Ian Heary v. Michael Phinn T/A Phinn Parts, 24 June 2013 – liability to customer for injuries sustained when climbing gate to leave breakers yard after being locked in

Sheriff Court case in which Mr Heary sought damages after suffering injury when climbing over a locked gate whilst attempting to leave a breakers yard he had been visiting.

Mr Phinn carried on a business known as Phinn Parts Auto Breakers from a yard in Dundee. Mr Heary had arrived at the yard and was directed by Mr Phinn to the part of the yard where he might find the parts he was looking for. Shortly afterwards, Mr Phinn left the yard and went home. Before leaving, Mr Phinn’s son had entered the yard and shouted to ask if anyone was there but had received no answer. When Mr Heary sought to leave the yard, he found that there was nobody else in the yard and that a communal gate, shared with four or five neighbouring businesses, was locked. He then attempted to climb over the gate to get out but fell. Mr Phinn denied locking the gate (he, along with the proprietors of the other yards, held keys to it) and it was not established who had done so.

Occupier’s Liability (Scotland) Act 1960
When considering Mr Phinn’s potential liability under the Occupier’s Liability (Scotland) Act 1960, the sheriff found that, although Mr Phinn was not the owner of the communal gate, he was an occupier in terms of the Act by reason of the control he exercised over the access. However, it was found that a gate operating normally could not be said to constitute a danger and accordingly there was no obligation on Mr Phinn under the Act.

Common Law
In contrast, it was found that, as Mr Phinn invited people on to the premises, he owed Mr Heary a duty to take reasonable care for his safety at common law. It was foreseeable that, if Mr Phinn allowed Mr Heary to be locked into the yard, he might injure himself whilst taking steps to escape. It was also foreseeable that, even if Mr Phinn did not lock the gate himself, one of the occupiers of the neighbouring yards may have done so. There was therefore a duty on Mr Phinn to take reasonable care to ensure that no one was left in the yard when he vacated it. The sheriff found that, although a check may have been carried out, given the size of the yard, the check had been inadequate. That failure to carry out an adequate check had caused Mr Heary’s injuries. However, after taking account of the fact that the incident had taken place during the day, the fact that the site was not completely isolated and that Mr Heary had decided to climb the gate (which was a significant obstacle) after waiting only 25 minutes, the sheriff found that there had been contributory negligence on the part of Mr Heary and reduced the award of damages by 50%.

 The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.


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