SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNDEE

Case No. PD 69/12

JUDGEMENT of SHERIFF K.J. McGOWAN in the cause MR IAN HEARY Pursuer against MR MICHAEL PHINN t/a PHINN PARTS Defender __________

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"

Sheriff

Note

Introduction

[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, 11^th edition, Chapter 7(N).

[4] I also considered Charlesworth & Percy on Negligence, 11^th edition, 2006; Delictual Liability, Thomson, 4th edition, 2009; and Delict, Stewart, 3^rd 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 of his life. He will not make a full recovery back to normal. He is now unable to enjoy his hobbies or golf, football and running and he is unlikely ever to be able to do so.

[29] After he was discharged from hospital, the pursuer required substantial assistance from his wife. He was effectively totally immobile. She assisted him with:

a. washing for about 1.5 hours per day, 7 days a week for about 6 months;

b. eating for about 1.5 hours per day, 7 days a week for 6 months; and

c. toileting for 2 hours per day, for the first 4 to 6 weeks and thereafter for about 1 hour per day for 20 weeks.

Submissions for pursuer

The evidence

Pursuer

[30] The pursuer was both credible and reliable. His evidence should be preferred where it conflicted with the evidence given by the defender's witnesses, particularly in relation to: presence of Mitchell Purney; gate being locked; speaking with defender; no shouting/inspection.

[31] The pursuer gave his evidence in a clear and straightforward manner. He made no attempt to embellish or exaggerate his account of the accident, which has been both clear and consistent: particularly: in cross, maintained about steps taken to alert passers by

[32] When tested, he maintained his position on the key matters of fact: decision to climb, locked gates.

Elizabeth Heary

[33] This witness spoke to the services she provided to her husband. She gave a detailed account of the impact that accident had on him as he recovered from his injuries.

[34] She gave her evidence in a clear manner and made no attempt to embellish her account.

Defender's witnesses

[35] The evidence of the defender and his witnesses is less reliable. Generally, there were inconsistencies within their evidence.

[36] Who had keys - was it Sean or Michael? Sean said he had them. Michael said he did not pass them to Sean.

[37] Role of Mitchell Purney - Sean said Mitchell Purney shouted and did visual check. The defender says Mitchell Purney was only asked if he saw anyone before they left.

[38] There were inconsistencies with the defender's evidence.

a. The defender - who was present during the pursuer's evidence - initially claimed that he never saw the pursuer, but then said the pursuer was in the office when he left.

b. In chief, the defender claimed he had never seen the pursuer before until the day of the proof. During cross, the defender accepted that the pursuer was in his yard at the time of the accident, but that he just could not remember if he spoken with him.

c. During cross, the defender acknowledged that the purpose of locking up is to prevent thieves or anyone else accessing the yard when he is not there. In his evidence, he accepted that - by not locking the gate - he had taken no steps whatsoever to protect his property. However, he claims that his son shouted to check if anyone was left in the yard. He could provide no answer as to why they would bother shouting if they intended to leave the yard open - anyone on site could simply steal/walk out when they wished.

[39] The defender's second and third witness cannot be said to be impartial or independent. They are close relatives to the defender and Sean Phinn continues to work at the accident locus. Therefore, they have an interest in this action not succeeding.

[40] In any event, their evidence is less reliable than the pursuer's. Sean Phinn gave evidence that, when carrying out a check, he went through the inner gate and walked about 40 feet down on one side. He could not see anyone. He shouted out three or four times. He waited about 5 minutes. It was normal practice for him to check, meaning he has done this on many occasions before and after accident. It would be difficult for him to recall what he did specifically on this occasion. He may simply be mistaken.

[41] Ronald Phinn could not recall who carried out the check; what was said and how long they waited.

[42] The pursuer's evidence is that he did not see or speak to any people between speaking to the defender and looking at the cars. Had Sean Phinn carried out a visual or audible check, the pursuer's presence would have been noted. The evidence of the pursuer should be preferred.

[43] Much has been made of the involvement of a non-family member, Mitchell Purney, who has not been cited by the defender to speak to his role. Had the pursuer known of his existence prior to proof, then he could have been cited.

[44] It is noted that a further witness was cited but not called as a witness and no reference made about his involvement.

[45] They all have a common interest in ensuring that their evidence is similar to discredit the pursuer.

[46] The defender may argue:

a. that the pursuer was not in the yard when the defender, Sean Phinn and Ronald Phinn were leaving the yard;

b. that the defender had performed or instructed to be performed an inspection of the yard and left the yard without locking the communal gate; and

c. that they left Mitchell Purney in the yard and that he did not have keys to the yard.

[47] This version of events is improbable, for the reasons above and:

a. On his own evidence, the pursuer must have been in the yard. No-one could answer how the pursuer would come to be lying injured at the gate unless he had been in the yard. Why climb the fence if the gate was unlocked?

b. Had a full inspection been done, the pursuer's presence would have been noted.

c. If the defender knew that neighbouring business had keys to the communal gate, he had a duty to check that someone would not be locked in?

[48] The defender claimed to have left a family friend, Mitchell Purney, in the yard when he left, in charge of site. In his evidence, the defender called him a "dogsbody" and confirmed that he "did not trust him". Mr Purney was not cited and did not give evidence here. Sean Phinn called him a "friend". Ronnie said he was "not sure" if Mr Purney had been there. Had the pursuer seen Mr Purney, then he would not have been locked in.

[49] The evidence of the pursuer and Elizabeth Heary should be accepted and the pursuer's evidence preferred where it conflicts with the defender and the defender's witnesses.

[50] The Court was invited to make the following findings in fact:

a. pursuer was at Phinn Parts Auto Breakers on 5 February 2011.

b. The pursuer was attending Phinn Parts Autobreakers to source a headlight for a Ford Puma and locking bolts for a Ford Focus.

c. The defender is the occupier of the yard and has been trading from the yard for at least 20 years.

d. The pursuer arrived at the yard having just picked up his wife's insulin prescription at a local pharmacy.

e. The pursuer entered the defender's yard through a large, open gate at approximately 12.30pm.

f. That this large gate was the only exit from the defender's yard

g. The pursuer spoke with the defender, Michael Phinn on entering the yard.

h. The pursuer enquired whether the defender had any headlights for a Ford Puma and any wheel locking bolts for a Ford Focus.

i. The defender advised the pursuer he had the vehicles he was looking for.

j. The defender directed the pursuer through a further set of smaller gates to locate the vehicles.

k. The defender therefore knew the pursuer was in his yard.

l. The defender did not advise the pursuer that the yard would be closing for lunch.

m. The defender did not advise the pursuer that the yard would be locked.

n. The defender did not advise the pursuer that he would be leaving the yard.

o. The pursuer walked approximately 200 yards from the defender, through the smaller gates, into the yard to locate the vehicles. From where he was standing he could not see the front gate

p. That the pursuer was looking at and travelling between the vehicles for a period of approximately 15 minutes, 20 minutes maximum. During this time he saw no-one else in the yard.

q. During this period, the defender, Sean Phinn and Ronald Phinn left the yard.

r. No visual inspection of the yard was undertaken by the defender, Sean Phinn or Ronald Phinn to establish whether the pursuer was still in the yard.

s. Sean Phinn did not shout.

t. The defender did not have a sign in/out book on site.

u. The pursuer returned to where he had first spoken with the defender. It took him approximately 2 to 3 minutes to walk there. The defender was not there.

v. At this time, the pursuer was the only person in the yard.

w. The large gate through which the pursuer had initially entered was locked.

x. There was no-one else in the neighbouring yards at this time.

y. The defender, Sean Phinn or Mitchell Purney locked the yard (or the defender knew other key holders may turn up and lock the fence to protect their own property)

z. The defender was in control of the gate at the time of the accident.

aa. The pursuer was trapped in the yard.

bb. The pursuer checked whether the gate was locked by inspecting the padlock and rattling the gate.

cc. The pursuer could not have climbed under the other side of the fence to escape as there was barbed wire there

dd. The pursuer did not have his mobile phone

ee. The pursuer undertook a thorough search of the yard, including its perimeter, for about 25 minutes and determined there was no one else there.

ff. It was cold and raining at this time.

gg. The pursuer looked in the window of the defender's office. The office was locked. He could not see much as it was dark and dismal.

hh. The pursuer shouted to make others aware of his presence but no one answered him.

ii. The pursuer went up the other neighbouring yards but there was no one else in those yards.

jj. The pursuer did not know if there were any guard dogs in those yards.

kk. The pursuer did not know how to exit those yards even if he had been able to climb into them

ll. The pursuer's only route out of the yard was by climbing over the locked gate.

mm. The pursuer needed to get out the yard because he had my inhalers in the car as he is asthmatic. The pursuer had insulin for his wife which he believed had to be refrigerated.

nn. The pursuer climbed the large gate.

oo. The pursuer fell off the gate, landing on both heels.

pp. The pursuer was stranded lying on the ground for approximately 10 to 15 minutes before he encountered by Mitchell Purney.

qq. The passer-by (believed to be Mitchell Purney) unlocked the gate

rr. Mitchell Purney used a key to open the communal gate.

ss. The pursuer sustained fractured ankles. Details are narrated in the medical report by David Chesney which has been agreed by both parties.

tt. The pursuer required services from his wife, which are detailed more in submissions on quantum and for sake of brevity not repeated here.

