Andrew Gilmour

In the case of McCormack v Sportsdirect.com Fitness Limited, the Sheriff Appeal Court provided guidance on how to analyse and determine whether an occupier of premises containing defective items should be liable for such an accident.

It has long been a feature of Scots law that in certain circumstances, the maxim res ipsa loquitur could apply to an accident. The claimant should establish that the thing which caused damage was under the defender’s management and control, and that the accident was of a type that does not ordinarily occur if proper care is taken. An inference of negligence is then accepted only if the defender can offer no explanation consistent with absence of fault on their part.

In McCormack, the claimant was injured by a ragged edge on the outer rim of a weight plate in a gym that cut his hand when he tried to place it onto a shoulder press machine. How the damage to the plate occurred was unknown.

At first instance, the court decided that res ipsa loquitur applied to the accident circumstances and found for the injured party. The view taken was that the gym owner could not provide a reasonable explanation for how the accident occurred without negligence. The court held the gym owner had exclusive management of the premises, controlling access by way of membership and subscriptions. The owner employed staff on reception and on the gym floor. Seeking to place a weight plate onto a machine should not ordinarily cause injury to a user. There was no evidence of any inspection of the plate on the morning of the accident and no faults were recorded.

However, the appeal court decided the court had erred in focusing over the control exerted over the gym premises, rather than the weight plate itself. The court was bound to consider and decide the question in this way, as if there was no control over the thing that caused the accident, then res ipsa loquitur did not apply and liability would not be established.

The court had regard to the well-established observation that the principle only applied where the incident suggests negligence on someone’s part and, because of exclusive management and control in the defenders at the time when the negligence occurred, it can be presumed it was the defenders who were negligent. In this case, the free weights and shoulder press machine were not in the exclusive control of the gym. The gym was open to members of the public who had a membership or subscription to use the premises. Those members had free use of the weight plates during the course of their exercise.

Therefore, the appeal court overturned the decision and absolved the gym from any liability, as the exclusive management and control over the weight plate had not been established.

The decision raises questions about exclusive management and control of items in premises. Does the presence of members of the public mean that few items in the premises could be under such control? When should a claimant seek to establish a case based on a failure to take reasonable care, rather than risking establishing that res ipsa loquitor applies? A number of cases are addressing this issue and no doubt further guidance will follow.

Andrew Gilmour is a partner at Horwich Farrelly. This article first appeared in The Scotsman.