Let the facts speak, the sequel: a further look at ‘res ipsa loquitur’ in Scotland

Hot on the heels of my last article on res ipsa loquitur, the Sheriff Appeal Court has again been asked to provide guidance on when res ipsa loquitur applies, in the case of McCormack v SportsDirect.com Fitness Limited [2025] SAC (Civ) 15.

The First-Instance Decision

Mr McCormack was injured at the Everlast Fitness Club, operated by SportsDirect.Com Fitness Limited, in Glasgow Fort on 5 November 2021. While loading a weight plate onto a shoulder press machine, his left hand was cut by a ragged metal edge on the outer rim of the plate. How or when the plate became damaged was unknown.

The Sheriff at first instance applied the maxim res ipsa loquitur, holding that the gym had failed to prove the accident happened without their negligence. Damages of £6,881.95 were awarded.

SportsDirect appealed.

 The Appeal

 SportsDirect argued that the maxim only applied where:

1. The incident suggested negligence on someone’s part; and
2. Because of exclusive management and control (of the weight plate) by them at the time or times when the negligence occurred, it can be presumed they were negligent.

It was SportsDirect’s opinion that Mr McCormack could not satisfy either of those criteria.

Mr McCormack accepted that he would be required to prove control over the plate by SportsDirect but that there was no requirement for this to be exclusive control. Mr McCormack submitted that the finding made by the Sheriff at first instance, that SportsDirect was in control of the premises, allowed control of the plate to be inferred.

Outcome

The Court determined that the Sheriff at first instance had failed to deal with the question of exclusive control of the weight plate, as he had not deemed it necessary to do so. It was the Court’s view that the Sheriff was bound to consider this question; if there was no control over the thing that caused the accident, the maxim could not apply. The Court referred to the opinion of Lord President (Roger) in McDyer v The Celtic Football and Athletic Co Ltd 2000 SC 379 –

‘That approach has been applied repeatedly in Scots law and we doubt whether its essence has been stated more succinctly than in the words of Lord Maxwell in Murray v City of Edinburgh Council at p 256: ‘The principle only applies where the incident suggests negligence on someone’s part and, because of exclusive management and control in the defenders at the time or times when the negligence occurred, it can be presumed that it was the defenders who were negligent.’

The Court went on to say that each case is fact specific. SportsDirect 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 several shoulder press machines. It was the view of the Court that SportsDirect required to have exclusive control of the weight plate (the res) for the maxim to apply. It was determined that they did not have exclusive control of the weight plate.

The Court allowed the appeal.

Summary

The decision provides important clarification on the application of res ipsa loquitur. It reaffirms the need to prove exclusive management and control over the object causing injury before the maxim can be invoked. This judgment underscores that the application of the maxim must be carefully assessed on the facts of each case. For Defenders, it offers a clear framework for contesting claims where control over the cause of injury is ambiguous or shared. Ultimately, McCormack emphasises that the facts, and control, do indeed still speak for themselves.

If you require advice or representation in defending negligence claims, particularly where complex issues such as res ipsa loquitur arise, please do not hesitate to get in touch.