Submissions in law

[51] The pursuer's claim proceeds on the basis of breach of statutory duty and also breach of the common law duty of the defender.

Occupier's Liability

Section 2(1)

[52] The pursuer contends that the defender has failed in his duty owed to the pursuer in terms of Section 2(1) which provides that:

"The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger" (Emphasis added).

Premises include gate

[53] The defender has been in occupation of yard for a number of years, per his own evidence. The communal gate controls access to his yard.

Control

[54] On the pursuer's proposed findings in fact, the defender was in sufficient control of the gate at the time of the accident. This is demonstrated by various factors - firstly, the sign for Phinn Autobreakers on the communal gate; and second, the use of keys and the fact that, as Sean Phinn stated in evidence, the gates were locked at night to prevent theft.

[55] In Wheat v E Lacon & Co Limited 1966 AC 552 at page 57 8, Lord Denning states:

"wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an 'occupier' and the person coming lawfully there is his 'visitor': and the 'occupier' is under a duty to his 'visitor' to use reasonable care. In order to be an 'occupier' it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others." (Emphasis added)

[56] It is not necessary for the pursuer to prove that the gate was the sole property of the defender. Instead, all that the pursuer requires to show is that the defender was in control of the gate at the time of the accident. At the time of the accident the defender had a sign on the communal gate with his details displayed. This demonstrates element of control over the gate.

[57] Further, it is submitted that the defender or someone from the defender's premises locked the communal gate on their departure from the yard. This shows the requisite level of control over the gate and accordingly the defender is deemed to be the occupier of the gate.

Danger

[58] The danger was an unsupervised customer being locked in the premises with no means of safely exiting the premises.

[59] The defender knew the pursuer was on site. No supervision was given. In his own evidence, the defender acknowledged that there were other key holders and they could elect to lock up if they believed themselves to be last one out.

Omission

[60] As the defender was in control of the premises/gate, and the pursuer was a "visitor" as Lord Denning termed it, then section 2(1) applies and the defender had a duty of to exercise reasonable care towards to the pursuer to ensure that he did not suffer an injury due to any danger within the premises.

[61] The defender failed to exercise reasonable care by omitting to check for the pursuer's presence before leaving the premises, resulting in the pursuer being left on his premises with no other means of escape than to climb the fence.

[62] It would have been reasonable for the defender to have carried out an inspection before locking the gate. Had an inspection been carried out by the defender or any employee, the pursuer gave evidence that he would have left. The defender alleges an inspection was carried out - though Ronald Phinn could not recall who by, what was done, who shouted - although all that was said to have been done in close proximity to him.

[63] In cross-examination, the defender acknowledged that there was the possibility that someone was still in the yard when he left as he did not carry out the check himself.

[64] Had the pursuer heard shouting from anyone in the yard, he gave evidence that he would have gone to see the person who was shouting. He would not have been locked in the yard.

[65] Had the pursuer been advised of the closing time by the defender, he said that he would have left at the right time.

[66] By locking the gate and leaving the pursuer trapped within the premises, the defender failed in his duty to take reasonable care to ensure that the pursuer did not suffer an injury.

[67] As the gate was locked the Pursuer was left with no safe exit route from the yard. It then follows on from this that it is reasonably foreseeable that the Pursuer would be injured when attempting to leave the yard.

Common law

[68] Alternatively, the defender was in breach of his duty under common law.

Duty of care

[69] Owed by the "occupier" (the defender) to "visitor" (the pursuer): Wheat v E Lacon & Co Limited 1966 AC 552, above. Their duty, amongst others, is to perform an adequate inspection of the yard before leaving (to ensure no-one locked in) and thereafter not to lock the gate and trap the pursuer in the yard.

Breach of duty of care

[70] The defender breached the duty of care owed by him to the pursuer.

[71] The pursuer said in evidence that he spoke with the defender on entering the yard. The pursuer had been to the yard on two or three occasions before and knew who the defender was. The defender directed the pursuer through another set of gates to where the vehicles were kept. Therefore, the defender was aware that the pursuer was in his property.

[72] The pursuer said that had anyone come into the part of the yard where the vehicles were kept, the pursuer would have been there to be seen and he would have seen anyone performing a check. The pursuer did not see any person doing such a check.

[73] Further, the pursuer did not hear anyone shouting to alert him that the yard was closing. Had anyone in the defender's yard shouted to him, then he would have heard them and would have made his way out.

[74] Even if the defender's evidence that shouting was carried out is accepted, it was not a reasonable system for checking for individuals present in the yard.

[75] By failing to perform such a check, the defender breached his common law duty to the pursuer.

[76] The defender left the yard, as did the others who were with him, and one of these people locked the gate. The pursuer's evidence was that none of the other yards were occupied at the time of the accident and there was no one else around, therefore no one else could have locked the yard other than the defender or someone he had left in control of the yard and gate.

Reasonable foreseeability

[77] It is reasonably foreseeable that the consequence of locking someone in a yard is that they will attempt to escape.

[78] It is unreasonable to expect the pursuer to have waited any longer than he did for someone to return: Sayers v Harlow Urban District Council 1958 1 WLR 632.

[79] The circumstances of that case are narrated on the first page. At page 626 Lord Evershed stated:

"it is the duty of the court to balance the risk taken against the consequences of the breach of duty; in other words, as was put in the argument, to weigh the degree of inconvenience to which the plaintiff has been subjected with the risks that she was taking in order to try and do something about it. "

"I do not think it is true to say that the damage was suffered by the plaintiff in undertaking something very hazardous which, as a rational human being, she had no business to undertake".

[80] He then goes on to say:

"I think that here we have to apply the ordinary common sense tests. A woman goes to a public lavatory and finds that she is immured in it. She finds, after 10 to 15 minutes, that the obvious and proper means of attracting attention had been entirely without avail; shouting and waving through the window has produced no result at all. It is an extremely disagreeable situation in which to find oneself; and it seem to me to be asking too much of the so called reasonable man or woman to suppose that he or she would just remain inactive until her husband, or someone else, chose to come and look for her and find her".

[81] The present case is on all fours with Sayers. A duty of care had been breached and as a result the plaintiff, Mrs Sayers was trapped in a public toilet. The judges therefore concluded that it was a reasonably foreseeable consequence of being trapped that she would attempt to escape and, furthermore, that it was unreasonable to expect her to wait longer than 10-15 minutes.

[82] Here, the pursuer presents a stronger case than the one in Sayers:

a. locked in the defender's yard on a weekend afternoon.

b. waited 25 minutes prior to attempting to climb the gate.

c. He ensured there was no one else in the yard and shouted to make people aware of his presence, but no one responded to his pleas.

d. He did not have anyone waiting on him nearby who may have raised the alarm.

[83] All of these circumstances lead to the conclusion that the defender first of all owed the pursuer a duty of care to perform an adequate inspection of the yard before leaving and thereafter not to lock the gate and trap the pursuer in the yard. The defender failed in his duty and as a result it was reasonably foreseeable that the pursuer would attempt to escape by the only means available to him, which was by climbing over the gate.

Volenti

[84] It is anticipated that the defender will plead a defence of volenti non fit injuria i.e. that the pursuer voluntarily accepted the risk that he would be injured as a result of climbing the fence. It is submitted that the pursuer's conduct does not amount to an acceptance of that risk.

[85] Section 2 (3) of the 1960 Act states:

"Nothing in the foregoing provisions of this Act shall be held to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes to another a duty to show care." (Emphasis added)

[86] The key word here is willingly. It is submitted that in the context of the pursuer's evidence, he cannot be described as willingly accepting the risk that he would fall and break both of his ankles in trying to get out of the yard. His evidence is that he had no other option due to the defender's breach of duty by failing to perform an adequate check of the yard resulting in him being locked in the yard. In this case, the pursuer had no other option other than to climb the fence.

[87] On finding that the gate had been locked, the pursuer carried out a thorough check of the gate. He inspected the padlock and concluded that it had been snapped shut and could not be opened without a key. He rattled the gates to confirm that they could not be opened.

