Gym operator granted decree of absolvitor after Sheriff Appeal Court allows appeal against damages award

About this case:

• Citation:
  [2025] SAC (Civ) 15
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Catherine Dowdalls KC

Pursuer Jack McCormack was awarded £6,881.95 by the sheriff in his action against defender and appellant Sportsdirect.com Fitness Ltd, which operated the Everlast Fitness Club at Glasgow Fort. The appellant argued that the sheriff had insufficient evidence to find it had been negligent, and erred in applying the maxim of res ipsa loquitur.

The appeal was heard by Sheriff Principal Kate Dowdalls KC with Appeal Sheriffs Robert Fife and Christopher Shead. Pugh KC and Hennessey, solicitor advocate, appeared for the appellant and Khurana KC and Calderwood, solicitor advocate, for the respondent.

Ragged edge

The respondent, along with his friend, Mr McAlister, went to the appellant’s gym on 5 November 2021. They decided to use a shoulder press machine during their workout. Before commencing the exercise they began loading weight plates onto the machine. As the respondent did this, he immediately felt pain in his left hand. It transpired that he had suffered a cut to the ring finger and palm of his left hand, although he was unsure how he had been injured. After the accident, Mr McAlister checked the weight plate and noticed a ragged edge on its outer rim.

Evidence was also given by Mr Rashid, an employee of the appellant, who stated that the plate and other equipment in the gym had been inspected that morning. However, the sheriff found that res ipsa loquitur applied, that the appellant had exclusive control over the premises, and that the appellant had not demonstrated that the accident occurred without fault on its part.

Senior counsel for the appellant submitted that the sheriff had not made a finding that the ragged edge as described by the sheriff amounted to a defect and was visible before the accident. Absent any finding as to the extent of the defect, he could have found that the hazard it created was reasonably foreseeable to the appellant. Additionally, non-negligent causes were possible, including damage in ordinary usage by a member of the gym, over whom the appellant had no control.

For the respondent it was submitted that there was no basis to interfere with the sheriff’s findings in fact, on the basis of which he was entitled to hold that res ipsa loquitur applied. Had the appellant made sufficient averments of a reasonable system of inspection and maintenance, they could have led evidence regarding the same to displace the operation of the maxim.

Question of control

Delivering the opinion of the court, Sheriff Principal Dowdalls said of what the sheriff was required to do: “We understood the respondent to accept that for [res ipsa loquitur] to apply it was necessary for the appellant to have exercised exclusive management and control over the thing which caused the injury: the weight plate. It was acknowledged that the sheriff had not made an express finding to that effect but, it was argued, such a finding had been made by necessary implication. Accordingly, it was accepted that the focus for the sheriff should have been on the question of control over the weight plate, not merely on control over the premises.”

She continued: “The starting point is that the sheriff did not address the question of control over the weight plate in his note or findings. He did not consider that it was necessary to do so.  Given the decisions to which we were referred and particularly the decision of the Inner House in McDyer v Celtic Football and Athletic Co Ltd (2000) we are satisfied that the sheriff was bound to consider and decide this question.”

The Sheriff Principal concluded on this ground: “Each case is fact specific. The appellant operated a gym which was open to members of the public who paid a membership or subscription to use the facilities, including an area for the use of free weights and a number of shoulder press machines. In our view the appellant required to have exclusive control of the weight plate for the maxim to apply. Having regard to the dicta and circumstances in McDyer, in our view it cannot be said that the appellant had exclusive control of the weight plate.”

Considering the absence of findings on the condition of the plate, she added: “Had it been open to sheriff to apply the maxim he would have been entitled to conclude that the circumstances yielded a prima facie inference of negligence which it was then for the appellant to rebut. For the reasons given by the sheriff, which rested primarily on his assessment of the evidence, we consider he would have been entitled to reach the conclusion that the appellant had failed to rebut that inference and that accordingly the appellant had been negligent.”

The appeal was therefore allowed, with decree of absolvitor granted in favour of the appellant.