Ian Heary V. Michael Phinn T/a Phinn Parts

JudgeSheriff K.J. McGowan
CourtSheriff Court
Date19 June 2013
Published date30 August 2013


Case No. PD 69/12




in the cause







Dundee, 19 June 2013

The Sheriff, having resumed consideration of the cause, grants decree for payment by the defender to the pursuer of the sum of EIGHT THOUSAND ONE HUNDRED AND EIGHTY ONE POUNDS AND THIRTY FOUR PENCE (£8181.34) Sterling including interest to date; with interest thereon at the rate of 8% per year from the date hereof until payment; finds the defender liable to the pursuer in the expenses of process; certifies Mr David Chesney, Consultant Surgeon, as a skilled witness who prepared a report for the pursuer; allows an account of expenses to be given in; and remits same, when lodged, to the Auditor of Court to tax and to report.

(Sgd.) "K J McGowan"




[1] This is a claim for damages in respect of injuries sustained by the pursuer as a result of an accident which he says was the fault of the defender.

[2] I heard evidence and submissions over two days. The witnesses were: the pursuer; his wife, Mrs Elizabeth Heary; the defender; his son, Sean Phinn; and his brother, Ronald Phinn.

[3] In the course of the submissions, I was referred to the following sources: the Occupier's Liability (Scotland) Act, 1960 ("the 1960 Act"); Wheat v E Lacon & Co Ltd [1966] AC 552; Sayers v Harlow Urban District Council [1958] 1WLR 632; Titchener v British Railways Board 1983 SLT 269; Muir v Adam Wilson & Sons 1993 GWD 32 - 2018; Murray v Edinburgh District Council 1981 SLT 253; Donoghue v Stevenson 1932 SC (HL) 31; Yorkshire Dale Steamship Company Ltd v Minister of War Transport [1942] 2 All ER 6; Hastie v The Lord Provost etc of the City of Edinburgh 1907 SC 1102; Wallace v City of Glasgow District Council 1985 SLT 23; McGlone v British Railways Board 1966 SLT 2; Dumbreck v Robert Addie & Sons (Collieries) Ltd 1928 SC 547; Tomlinson v Congleton Borough Council & Others [2004] 1 AC 46; Stevenson v Glasgow Corporation 1908 SC 1034; Glasgow Corporation v Taylor [1922] 1 AC 44; Lowe v Robertson Group Ltd, Sheriff Coutts, Elgin, March 2006 (unreported); Dawson v Page 2012 Rep LR 56; McKenzie v Craggy Island Ltd, Kemp on Damages, AM0505135; JC Handbook, Guidelines for the Assessment of General Damages in Personal Injury Cases, 11th edition, Chapter 7(N).

[4] I also considered Charlesworth & Percy on Negligence, 11th edition, 2006; Delictual Liability, Thomson, 4th edition, 2009; and Delict, Stewart, 3rd Edition, 1998.

[5] Having heard the evidence and submissions, I made the following findings in fact.

Findings in fact

[6] The defender has carried on business as Phinn Parts Auto Breakers at a yard at Perrie Street, Dundee for at least 20 years. The yard is one of several located at a small industrial estate. Entrance to the part of the industrial estate in which the pursuer's yard is located is by means of a lane which is bounded on each side by other industrial premises.

[7] At the end of the lane is a large gate ("the communal gate"). Beyond this gate is an open area which can be used by customers of the defender and the other concerns for parking vehicles ("the parking area"). Productions 5/1 and 5/2 show the communal gate in a closed position as approached from the lane, with the parking area and the defender's garage (see below) in the background.

[8] The defender is not the owner or tenant of the communal gate or the parking area. There are about six or seven other business concerns in the immediate vicinity. Four or five are, like the defender's yard, accessed through the communal gate. Another two or three are outside the communal gate and between it and the main road.

[9] The edge of the parking area opposite the communal gate is bounded by the defender's yard. The defender is the tenant of this yard. Entrance to the yard is obtained by means of an opening which is capable of being secured by a gate ("the inner gate").

[10] The communal gate can be closed and secured by means of a chain and padlock. The defender is one of about five key holders. Other keyholders include persons who operate those of the neighbouring businesses accessed through the communal gate. The communal gate is about 12 feet high and has barbed wire along the top. There is a sign adjacent to it which reads "Do Not Climb". When it is closed, it is not possible for an adult to squeeze through any gap in or under the gate.