[88] He considered crawling under the gate, but concluded that the barbed wire on one side which made it impossible for him to climb under. This is evident in pursuer's Production 5/2 which was spoken to by him.

[89] The other side of the gate did not have barbed wire on it but the bottom of the gate was too low to the ground to allow the pursuer adequate space to crawl underneath it, again shown in photographs.

[90] The pursuer then searched the yard and concluded that there was nobody else there. He went over to the gates of each of the other yards and shouted to alert anyone around to his presence. Nobody responded to his cries for help.

[91] The pursuer could not see a phone within the office, therefore there was no reason for the pursuer to enter into the shed/office. Further, the office building looked unsafe and was dark and the Pursuer was concerned that he may suffer an injury if he went in there. On that basis he was entitled not to go in.

[92] The pursuer did not have his mobile telephone on him therefore was unable to phone anyone to raise the alarm that he was trapped.

[93] The pursuer carried on shouting for around 25 minutes after realising he was trapped in the yard.

[94] The pursuer urgently required to get home. Before attending the yard, he had been to the chemist to pick up his wife's prescription for insulin for her diabetes. The insulin has a short shelf life and requires to be refrigerated. Therefore the pursuer required to get out of the yard to get home with the insulin.

[95] Further, the pursuer suffers from asthma and his inhalers were in the car. It was November which meant that it was particularly cold weather that day and it had begun to rain.

[96] In light of all of the above, the pursuer was entitled to take the only option available to him and climb over the gate to get out of the yard. He was not willingly accepting risk - it was the final option having exhausted all other possibilities.

[97] This can be contrasted with the facts in Titchener v British Railways Board 1983 SLT 269. another case where volenti was upheld.

[98] In that case, at page 272, Lord Hunter said:

"On her own showing she fully appreciated the risks of going near or over the railway line. She knew that trains ran along the line and that it was for that reason dangerous to cross the line. It was obvious, on her own admission, where the railway property was, and she knew that she was trespassing on it. It was plain from her evidence that she just accepted the risk. In her own words: 'It was just a chance I took'. In the circumstances I am of the opinion that the case is a strong one for sustaining the defence under Section 2(3) and that the Lord Ordinary was well entitled to hold the defence established on the evidence."

[99] At page 273, Lord Avonside said:

"The appellant candidly admitted that she knew of the danger. Before crossing a track she looked each way to see if a train was coming. She took "a chance". She agreed that she could have gone to the brickworks in safety through the underpass of the bridge but the shortcut was more convenient. In the circumstance the Lord Ordinary was, in my opinion, entitled to hold that the appellant was volens and it cannot be said that he was plainly wrong to do so."

[100] The present case can be distinguished from the case of Titchener. The plaintiff had willingly accepted the risk of the danger in that case. The pursuer in this case did not willingly accept the risk of injury. He had no option other than to climb over the gate. He had exhausted all other options. There was no "shortcut" or safer route as with Titchener.

[101] In light of this, he took the reasonable decision to climb over the gate. He thought he could achieve this safely. Therefore the pursuer did not willingly accept the risk that he would be injured as a result of climbing the fence and therefore accordingly the defence of volenti should not be upheld in this case.

contributory negligence

[102] The primary submission is that there should be no finding of contributory negligence. As far as the pursuer was concerned, the only course of action open to him was to climb over the gate to get out of the yard. If the pursuer's evidence is accepted, there is little to support a finding of negligence against him. The defender negligently failed to check the yard. If a proper search had been carried out, the pursuer would have been seen and he would have heard shouting. The defender then allowed the gate to be locked, trapping the pursuer in the yard. The pursuer therefore took the only course of action available to him and climbed the fence. He should not be penalised for this.

[103] If there was to be a finding of contributory negligence, the pursuer should not be considered to have contributed to the events to any greater extent than 25%.

[104] I refer to Sayers in support of this, where the plaintiff was found to be 25% to blame. At page 630,Lord Evershed said:

"In these matters the apportionment must largely be a question of, I will not say hazard, but at any rate of doing the best one can in fractions; applying myself to it in that way and not desiring to do more than indicate that the plaintiff was, as I think, in some degree careless and in some degree, therefore blameworthy, I would apportion the matter as to three-fourths liability to the defendants and one fourth to her."

[105] Sayers and this case are on all fours. Applying the ordinary common sense test applied by Lord Evershed, it is clear that as the pursuer had exhausted all other possible means of escape, it would have been unreasonable to expect him to simply remain in the yard inactive until someone came to look for him. He therefore took the only option available to him and climbed the gate.

[106] In Sayers, it was concluded that it was unreasonable to expect the plaintiff to remain inactive in the toilet until someone came to find her, notwithstanding the fact that her husband knew where she was and most likely would have come to try and find her. In the present case, given that it was a Saturday and the pursuer did not know if anyone would return to the yard he was entitled to climb the fence in order to escape.

[107] If it is held that the pursuer was to a degree careless in his actions, it is submitted that the approach in Sayers should be followed and he should not be found to be more than 25% to blame.

Quantum

Solatium

[108] The pursuer suffered bilateral pilon fractures. He has been undergoing physiotherapy but 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 of his life. He will not make a full recovery back to normal. He has been unable to enjoy his hobbies or golf, football and running and he is unlikely to be ever be able to do so. He also suffered from a pulmonary embolism which is a known complication of the injuries he suffered.

[109] Reference is made to Judicial Studies Board Guidelines, JSB -069 (c) Moderate which relates to:

"Fractures, ligamentous tears and the like which give rise to less serious disabilities such as difficulty walking on uneven ground, difficulty standing or walking for long periods of time, awkwardness on stairs, irritation from metal plates and residual scarring. There may also be a risk of osteoarthritis."

[110] The awards within this bracket range from the lower end at £9800 to £19000. This is for one ankle only. It is submitted that the pursuer falls to the higher end of this bracket.

[111] In Muir v Adam Wilson and Sons Ltd 1993 GWD 32-2018, the pursuer fell from scaffolding and landed on his left ankle. He sustained disorganisation of the joint, a severe fracture to his left heel and bruising to his right heel. His left ankle and foot had become permanently swollen, causing him difficulty walking on uneven surfaces. No future improvement was likely and he was developing arthritis in the foot. He was awarded £5000, which, taking into account inflation, was equivalent to £8650.

[112] That award was on the basis of injury to one ankle only. Therefore, the value of the pursuer's claim in the present case would be significantly higher.

[113] The Court was invited to award £11,500 in respect of his injuries, together with interest at 8% from the date of accident to today's date (being £2,089.53 = total £13,589.53)

Services

[114] The pursuer required substantial assistance from his wife following the accident, namely:

Washing for 1.5 hours per day, 7 days a week for 6 months 273 hours

Feeding for 1.5 hours per day, 7 days for 6 months 273 hours

Toileting for 2 hours per day, for the first 4 to 6 weeks 84 hours

After six weeks, approximately 1 hour per day for 20 weeks 140 hours

Total 770 hours

[115] The minimum wage in 2011 was £6.08 per hour in 2011. Reduced by 25% for unpaid work, would be £4.50.

[116] Applying a broad brush approach, this head of claim is £3,465.00, plus interest of £314.41 = £4,093.8

Motion

[117] Court invited to grant decree for

Solatium £11,500.00

Interest 2,089.53

Services 3,465.00

Interest 314.41

Total £17,368.94

[118] To that should be added interest at 8% from the date of decree. Expenses should follow success and Mr Chesney should be certified as a necessary expert for the pursuer.

Submissions for defender

Summary of Evidence

[119] The pursuer has led evidence relative to the factual circumstances that gave rise to his fall on 5 February 2011. The pursuer alleges that he fell whilst attempting to scale a fence in the vicinity of the defender's premises. The accident happened at or around 12:35pm. The significant factual differences between the pursuer's and defender's evidence are restricted to a handful of issues, namely:

a. Firstly, whether the defender is in law the occupier of the communal gate which the pursuer alleges was locked at the time of his accident.

b. Secondly, whether the defender or one of his employees locked the communal gate.

c. Thirdly, whether on leaving his premises, any enquiry was made on the part of the defender to see if any customers were still present within his premises.

Was the defender an occupier?

[120] In respect of the former point, the defender said that he does not consider himself to be the owner of the communal gate, or inter alia, the fence from which the pursuer alleges that he fell. Critically, the defender's evidence in this regard is that both the relevant section of fencing and in particular the communal gate lie outwith the area of which the defender considers himself to be a commercial tenant in terms of a common law lease between himself and Derek Balfour. The communal gate is known to the defender only as a common access, through which he passes in order to access the inner gate to his own property.

