Most defendants will, sadly, on a fairly regular basis be faced with inadequate or vaguely pleaded claims; this presents a genuine difficulty in assessing liability at an early stage and making a decision whether to challenge or settle a claim.
As a case progresses, CPR Part 18 questions are a key tool in addressing any ambiguities and/or inconsistencies in a claimant’s pleaded case. These are often used to flush out elements of contributory negligence and weaknesses in a claim.
However, responses to Part 18 questions can present a potential procedural danger for defendants. In well conducted litigation, often the early investigation of liability takes place at the pre-claim stage, with a further review following receipt of particulars of claim. It is equally important to revisit those earlier investigations into liability in the light of a claimant’s Part 18 response, to identify new elements of the claim that could alter an earlier opinion.
The decision in this case provides a salutary lesson in the importance of reviewing a case strategy following receipt of a Part 18 response. The “block” which proved so central to liability could only be identified obliquely through a section of the Claimant’s Part 18 response. However, this was sufficient to allow the Court to make a finding of fact as to the cause of the Claimant’s accident that may not have been open to it on the particulars of claim alone.
In February 2008 the Claimant visited one of the Defendant’s clubs with a friend, Shonagh Withey, who acted as her spotter (a gym partner who provides help as required). Towards the end of their routine they decided to do some squats. They chose to use a “Smith” machine. This has a large frame, in front of which are two vertical metal rails. A barbell is fixed within the rails, which permit only a vertical movement.
The machine in question had a rubber block fixed in place on the left hand side, between the rail and the frame, at between hip and waist level. This block was not identified in the Claimant’s particulars of claim.
In response to the Defendant’s Part 18 request, more complete details of the accident then emerged; the Claimant’s response being:
“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.”
This was the first mention in proceedings of the rubber stopper/block; it had not been mentioned in the Claimant’s particulars of claim, which were drawn very broadly; the photograph put before the court at first instance did not identify the stopper. The court was not provided with any form of skeleton argument in advance. It was a feature of the trial at first instance that the Defendant appears to have been taken by surprise as to the evidence Mr Recorder Berkley accepted about the mechanism of injury.
During the trial itself the Recorder asked for a better photo of the actual machine in question. Following review of the Claimant’s testimony and the new photograph, the Recorder accepted the Claimant’s evidence that her injury was caused when her finger was severed by a guillotine action caused as the weights descended past the block.
At first instance, the Recorder found in favour of the Claimant, subject to contributory negligence of 25 per cent.
Lord Justice Ryder dismissed the appeal:
- To hold that the rubber block posed a risk which was not obvious and apparent to the user was well within the broad ambit of judgment afforded to a first instance judge.
- The Recorder’s finding about the inadequacy of the warning was unimpeachable. The argument that a specific warning would not have assisted the Claimant flew in the face of the evidence.
- The only basis on which it could be said that there was a misuse of the machinery was by the act of spotting. However, there was evidence which dealt with the fact that this was an accepted common practice. Accordingly it was not possible to argue that the Occupiers’ Liability Act 1957 did not apply.
- The Defendant’s witnesses were not aware of the block, but the Defendant chose not to ask for an adjournment of the trial. It was therefore not surprising that the Recorder concluded that further evidence would not assist.
- Given the Claimant’s Part 18 response, and the failure of the Defendant to request an adjournment to adduce additional evidence, it was open to the Court to find the Claimant’s pleadings to be adequate.