21 November, 2019
The Claimant was exercising at the Claimant's gym premises when she was involved in an accident. The 71 year old was using a machine known as the "Tummy Tuck", when she alleged that suddenly and without warning, the machine toppled over and fell on her causing pain, injury and loss.
The Claimant brought a claim alleging that the Defendant was negligent and in breach of its duty to her under s.2 Occupiers Liability Act 1957.
The Defendant denied liability and maintained that the machine was not defective. The Defendant contended that it was not possible for the machine to simply fall over without any application of force by the user. Tummy Tuck machines are used worldwide and there had been no other reported instances of the machine spontaneously toppling over.
The Claimant had given a different version of events in the Particulars of Claim, the medical report, her witness statement and in her oral evidence. The Claimant was adamant at trial that she pressed a button, the machine "jumped" and fell on top of her. The pressing of the button as the trigger was mentioned for the first time at trial. The Judge noted that the Claimant had not been consistent or credible. He was not satisfied that she had proved her case and dismissed the claim.
Occupiers are not automatically liable for any injury sustained on their premises. In this instance, there was little more the Defendant could have done to have prevented this accident from occurring. The equipment was not defective, the Claimant had received an induction and had been shown how to use the equipment, and she had used the "Tummy Tuck" machine on numerous occasions without incident. Ultimately, the accident was simply due to user error and we are delighted that the Court agreed and dismissed the claim.
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