[121] The defender's evidence is that the communal gate services a number of neighbouring commercial properties, and he does not exercise exclusive control of it. Further, the defender's evidence was that to his knowledge there are a possible five keys that exist which could be used to lock the common access gate, only one of which is within his control. It was his evidence that he does not exercise exclusive control of the communal gate; that he does not regularly close it during the working day; that he does not regularly lock it during the working day; that he has never contributed financially towards the upkeep of it; and that he was not responsible for painting the words "do not climb" on its pillars.

[122] A joint minute of admissions has been lodged, in terms of which the report lodged by the defender's expert witness, Ms Farmer of Landownership Scotland has been agreed and admitted to be true. Her conclusion is that there is no evidence of any deed identifying the defender as the owner of the communal gate, nor identifying his landlord as being the owner of it, nor indicative of the imposition of any title servitude or burden upon the defender or his landlord to maintain it.

[123] The relevant conclusion of Miss Farmer's report is noted in the penultimate paragraph commencing at the bottom of page 2 of 3 ending on page 3 of 3. Miss Farmer's conclusion is that there is no indication from the deeds reviewed by her that the defender is the owner of the communal gate or that his landlord, Derek Balfour, is the owner of it, nor that there is any share of liability for maintenance of the gate upon either of them.

Did the defender or one of his employees lock the communal gate?

[124] The pursuer avers that it is his belief that the defender of one of his employees locked the common access gate. On this point, we heard no evidence from the pursuer to substantiate this bald averment. For the defender's part his evidence was firstly, that he is a sole trader and has no employees, thus negating the possibility of an employee having locked the common access gate. Secondly, the defender personally denies locking the common access gate on the date in question, it being his evidence that he rarely locks or indeed closes it during the day, and that when he left it was open and unlocked. We also heard evidence from the defender, and his son, Sean Phinn, to the effect that when they left the defender's premises, their key to the lock was in their possession.

[125] In support of the defender's position regarding the actions taken by him on leaving the accident locus on the day in question, we also heard evidence from Sean Phinn and Ronald Phinn who confirmed having been at the locus with the defender when he exited through the common access gate, and who confirmed that they witnessed the defender's leaving without closing or locking it behind him.

On leaving the premises, was enquiry made to see if any customers were still present within them?

[126] The parties offer contradicting accounts on this point. It is the defender's evidence that an acquaintance, Mitchell Purney, was present at the locus on the date in question and that he asked Mr Purney to shout to anyone who might still be within the defender's premises that the owner was leaving and that they should do likewise. Again, that account is supported by Sean and Ronald Phinn. It is the pursuer's evidence that he heard no such shouting. It was also the evidence of Sean Phinn, that he carried out a visual check of the yard and could not see anybody. He also speaks to having shouted that the party were leaving, and that no response was given.

Discussion

[127] Where there is a dispute over the version of events, or on the issue of ownership of the common access gate, the defender's position should be preferred over that of the pursuer. In particular, in respect of the issue of whether or not the defender locked the common access gate, his evidence that he did not is corroborated by his witnesses who confirm witnessing his having left the premises without locking it. It is of course for the pursuer to prove his case, and he has led no evidence whatsoever to substantiate his belief that the defender or one of his employees locked the common access gate. The evidence heard and produced is supportive of a presumption that the defender did not lock the common access gate.

The 1960 Act: occupier

[128] In defending this action, it is the defender's position that he has no responsibility for the common access gate, and it in respect of that preliminary issue that I should first like to address your lordship.

[129] Section s 1(1) of the 1960 Act provides:

"Variation of rules of common law as to duty of care owed by occupiers

...The provisions of the next following section of this Act shall have effect, in place of the rules of the common law, for the purpose of determining the care which a person occupying or having control of land or other premises (in this Act referred to as an 'occupier of premises') is required, by reason of such occupation or control, to show towards persons entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which he is in law responsible."

[130] So far as the Act is concerned, an occupier is defined as a person occupying or having control of land or other premises. The test is possession and control and will be a matter of fact in each case.

[131] So far as possession is concerned, the evidence of both the defender and Ms Farmer is to the combined effect that the defender is a commercial tenant subject to a common law lease between himself and Derek Balfour and that no evidence has been located further to a rigorous title enquiry indicating any degree of possession by the defender of the communal gate.

[132] The more substantial issue, it would appear, is one of control. In this respect, it is the defender's evidence as commented upon, that he does not exercise exclusive control over the common access gate.

[133] In support of the general proposition that occupation equals possession plus control, reference is made to Murray v Edinburgh District Council 1981 SLT 253. The facts were that the pursuer was a home help and was injured when a wooden panel containing a ventilator fell onto her wrist, when she was working in a council house tenanted by an individual. In that case, the case raised against the council under Section 2(1) of the 1960 Act failed as it was not averred that the defenders were in occupation and control.

[134] Lord Maxwell's comments at page [255], although relative to the issue of the parties' pleadings in that particular case, do offer some assistance here:

"In my opinion, the case under Section 2(1) of the Act is irrelevant and is based on a mis-conception of the purpose of that sub-section. The sub-section is as follows:- [His Lordship quoted the sub-section and continued:] The sub-section therefore only applies to the situation where it is sought to found on a breach of duty owed by a person by reason of his occupation or control of premises. The short answer to the case on this sub-section is that it is nowhere averred that the defenders were at the time of the accident or indeed at any other time, in occupation or control of the premises. Indeed, it appears from the pursuers own averments that the defenders in fact were not in occupation or control at the time of the accident. It is, I think, clear on authority that a person is only in occupation or control for these purposes, if he is in a position in law to say who shall and who shall not come on the premises."

[135] Lord Maxwell goes on to note at the foot of the same page,

"It is, I think, normally at least the case that a person will not be an occupier or controller for these purposes unless he is in occupation or control in the common law sense at the time of the accident. Perhaps that could not be safely stated as an absolute rule, but in a case under Section 2(1) the defenders certainly must have been and must be averred to have been an occupier or controller at some time....... in any event, in a case under Section 2(1), the duties founded on must be duties imposed by reason of the occupation and control".

[136] It is critical to the pursuer's case that he prove that the defender was the occupier of the communal gate, such occupation being a combination of possession and control. The pursuer has not led any evidence to counter that of Ms Farmer that the defender does not own the common access gate. The defender's position in respect of control of the common access gate is that a serves a communal area, and whilst he has over the course of time acquired a key to the common access gate, that he does not have the exclusive power to exclude persons from entering thereon. It is submitted that the pursuer has failed to lead any evidence to prove that the defender was the occupier of the communal gate, or the relevant section of fencing from which he alleges that he fell, and accordingly that any purported duty derived from the defender's imagined occupation of either is non-existent.

Common Law Duty

[137] This must be considered in stages. For there to be liability at common law, there must be a duty of care, a breach of the defender's duties and there must be loss caused by the breach. Causation will be addressed more fully in relation to the pursuer's statutory case.

[138] In considering whether or not a duty of care is owed by the defender to the pursuer and whether or not there has been breach of that duty, this has been widely considered in the celebrated case of Donoghue v Stevenson. The duty of care owed by the defender to the pursuer is dependent upon what the defender should reasonably have foreseen through his acts or omissions would cause harm to the pursuer.

[139] Even if the pursuer were in a position to prove that the defender was the occupier of the common access gate and that he locked it, it was still not reasonably foreseeable that the existence of a locked gate in the vicinity of the defender's premises would cause harm to the pursuer.

[140] The defender said that the communal gate had been in place for some twenty years and that he was unaware of its having been responsible for any prior accidents. The communal gate and the relevant section of fencing from which the pursuer alleges he fell only posed a danger if someone recklessly attempted to scale them. It was not reasonably foreseeable that the pursuer would act in such a reckless and foolish manner. The defender owed the pursuer no duty of care to protect him from his own foolish and reckless actions.

[141] If there was a duty on the defender to protect against the pursuer's foolish and reckless actions on the day of his fall, that there was been no breach of duty. Even if the common access gate were locked by the defender, it would be not be negligent, unjustifiable or wrongful to have done so.

[142] It is clear that the cause of the pursuer's loss was not the presence of a locked gate (if indeed, one existed), but the pursuer's foolish and unreasonable decision thereafter to attempt to scale the fence. I will refer your Lordship later on to the cases of Yorkshire Dale Steamship Co Ltd and The Minister of War Transport and Hastie -v- The Lord Provost, Magistrates and Town Council of the City of Edinburgh relative to my submission regarding the defender's alleged breach of their statutory duties. At this stage, it need only be said that the proximate cause of the pursuer's loss must be considered. The proximate cause of this accident was not the presence of a locked gate or any action on the part of the defender, but the pursuer's unreasonable decision to attempt to scale the fencing.