[11] On 5 February 2011, around midday, the pursuer went to the defender's yard to source a headlight for a Ford Puma and locking bolts for a Ford Focus. The pursuer arrived at the yard having just picked up his wife's insulin prescription at a local pharmacy.

[12] The pursuer left his car at the main road, walked down the lane and entered the parking area through the communal gate, which was open.

[13] The defender and his son, Sean Phinn, were working on an engine block which was located at the opening to his yard. Also present in the vicinity were the defender's brother, Ronald Phinn and a family friend, Mitchell Purney.

[14] The pursuer had a brief conversation with the defender. He enquired whether the defender had any headlights for a Ford Puma and any wheel locking bolts for a Ford Focus.

The defender advised the pursuer he had the vehicles he was looking for. He directed the pursuer through the inner gate to the yard. There was no other conversation between the defender and the pursuer.

[15] Just inside the yard there is a garage type building tenanted by the defender which contains an office and workshop ("the garage"). The pursuer walked past the garage to locate the vehicles. The yard is covers quite a large area. The pursuer finished up at a point about 200 yards from the inner gate which could not see from where he was standing.

[16] The pursuer spent about 15 to 20 minutes looking around. During this time he saw no-one else in the yard.

[17] The businesses operated by the neighbouring yards generate a certain amount of circulation of vehicles in and out of the communal gate, which is normally left open during the working day. On the day of the pursuer's accident, there was activity at the neighbouring yards.

[18] Customers are not normally accompanied by the defender or anybody on his behalf but are instead left in the yard by themselves. The usual procedure followed by the defender when vacating the yard is to give "a shout or two". The system operated by the defender and occupiers of the neighbouring yards located inside the communal gate was one of "last out, locks up" i.e. the last person through the communal gate locks it.

[19] Shortly after midday, the defender, Sean Phinn and Ronald Phinn decided to leave the yard. Sean Phinn went about 40 feet into the yard and shouted "Is anybody there? - we are closing up" or words to that effect. Nobody replied. Mitchell Purney came out of the yard and was asked if he had seen anybody. He said there was nobody in the yard.

[20] The defender, Sean Phinn and Ronald Phinn all then left in a vehicle driven by Mitchell Purney. The defender and Sean Phinn were going to their home. The plan was that Sean Phinn would return after having had something to eat. Mitchell Purney was to return to the yard in the vehicle which he had given the others a lift in and wait for the Sean Phinn to return after his midday meal.

[21] In the meantime, the pursuer was still in the yard. He then decided to leave. He returned to the inner gate. It was open. The communal gate was closed and secured with the chain and padlock. There was no-one else in the defender's yard or the neighbouring yards.

[22] The pursuer found that he was trapped. He checked whether the gate was locked by inspecting the padlock and rattling the gate.

[23] The pursuer did not have his mobile phone on his person, having left it in his car which was parked outside the communal gate. He undertook a thorough search of the yard, including its perimeter, for about 25 minutes and determined there was no one else there. He looked in the window of the defender's office which was locked. He could not see much as it was dark.

[24] The pursuer shouted to make others aware of his presence, but no one answered him. He went up to the neighbouring yards but could see no one else. He did not know if there were any guard dogs in those yards or if and how he might exit those yards even if he had been able to climb into them. The pursuer could not get under the communal gate because of the presence of barbed wire or squeeze through any gap in it.

[25] By this time, it was cold and raining. The pursuer was anxious to get to his car to get his inhaler for his asthma and because the he believed that his wife's insulin had to be refrigerated. He decided that the only route out of the yard was by climbing over the locked gate. As he did so, he lost his balance and he fell off it, landing on both heels.

[26] As a result of his injuries, the pursuer could not move. He was in severe pain. He lay on the ground immediately outside the communal gate for some minutes.

[27] In due course, a man turned up and found the pursuer. He did not have a key and ran for help. He returned a short time later with another man who unlocked the gate. The second of the two men said that he was going into the office to telephone for an ambulance.

[28] The pursuer was conveyed to hospital. He suffered bilateral pilon fractures. After about a week he underwent an operation. He was discharged home about 3 weeks later. He suffered from a pulmonary embolism, a known complication of the injuries he had sustained. He underwent physiotherapy. He continues to have pain and restricted movement in both ankles. He has been advised he is at increased risk of osteoarthritis bilaterally as a result of his injuries. He has been left with stiff and painful ankles. He will have ongoing pain in both ankles for the rest...

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