's Part 18 request for further information includes the following:
"The Claimant was holding the pole and leaning forward as described. When her gym partner Shonagh began to squat, the barbell across her shoulders was lowered down the pole towards a rubber stopper. The Claimant's hand was resting on the pole and as the barbell lowered it took the Claimant's left index finger towards the stopper which acted as a guillotine."
What happened was described by the Recorder in the following terms:
"whilst observing her friend carrying out exercises, [the claimant] placed her hand upon the pole so that the tip of her left finger rested on the block. As the weights descended, the plate tracking the pole and holding the weights acted in combination with the block I have referred to, acted as a guillotine, thereby slicing off the top of the [claimant's] finger"
The Recorder also found that there was a sign on the machine, of which the appellant was aware, which warned her to keep her "body, hair and clothing free of all moving objects". The claimant's evidence which can be compared with the photograph, was that the sign was small and that it was on the horizontal bar at the top of the A-frame. In fact this court has been taken to a photograph that demonstrates there were two signs, one in the position identified by the claimant and another at the foot of the frame of the machine near to the floor.
It is a feature of the trial that the defendant appears to have been taken by surprise by the evidence which the Recorder accepted about the mechanism of injury. The mechanism is consistent with the pleaded case, in particular the reply to the Part 18 request but it is not that which is said to have been envisaged by the defendant (or perhaps more accurately, their legal advisers). On the grounds one would imagine of proportionality there were no skeleton arguments and the Recorder came to the issues of fact and law 'cold'. He determined the issues of fact at the end of the day listed for the trial and felt unable to deal with the implications for liability without further submissions which were adjourned to a second day.
The particulars of negligence and breach of statutory duty were pleaded in broad terms. The relevant particulars are as follows:
(1) failed to mark on the machine the point of danger/risk where the claimant suffered her injury;
(2) failed adequately or at all to warn the claimant of the danger and/or dangers posed by the machine;
(3) failed to have any or any sufficient regard to the danger posed by the machinery and/or the part of the machinery that caused the claimant's accident;
(4) failed to take any or any sufficient steps to ensure that the claimant was safe as a visitor to the gym.
In oral evidence, the claimant's case was succinctly put. She would have expected to have been told how dangerous the rail was and to have been warned to stand away from it and not put her hands anywhere near it.
The Recorder held that alternative allegations of breach by failing to provide training, information or induction in the use of the machine were neither proved nor causative and also that it would not have been reasonable to place a cage or guard around the rail. He relied upon the evidence of the claimant to the effect that "had a member of staff approached her and asked her whether she knew how to use the machine, she would have said that she did and declined assistance".
The Recorder accepted the evidence of the claimant: "I performed my squats first and then Shonagh proceeded to do hers. As we chatted I rested my left hand on one of the vertical resting points. Suddenly, I became immediately aware that something had happened to my left hand index finger". He accepted her evidence that the severed tip of her finger "lay on what she described as a 'block' approximately one third up the frame of the machine at hip-height and that the severance of the finger had been caused in a guillotine action as the weights descended, passing this block". The Recorder explained that the photograph put to the claimant from the trial bundle did not show the block and that as a consequence of his request on the afternoon of the trial day for a better copy of a black and white photograph of the actual machine, the parties and the court had had disclosed to them a better quality colour photograph of the actual machine that clearly shows the existence of the block. It is accordingly not surprising that the Recorder was able to find as a fact that there was "a rubber or other solid block, fixed in place between the pole and the A-frame of the machine".
The Recorder's findings of fact were inevitable from the evidence that he accepted which, it should be noted, included the evidence of the defendant's operations manager which he found to be frank and honest. It is not asserted on this appeal that any of the Recorder's findings of fact were wrong, that would be a hopeless assertion but rather that the findings were unavailable to him on the pleaded case and that accordingly he should not have found for the claimant.
At the conclusion of his preliminary judgment delivered on the adjournment of the hearing, the Recorder held at paragraph [38] "that it was reasonably foreseeable by the defendant that a member of the gym would be caused some physical harm by them placing their hand where the claimant placed hers". He also found that the "risk was or should have been obvious to any person who had had the opportunity of observing the machine or having used it". Having regard to the way in which the evidence turned out, the Recorder then adjourned the hearing for further submissions and judgment.
The claimant delivered written submissions in which she argued that the type of harm, physical harm, was foreseeable, there being no requirement to prove that the actual injury was foreseeable, whether as to mechanism or extent. The claimant relied upon the Recorder's formulation of foreseeability above which he had further summarised at paragraph [36] of his preliminary judgment as "the obvious risk of being injured by moving...
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