[143] It is submitted that the defender has not breached any common law duty of care towards the pursuer and, even if the defender has breached a common law duty care to the pursuer, which is denied, this breach has not been the cause of the pursuer's loss.

1960 Act: breach of duty

[144] The pursuer alleges that the defender has breached his statutory duty to the pursuer under the 1960 Act.

[145] Section 2 provides:

"(1) The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except insofar as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that the person will not suffer injury or damage by reason of any such danger.

.....

(3) Nothing in the foregoing provisions of this Act shall be held to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes to another a duty to show care."

[146] The duty incumbent on the occupier can be broken into two heads:-

a. a requirement for the presence of a danger on the occupiers' premises; and

b. that the occupier has not taken reasonable care to mollify that danger

Did the locked gate/ section of fencing constitute a "danger"?

[147] The extensive caselaw on the subject of occupiers' liability mostly concerns the consideration of the reasonable steps incumbent upon the occupier of the premises. Very little of it has concerned what constitutes a danger under the Act.

[148] An impression as to what constitutes a danger from the facts which gave rise to the presence of a danger in following cases.

a. Wallace: a fairly large hole in the back court of a tenement flat;

b. Titchener: a busy railway line;

c. McGlone: an electricity transformer;

d. Dumbreck: heavy haulage machinery;

e. Hastie: an artificial pond;

f. Tomlinson: was a lake in a country park;

g. Stephenson: the River Kelvin; and

h. Taylor: poisonous berries in a botanical garden.

[149] Whether something is a danger will depend on the circumstances at the time. In Dumbreck v Addie & Sons Collieries 1928 SC 547, at page 552, the Lord President distinguished between:

"(1) sources of danger arising from physical features on the ground whether natural or artificial - such as a precipice or an excavation, natural water or artificial pond, and (2) sources of danger arising from mechanical and similar contrivances - such as the haulage system in the present case."

[150] This suggests that the dangers anticipated by the 1960 fall into two categories, the first of which being physical features, such as fast flowing rivers or precipices over cliff edges, or such like. The second category appears only to anticipate items brought onto the land by the occupier, such as mechanical or similar contrivances which, by their very presence constitute a danger.

[151] Neither the locked gate in the present case nor the fencing could be considered a danger. These stand in contrast to the poisonous berries and fast flowing rivers mentioned in the case law.

[152] On a common sense interpretation of what is a danger, one would not naturally think of a gate or fencing. On the contrary, gates usually form safe access points through fences often designed to protect the public from dangers. The pursuer's case would be strengthened if the case was predicated upon the gate or fencing being in a state of disrepair, such that it was dangerous, but that is not what is being pled. What is being pled is that the gate was in itself dangerous simply by virtue of its existence on the defender's premises in an allegedly locked state. It is submitted that neither the gate nor the fencing were dangers and to the extent that either of them were dangers, they were only rendered so if when someone chose to try and scale them. Under no other circumstances could a simple well maintained gate or fence be considered a danger.

[153] In Lowe -v- Robertson Group Limited March 2006, unreported (referred to in the Simpson & Marwick Information Bulletin, May 2006) the pursuer crossed a strip of amenity of ground in Elgin. The amenity ground was a former children's play area, the swings, roundabout and seesaw having been removed some six years prior to the pursuer's accident. Two hollow shapes surrounded by sawn wooden legs, one boat shaped and the other round, had been left in the amenity ground. The boat shaped feature was about a foot high at the stern and eighteen inches high at the prow. The pursuer crossed the strip of amenity ground in the dark with one of her friends at about 6 pm in November 2003. Whilst doing so, she tripped over the boat shaped feature and fell to her injury. An action was raised against the occupiers of the land, based on a breach their statutory duties under the 1960 Act.

[154] At page 33, the Sheriff said:

"it is not in my opinion reasonable to guard people against tripping over such an obvious and permanent structure. It only became a risk at night when it might not be seen. It may be dark for half of any year, but that is a time when it is reasonable to expect few people will use the amenity area and that those who do would provide their own means of seeing where they are going or would proceed with particular care. In my view a risk of walking into a structure that cannot be seen because it is dark, is so obvious that it is not reasonable to expect an occupier to protect people who choose to take that risk. In my view there was no duty to remove the structure when the metal play equipment was removed. The boat is no more of a risk now than it was when there was more to play on. There was no duty to fence the structure. There was no duty to close the area to the public at night."

[155] Submitted that the alleged danger in that case was no more or less of a danger than the gate or fencing in the present case. The alleged dangers could only be considered such through the extraordinary risks taken on the part of the pursuers in each case. In Lowe, for venturing onto the land during the hours or darkness without means of illumination, and in the present case for electing to scale the gated fence. The risk of falling from a tall gated fence, as with the alleged hazard in Lowe, is so obvious that it is not reasonable to expect an occupier to protect people who choose to take that risk. As such, the Court cannot hold that the defender was is in breach of his statutory duties, as there was no obligation to take any reasonable steps if there was no danger.

[156] In Dawson v Page 2012 Rep. L.R. 56, a delivery driver sought damages from the owner of a cottage in terms of the 1960 Act in respect of an accident when he slipped and fell while delivering a parcel to the cottage. The parcel had not been ordered by the owner. The cottage was unoccupied as the owner was having building work carried out to it, and the pursuer had tried unsuccessfully to deliver the parcel on two previous occasions. He was aware from his previous visits that the garden had obstructions in it and was muddy, and that the workmen had laid down planks to allow access to the door. He delivered the parcel and stepped onto a plank to walk back to his car. As he did so he slipped and fell, sustaining an injury as a result. He gave evidence that the planks had a wet, greasy or slippery appearance, but after proof the Lord Ordinary held that the planks were no different from any other wet planks, and that their condition was clearly visible to the pursuer. The pursuer argued that the owner had liability as the wet planks constituted a danger on the premises, and she had taken no steps to close off access or to put up any warning sign as to the existence of dangers. The defender argued, inter alia, that any notice should have been put up by the contractor, and that as the parcel had not been ordered by her she had no duty to take precautions in respect of someone delivering it. She argued that if she was liable a finding of contributory negligence ought to be made.

[157] It was held in that case that the plank did not constitute a danger, as if it was slippery its slipperiness was obvious for all to see. Further, it was held that there was no hidden danger, nor anything to disguise any hazard from the pursuer. At paragraph 27, Lord Glennie observed:

"...That certain obstructions, if apparent, may not constitute a danger at all in certain conditions was made clear by Diplock LJ... in Wheat .... In that case, the deceased fell when he descended an unlit staircase from his room in a public house at night. The handrail on the staircase terminated before the bottom of the steps, and, on the judge's findings, this caused or contributed to his fall. In the Court of Appeal, in the context of discussing what measures should have been taken to guard against any such danger, Diplock LJ considered the question of whether the staircase with its foreshortened handrail presented a danger at all. At ... p.371 he said this:

'... the danger presented by the staircase in the present case, such as it was, was apparent. It was, indeed, as the judge held, non-existent in daylight or when the electric light bulb for which they had installed the necessary fitment was on'.

Moving away from the particular circumstances of Wheat..., that passage tends to suggest that something which is not inherently dangerous in itself, which is in full view of a person likely to come across it, and whose characteristics are all apparent to such a person, is not likely to constitute a danger against which precautions need be taken. The danger is, in those circumstances, "non-existent".

Diplock LJ went on, at pp.371-372, to say that:

'... The premature termination of the handrail involved risk of injury to a person using it only if four conditions were fulfilled, videlicet: (1) he was unfamiliar with the staircase; (2) he went down it at a time of darkness or semi-darkness; (3) he did not switch on the light; and (4) he did not make sure that his advancing foot was firmly planted at a lower level before transferring his weight to it. All four of these conditions depend upon the voluntary act of the user of the staircase; that all four might be fulfilled was foreseeable as a possibility, but Lord Atkin's aphorism must not mislead us into treating "foreseeability" as a shibboleth distinguishing events against which there is a legal liability to take precautions from events against which no precautions need to be taken. My neighbour does not enlarge my duty to care for his safety by neglecting it himself.'

The concluding sentence of that passage (and by inference the whole of it) was cited with approval in the House of Lords by Viscount Dilhorne at p.576. As he put it: 'I do not myself consider that this staircase was a dangerous staircase for someone to use who was taking proper care for his own safety.'

The fact that a person using the premises might not take sufficient care for his safety cannot make a danger of something that is not otherwise dangerous."

