Court of Appeal
The court upheld a finding that a gym owner was liable, subject to a 25 per cent deduction for contributory negligence, for an injury sustained by one of its members. Although the case had been pleaded broadly, the pleadings were not inadequate and the judge's findings of fact had accorded with the evidence.
The appellant (D), a gym-owner, appealed against a finding that it was liable, subject to 25 per cent contributory negligence, for an injury sustained by one of its members (R). R had lost the tip of a finger in an accident at one of D's gyms. She had been "spotting" her friend (W) who was performing squats on a "Smith machine". Her role was to help with the weights and to remind W to adopt the correct posture. The machine comprised a frame within which a barbell could be moved up and down between two sets of vertical metal rails. At the base of each rail was a rubber block to stop the barbell hitting the floor. The machine used by W had one additional block between the rail and the frame on the left hand side, between hip and waist height. R's evidence at trial was that she had been holding the rail with her finger resting on the block. When W began her exercises, the barbell moved down onto the block, trapping her finger and acting as a guillotine to sever the tip. There were two signs on the machine warning users to keep "body, hair and clothing free of all moving objects". R had pleaded her case in broad terms and the existence of the block had only come to light in her replies to D's CPR Pt 18 request. Before then, D had not been aware that the machine had the additional block. In a preliminary judgment, the recorder held that it was reasonably foreseeable that a gym user would be caused some physical harm by them placing their hand where R had placed hers. D submitted to him that he had made findings of fact that were not open to him on R's pleaded case. It argued that he had either to find against R or consider an application, if made, to amend the pleadings. Instead, the recorder went on to find for R. He concluded that there was a risk with the machine that was out of the ordinary and was not obvious, and that the warnings were inadequate. He held that D was 75 per cent negligent and R 25 per cent. D submitted that (1) the recorder had been wrong to find that the machine posed risks that were not obvious and apparent, and had been wrong to find that the warnings were inadequate; (2) R's pleadings were inadequate, her case differed from the recorder's findings both as to the mechanism of the injury and the hidden nature of the danger, and the prejudice to D could only have been met by an application to amend the pleading; (3) the recorder should have found contributory negligence by R to the extent of 75 per cent.
Held (1) The questions for the recorder were ones of fact and opinion and his conclusions were entirely consistent with the evidence. To hold that the rubber block, in that position, posed a risk which was not obvious and apparent was well within the broad ambit of judgment afforded to a first instance judge. Moreover, the recorder's conclusion accorded not only with R's evidence but also that of two of D's witnesses, who had conceded that there ought to have been a warning about the risk posed by the block. Although there were two general warning notices, neither was immediately visible, and the recorder's finding about their inadequacy was unimpeachable (see paras 23-27 of judgment). (2) It was perhaps unsurprising that a claimant who had suffered a traumatic amputation which she had little opportunity to analyse contemporaneously was thrown back on a general pleading. The task of determining how the accident occurred had not been assisted by D's failure to ask for particulars of the position of the rubber block identified in the Pt 18 replies. That was aggravated by a genuine mistake on the part of D's witnesses in exhibiting a photograph of a different model of the machine, which did not have the additional rubber block. The mechanism of the injury was adequately pleaded in R's Pt 18 replies. The purpose of a Pt 18 request was to obtain clarification of a party's pleaded case, and D had sought neither further particulars of the replies nor an adjournment. A party who sought to rely on an entirely proper but tactical decision on the pleadings had to consider the possibility that the judge might consider the pleadings to be adequate. In the instant case, they were adequate (paras 31-33). (3) R's submission on contributory negligence misunderstood the nature of the recorder's formulation on the facts that the block represented a danger which was unusual and unknown to R and which should have been guarded against by a specific warning. He had reached an evaluative judgement based on the evidence and there was no basis for undermining it (para.34).
 EWCA Civ 665
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