E v A (insurer) and S (gym, in administration)
19 June 2020
Lionel Stride represented the Claimant (instructed by Michael Hardacre at Slater & Gordon) in a High Court paraplegia case that settled at a JSM for £1.525 million. The Claimant was injured whilst using a squat rack in a ‘Free Weights’ gym when he stumbled and fell, resulting in a crush injury to his spine from the barbell that he had been lifting. There were no safety bars on the squat rack at the material time and it was the Claimant’s case that he had not been told of the need, or how, to use them. It was therefore alleged that the gym had failed to warn him of the need to use the safety bars with an induction or warning signs; and had failed to risk assess or provide health & safety training to its staff to enable an effective induction to take place.
The Claimant relied in part on three Improvement Notices that had been issued to the gym after the accident for breaches of S.2 and S.3 of the HSWA 1974. Liability remained firmly in dispute; the Defendant contended that the Claimant was an experienced user of the gym; and that it had discharged its duty by, amongst other things, providing safety bars and informing the Claimant that he should ask if unsure of how to use any lifting equipment. Further, although the full value of the claim was significantly higher (pleaded provisionally at £11.2 million), there was a ‘costs and damages’ indemnity limit on the public liability insurance policy of £2 million that would have served as a maximum cap on the amount of any judgment, although, if successful at trial, it was the Claimant’s intention to seek a non-party costs order (or suitable equivalent) against the insurer for payment of costs in excess of the indemnity limit under CPR 46.2 and S.51 of the Senior Courts Act 1981 on the basis that they were, in reality, defending the claim in their own interests (in accordance with the principles in T.G.A Chapman Ltd v Christopher  1 W.L.R 12, CA; and Palmer v Palmer  EWCA Civ 46). The insurer was also being pursued directly for a declaration of liability under S.2 of the Third Parties (Rights against Insurers) Act 2010.