[28] Applying that to the circumstances of the present case, all that happened was that the pursuer slipped on a plank. In so far as it was slippery because it was wet, its slipperiness was obvious for all to see; and, indeed, the pursuer had not only stepped onto it several times over a period of a few days but had even noticed, before stepping onto it, that it looked slippery. There was no hidden danger, nor anything to disguise any hazard from the pursuer. It was not dark. Any risk associated with using it as a pathway was there for all to see. The pursuer could have avoided stepping on to it. In short, there was nothing to make the plank a danger against which the defender should have taken precautions.

[29] But if it did constitute a danger, what precautions should the defender have been expected to take? Counsel for the pursuer suggested that the degree of care required might depend to some extent upon whether the pursuer was invited onto the premises, or at least upon whether his attendance was anticipated by the defender...Even in a case where the defender did not invite the pursuer onto the premises, or where she was unaware that he or someone else would come onto the premises to deliver something, there should have been a fence and a gate to keep people off the site; or, at the very least, there should have been a notice at the entrance to the site warning of the need to take care when walking around.

[30] While I can accept that the requirement to take reasonable care may be informed by the likelihood of people coming onto the premises and being exposed to the danger, I do not think that that helps the pursuer in the present case. I reject the submission that steps should have been taken to exclude the pursuer, or others, from the site. An occupier is only required to take reasonable care. In addition to the likelihood of people coming onto the premises, what is reasonable will depend upon, among other things, the seriousness of the risk posed by the danger on the premises. The question of what precautions require to be taken requires to be decided in the light of common sense having regard to all the circumstances: McGlone v British Railways Board, per Lord Pearce at 1966 S.C. (H.L.), p.17; 1966 S.L.T., p.10. If the danger was posed by a piece of machinery with moving parts, or was a danger of serious injury or death, then it might well be that the steps required of an occupier would involve putting up some barrier to entry to the site, or fencing off the machinery, even if the danger was easily avoided by the exercise of ordinary care by a person entering on the premises. But, in the present case, not only was the danger easily avoided by the exercise of ordinary care, but the risks, if any, posed by the danger were small. At the worst, a person might trip or slip on a plank or some uneven surface. In such circumstances, it would clearly be sufficient for the occupier to put up a notice warning of the danger and emphasising the need to take care. But, if the hazard is apparent, what would be achieved by such a notice? Here, any danger posed by the plank walkway was obvious. Wet planks may be slippery. A notice is not required to point that out. Such dangers, if they be dangers, send out their own warning. The pursuer observed that the plank looked slippery. What more would a notice have told him? Accordingly, I reject the submission that the defender was required, in the exercise of any duty under the Act to take reasonable care, to exclude people from the site or to put up a notice warning of whatever danger was posed by the plank walkway."

[158] That reasoning should be followed in the present case, insomuch as Lord Glennie observes that obstructions, if apparent, may not constitute a danger at all in certain conditions. In the present case, as in Dawson, there was no hidden danger or anything to disguise it from the pursuer. In short, there was nothing to make the gated fence a danger against which the defender should have taken precautions. It is submitted that the approach taken by Lord Glennie should be followed in this case, insomuch as what is reasonable will depend on, among other things, the seriousness of the risk posed by the danger on the premises. The question of what precautions require to be taken, require to be decided in light of commonsense having regard to all the circumstances. When regard is had to that approach, it is clear that the risk posed by the gated fence was minimal, and as Lord Glennie in my submission rightly observes, and aptly summarises, the fact that a person using the premises might not take sufficient care for his safety cannot make a danger of something that is not otherwise dangerous.

Reasonableness

[159] If the gated fence did constitute a danger, the defender had taken all reasonable steps to mollify that "danger". What is said in relation to causation (the proximate cause of the accident) and the exclusion of liability from the statutory duty under Section 2(3) of the 1960 Act is repeated and adopted. When considering what reasonable steps should be taken to mollify the danger posed by the gated fence (if it can be considered a danger) regard can to the extensive caselaw.

[160] In the case of Wallace -v- City of Glasgow District Council 1985 SLT 23 the case concerned an alleged breach of the 1960 act by failing to take reasonable steps to prevent persons from stepping into a hole on the occupiers' premises. On appeal to the Inner House, the Lord Justice Clerk at page 24 said:

"In our view these terms clearly set out that the standard of care is one of reasonable care in all the circumstances and desiderates that the danger is something which arises from the state of the premises or from something which the occupier did or failed to do. There is no suggestion that the duty simply arises from the fact of occupancy and clearly on the standard of reasonable care in all the circumstances, the pursuer has to aver and prove that the danger was one of which the occupier knew or ought to have been aware and why, and what steps were open to the occupier but not taken by him to remove the danger before the accident occurred."

[161] In the present case, the pursuer alleges that be believes that the defender locked the common access gate and that, save from scaling the gated fence, he was otherwise without means of removing himself from the property. The defender's submission is that there were a number of steps the pursuer could have taken to expedite his safe exit from the property, but that he failed to do so.

Volenti non fit injuria/Proximate cause

[162] In Titchener -v- British Railways Board 1984 SLT 192, the matter concerned injuries sustained by a teenager who was struck by a train when crossing a busy railway line. The action was based on a supposed breach of statutory duty under the 1960 Act. It should be noted that the defender had been assoilzied at first instance and a reclaiming motion was refused. On appeal to the House of Lords, Lord Halesham at page 193 said:

"on this analysis of the facts it is possible to formulate the result either by saying that, at the critical moment, that is when the appellant crossed the line, the respondent owed no duty to the appellant or that the duty they owed to the appellant had been discharged by the time she crossed the boundary fence, or that the accident was not caused by any breach of duty on the part of the respondent board, or alternatively that, having assumed the risk involved, the respondent board was covered by the doctrine volenti non fit injuria".

[163] This neatly encapsulates the problems that the pursuer has in the instant case. As soon as he decided to scale the gated fence, either there was no duty owed to him or the duty had been discharged by the time he had commenced his climb.

[164] At page 195, Lord Fraser of Tullybelton (concurring with Lord Halesham) said:

"In the circumstances of this case, and in the question with this appellant, I have reached the opinion that the Lord Ordinary was well entitled to hold, as he did, that the respondents owed no duty to her to do more than they in fact did to maintain the fence along the line. I reached that view primarily because the appellant admitted that she was fully aware that the line existed, that there was danger in walking across it or along it, that she ought to have kept a look out for trains, and that she had done so when crossing the line on previous occasions."

[165] It is submitted that, in the present case, the pursuer took an obvious and unreasonable risk in scaling the gate. As result of this, either the pursuer was owed no duty of care or the duty of care had been overcome.

[166] Whilst the risk of climbing a gated fence is obvious, nevertheless the pursuer's attention ought to have been drawn to the danger involved in climbing the gate, through its being painted with a warning indicating that persons should not attempt to climb it. It was the defender's evidence that this warning was present on the day of the accident.

[167] Further, the defender's evidence was that there were a number of methods by which the pursuer could safely have extricated himself from the premises in the event that the gate was locked.

[168] He could have used the telephone in the defender's office. Parties are in dispute as to whether the office accessible or not.

[169] He could have sought out neighbouring proprietors to borrow their keys. Again, whilst the defender's evidence is that neighbouring proprietors could have provided assistance, the pursuer's evidence is contradictory.

[170] He could simply have waited longer than 25 minutes for help to arrive. The pursuer did not do so. In not doing so, the pursuer can be considered to have acted volenti non fit injuria. In Titchener, Lord Fraser of Tullybelton page 196 said:

"section 2(3) merely puts in words the principle volenti non fit injuria. That principle is perhaps less often relied upon in industrial accident cases at the present time than formerly, but so far as cases under the 1960 Act are concerned, the principle is expressly stated in Section 2(3) and there is no room for an argument that it is out of date or discredited. If the Lord Ordinary was entitled to sustain this defence, the result would be that, whether the respondents would otherwise have been in breach of their duty to the appellant or not, the appellant had exempted them from any obligation towards her.......on this matter I am of the opinion, in agreement with Lord Hunter, that the Lord Ordinary was well founded in sustaining this defence. The reasons for doing so are in the main the same as the reasons for holding that the respondents were not in breach of their duty".

[171] Similarly, in McGlone -v- British Railways Board 1966 SLT 2 a young boy accessed the defenders' premises and was electrocuted when climbing an electricity transformer. At page 8, Lord Guthrie said:

"the test of reasonableness involves the consideration of the problem from the point of view of the occupier as well as of the person entering on the premises".

[172] At page 10, he said:

"I do not think that an occupier is bound to do more than fulfill the statutory duty. It would put occupiers in an impossible position if, having provided adequate protection they then had to weigh possible further reduction of risks of accidents against the trouble and expense of taking further precautions. An occupier must do what he is bound to do, but he is not in fault in failing to do more, however easy it might have been to do that".

[173] It is submitted here that the defender had taken all reasonable steps to satisfy the terms of his statutory duty, assuming there was a danger. The balance must be struck between the reasonable steps required from the point of view of the occupier as well as those who may use the occupier's premises.

[174] Finally, it is submitted that the proximate cause of the pursuer's injuries is not the existence of the gated fence, but the pursuer's own unreasonable actions.

[175] Yorkshire Dales Steamship Co Ltd v the Minister of War Transport (1942) 1 AC 691, concerned damage to a ship commandeered by the Minister of War Transport during wartime. The Privy Council said that the proximate cause for loss of the ship was not necessarily the one which operates last, but is the effective and predominant cause, selected from among the co-operating causes. This choice of the real or efficient cause from out of the whole complex of the facts must be made by applying common sense standards.

[176] The proximate cause of the pursuer's injury in this case was an unreasonable course of action. Hastie v Magistrates of Edinburgh 1907 SLT 15, case concerned a young boy who died when he fell into Inverleith Pond in Edinburgh. The deceased's father argued that the pond ought to have been fenced and that the defenders ought to have provided employees to prevent people from falling into the pond. At page 1105, the Lord President said:

"I do not think it expedient, in such a case as this, to lay down in general terms what the precise duties which lie on persons who, like the Magistrates here, have the care of public places; but the existence of this so called negligence which is averred here, would in my humble judgement, prevent the existence of artificial water at all. I think the Learned Counsel commented too much on the topic of contributory negligence and neglected to consider what was the proximate cause of the accident. The proximate cause was not the existence of the pond, but, the fact of the child being unattended."

[177] The Lord President clearly considered that the proximate cause of the accident in this case was not a lack of fencing or employees at the side of the pond, but the fact that the young boy was permitted to attend at the site of the pond without any parental supervision. In the present case, it is submitted that the pursuer's unreasonable decision to scale the gated fence was the proximate cause of the accident.

[178] In tandem with considering proximate cause, the Court will no doubt wish to consider whether or not the pursuer has acted volenti non fit injuria. My arguments as to the proximate cause of the accident apply equally to that of volenti non fit injuria. It is submitted that the pursuer acted volenti non fit injuria in attempting to scale the gate. In doing so, he has also acted in such a way as to exclude his claim from being considered under the 1960 Act: Section 2(3). This section excludes persons from bringing claims against the occupier where the person entering on the premises has willingly accepted the risks. It was the pursuer's own evidence under cross examination that when he started climbing he knew that there was a risk that he might fall, but that he accepted that risk and climbed up anyway. It is submitted that any person who wilfully attempts to scale a tall gated fence is wilfully accepting these risks, and that risk in the instant case, is one of falling from something. Sayers -v- Harlow Urban District Council 1958 1WLR 632 can be distinguished from the present case. The circumstances of the two cases were not analogous. In Sayers, the plaintiff was not actually attempting to climb over a locked door by using the toilet roll as a foothold at the time of her accident. As Lord Justice Ormerod observed at page 633:

"Apart from the question of contributory negligence, it does not appear to me that at that stage the plaintiff had taken any risk which was in anyway disproportionate to the necessities of her situation, or which could have been regarded as unreasonable in the circumstances in which she found herself. She was locked in the lavatory. She had been unable to attract attention, and she therefore investigated the possibility of climbing up as she described, but decided on such investigation that she was unable to do it. Had she decided to continue with her attempt to get out by using the toilet roll as a foothold, she would, in my judgement, have been taking risks not justified by the circumstances." (Emphasis added).

[179] It is submitted that there has been no breach of any common law or statutory duty incumbent upon the defender. The Court is invited to find that the defender was not the occupier of the common access gate or relevant section of fencing; that neither the gate nor the fencing were dangers; and to assoilzie the defender from the pursuer's craves and grant the expenses of this action in favour of the defender.

Contributory negligence

[180] If it is found that there is liability, it is submitted that any award should be reduced in respect of the pursuer's contributory negligence.

[181] In Lowe, the Sheriff considered that the pursuer would be held two thirds to blame, had liability attached. In the present case, the actions of the pursuer were substantially more reckless than those of the pursuer in Lowe. Accordingly, if there is to be a finding of liability, the court is invited to assess the pursuer's contributory negligence to be of the highest order, and in the region of 95 percent. In Sayers contributory negligence was calculated at 25%. But the pursuer in Sayers was only investigating the possibility of embarking on a dangerous climb, whereas the pursuer in the present case actually went through with it. It follows that the pursuer in the present case was more negligent than the plaintiff in Sayers and accordingly contributory negligence should, of necessity be higher than 25%.

Quantum

[182] The defender's submits that the pursuer's valuation of the claim is excessive. It is submitted that consideration be given to the Judicial College Guidelines, (11^th Edition), Chapter 7 (N)(d) (modest ankle injuries). This bracket covers less serious minor and undisplaced fractures, sprains and ligamentous injuries. The level of award within the bracket is determined by whether or not a complete recovery has been made and if a recovery is incomplete whether there is any tendency for the ankle to give way and whether there is scarring, aching, discomfort, loss of movement or the possibility of long term osteoarthritis. It is also noted where recovery is complete without any ongoing symptoms of scarring the award is unlikely to exceed £5,500 and the bracket in question allows for awards of up to £9,800.

[183] Reference is also made to the English case of McKenzie -v- Craggie Island Limited (2011) recorded in Kemp, document number AM0505135. That case involved a plaintiff who sustained a severe bimalleolar fracture to the right ankle which was treated by open reduction and internal fixation. He was unable to bear weight on the right foot for three months until the fixation screw was removed and mobilised on crutches. He required his mother's help for 41/2 months, was unable to drive for 4 months, had a noticeable limp assisting at 5 months post-accident and almost complete recovery within 2 years, 9 months of the accident. Solatium was £9,000 in 2011. It is submitted that the injuries were more severe injuries than those of the pursuer of the present action.

[184] On a full liability basis, the highest valuation of the pursuer's total claim is in the order of £8,000 plus interest.

[185] The Court was invited to certify Ms Ann Farmer as an expert witness, for the purpose of any subsequent discussion which may arise from my Lordship's judgement anent expenses.

Grounds of decision

The 1960 Act

Was the defender an occupier?

[186] The 1960 Act imposes a duty of reasonable care on the occupier of premises: Section 2. So the first question to be considered is whether, at the date of the pursuer's accident, the defender was the (or an) occupier of the premises which included the communal gate.

[187] An occupier is "...a person occupying or having control of land or other premise...": Section 1(1).

[188] On this matter, I preferred the submissions made on behalf of the pursuer. I accept, as a matter of fact, that the defender was not the proprietor of the communal gate or the land on which it stands. But ownership is not the issue, nor is mere physical occupation. The critical question is control. The defender was one of several key holders. The defender was able to - and did - (partially) exercise control over who entered onto the communal area (referred to as the 'car park') and who did not. Control does not need to be exclusive.

[189] I am satisfied that in the present case, the defender was an occupier by reason of the control over access which he was in a position to exercise.

Did the gate constitute a danger?

[190] The standard of care to be exercised by an occupier is Sone of reasonable care. This is a flexible standard, the reference point in each case being "...dangers which are due to the state of the premises or to anything done or omitted to be done on them...": Section 2(1)

[191] In my view, the duty to take reasonable care can only be said to be engaged when there is something which is a "danger".

[192] The word "danger" is not defined in the Act. Accordingly, it appears to me that it is appropriate to give it its everyday meaning, which I take to be "something with the potential to cause harm". Now, at a logical level almost anything - even everyday objects - has that potential, depending on (i) how it is being used or (ii) the surrounding context.

[193] But it appears to me that applying a commonsense approach, a gate which is operating normally, cannot be said to constitute a danger. I contrast that with the examples relied on by the defender. On any view, holes in the ground and train movements are intrinsically dangerous, if not fenced off.

[194] In passing, I observe that on appeal, the Inner House were sceptical of the idea that slippery planks did not constitute a danger: Dawson v Page [2013] CSIH 24, paragraph [16]. But even if the Lord Ordinary in Dawson was incorrect at first instance on that issue, my view is that in the present case, a gate operating normally, whether open or closed cannot be said to constitute a danger. Accordingly, on this aspect of the case, I prefer the submissions of the defender. As there was nothing which on any practical sense which could be said to constitute a danger, no obligation under the 1960 Act arises.

[195] That is sufficient to dispose of the pursuer's statutory case, which I am satisfied must necessarily fail.

The common law claim

[196] In order to succeed on this leg of his case, the pursuer needs to show that (i) in the circumstances, the defender owed him a duty of care; (ii) that that duty was breached; and (iii) the breach was the cause of his injuries and losses.

[197] At a more concrete level, that can be articulated as a duty to take reasonable care to ensure that the pursuer was not 'locked in'. (Articulated in that way, the nature of the duty said to be incumbent on the defender highlights that this case is not concerned with something intrinsic to the nature of the premises or any activity carried out thereon.)

[198] In Sayers, the breach of duty related to a defect in the toilet door which had no handle, which prevented it from being opened on the inside. So the nature of the negligence complained of in that case appears to have related to a failure in design or maintenance of property.

[199] In the present case, the duty (ex hypothesi one existed) arises not from something which was inherently dangerous but from a set of circumstances of which the gate (which was not defective) was but one part.

Was there a duty of care?

[200] This has to be answered by reference to first principles.

[201] I was referred to the neighbourhood principle as elucidated in Donoghue v Stevenson. In my view, applying that approach to the present circumstances, the defender owed a duty of care to the pursuer.

[202] The defender invited or permitted persons such as the pursuer to enter onto premises occupied by him (which comprised both his own yard and the parking area between the inner gate and the communal gate: see above). As such, the defender owed the pursuer a duty to take reasonable care for the pursuer's safety.

[203] In my opinion, it was foreseeable (i.e. was or should have been within the contemplation of the 'reasonable occupier') that if the defender allowed the pursuer to be locked into the premises occupied by him, the pursuer might take steps to 'escape' and in doing so might be harmed.

[204] I derive support for my conclusion on this question from the case of Sayers. A degree of caution is required in relation to that case, as the appeal was focussed on a different issue and as a result the character of the duty and the breach were not discussed in any detail. Also, that case was concerned with a defect in design or maintenance of property, rather than anything to do with a system for regulating access and egress. Nevertheless, I consider that Sayers is of some assistance in relation to foreseeability of harm in the context of considering whether a duty of care existed. At page 626, Lord Evershed M.R. said:

"I think that here we have to apply ordinary common sense tests. A woman goes to a public lavatory and finds that she is immured in it. She finds, after ten or fifteen minutes, that the obvious and proper means of attracting attention had been entirely without avail shouting and waving through the window had produced no result at all. It is an extremely disagreeable situation in which to find oneself; and it seems to me to be asking too much of the so-called reasonable man or woman to suppose that he or she would just remain inactive until her husband, or someone else, chose to come and look for her and find her..."

[205] At page 630, Lord Morris said:

"It seems to me that the most natural and reasonable action on the part of someone who finds herself undesignedly confined is to seek the means of escape."

[206] See also the comments of Lord Ormerod in the penultimate paragraph of the decision.

[207] These comments fortify me in my view that it is reasonably foreseeable that a person who finds him or herself locked in will try to escape. To that extent, it is of assistance in determining the existence of a duty to take reasonable care not to allow that state of affairs to materialise.

[208] Finally, the defender himself said in evidence that he was "100% sure there was a check of the yard. You always check - it is your duty to check". Leaving aside for the moment the factual dispute as to whether or not that happened (and if so whether the check made was adequate) the defender's position that a check was made seems to me to support the conclusion that a duty to do so existed, in the sense that it was a necessary precaution.

[209] For all of these reasons, I am satisfied that there was a duty on the defender to take reasonable care to ensure that, when the yard was vacated by him (and anyone on his behalf) that no visitor thereto, such as the pursuer, was left locked in.

Was there a breach of duty?

[210] The duty described above is said by the pursuer to have been breached in two respects. Firstly, it is said on behalf of the pursuer that the defender failed to perform an (adequate) inspection of the yard before leaving. Secondly, it is said that the defender or somebody on his behalf locked the communal gate. It is helpful to examine these aspects separately.

Was an (adequate) inspection of the yard made?

[211] The pursuer's position was that he was in the yard and did not see anybody or hear anyone shouting. I accepted his evidence on these two points. That is not conclusive of there being no check made, but I was invited to so infer.

[212] At this stage, it is helpful to mention something of the evidence about the dimensions of the yard. There was no specific evidence as to the layout or size of it, but my impression was that it extended for some distance beyond the defender's garage and office building. The pursuer said that he had walked about 200 yards into it. The defender said a person walking from the far end of the yard back to the entrance would take "about 4 minutes". A person walking at 1 mile per hour would cover about 29 yards per minute. At a relatively modest pace of 3 miles per hour, a person would cover about 90 yards in a minute. So even allowing for some inaccuracy in the defender's estimate, it is consistent with the pursuer's evidence that the yard was of fairly large dimensions.

[213] Turning to the evidence about the check that was carried out, I discount the evidence of Ronald Phinn. My impression was he could remember little. The defender said that the practice was to give a few shouts and that that is what had happened along with Mitchell Purney having been asked if he had seen anybody in the yard and saying he had not. Sean Phinn said that he and Mitchell Purney had both shouted and both done a visual check to see if there were any customers. He did not describe how the visual check said to have been carried out was done. In cross examination he said that he had gone through the inner gate and shouted; that he had gone about "40 feet" into the yard.

[214] My impression of all of this is twofold. First, I am prepared to accept the some kind of check was carried out. Second, I am satisfied that that check was perfunctory and did not involve anything more than a visual check and a few shouts being uttered. But the important point is that both of these things happened with nobody venturing any material distance into the yard.

[215] On that factual basis, it is necessary to consider whether a check done in that way was adequate, in the sense of being the defender taking reasonable care to ensure that no-one was left behind in the yard.

[216] In my view, it was not. The defender knew (or should have known) that the pursuer had entered the yard. He had not seen him leaving. The yard was large. I do not suggest that the defender was under a duty to ensure that the yard was searched, but a reasonable check would have entailed somebody going a good distance into the yard - at least far enough to ensure that a vocal check or warning could be heard at the end of the yard furthest away from the office building.

[217] Accordingly, on this part of the case, while I do not hold it proved that the defender failed to carry out any check whatsoever, I am satisfied on the evidence that there the check that was carried out was inadequate.

[218] Now it may be said - why does this matter, unless it is also proved that the defender locked the gate? If the gate was not locked, then any breach of the duty to check the yard could not be said to have caused the accident, because the pursuer would simply have been able to walk out.

[219] Before dealing with that point, it is appropriate to consider what was proved in relation to the locking of the communal gate. It is to that issue that I now turn.

Did the defender lock the communal gate or cause it to be locked?

[220] I am satisfied that the communal gate was locked when the pursuer arrived at it. He said it was chained and padlocked and I believed him.

[221] The pursuer was not in a position to say who locked the gate. I was invited to infer that it was done as the defender was leaving.

[222] The defender was adamant that neither he nor anybody with him locked the gate on leaving. That was supported by his son. There were some inconsistencies (not to say curiosities) in their account, but I did not find a clear basis for rejecting their testimony as untrue. On balance, I am unable to hold it proved that the defender or anyone on his behalf.

[223] However, there remains some other evidence in relation to this aspect of the case which is of significance.

[224] It is clear that occupiers of yards neighbouring the defender's yard had keys to the communal gate; there were at least five such keyholders; and that the 'last man out' locked the gate. These points were all spoken to by the defender himself. There was evidence of activity in the neighbouring yards both generally and on the day of the pursuer' accident.

[225] It was not suggested by the defender that on the day of the pursuer's accident he or anybody else had checked to see whether any of the neighbouring yards (i.e. those within the communal gate) were still occupied.

[226] Since I am satisfied that (i) the communal gate was locked when the pursuer reached it and (ii) it was not locked by the defender, I am driven to the conclusion that it was locked by another keyholder (i.e. a neighbouring occupier) on his way out. I am also satisfied that such an occurrence was foreseeable i.e. even if the communal gate was left open by the defender, it could be locked at any time by another key holder. That conclusion highlights the importance of the first duty desiderated by the pursuer i.e. the duty to take reasonable care to check the yard for customers before vacating it.

Conclusion on breach of duty

[227] The two desiderated duties are to some extent interdependent. If the duty to check the yard was carried out adequately, then the duty not to lock the communal gate might well never arise at all. If the duty to adequately check the yard was breached (as it was here) then the defender could compound the problem by locking the communal gate. But even if he did not do so, leaving the communal gate open was not an adequate precaution against the risk of somebody being locked in, because, if the yard was not checked, it was foreseeable that another keyholder might lock the communal gate.

[228] Thus, in my view, the requirement on the pursuer to show a relevant breach of duty is not periled on him proving that the defender locked the communal gate. It is sufficient for him to prove that the steps taken to check the yard for the presence of visitors were not adequate.

Causation

Factual causation

[229] I am satisfied that, as a matter of fact, the defender's breach of duty caused the pursuer's accident. But for that breach, the pursuer would not have been locked into the yard and so the need (on his part) to escape would not have arisen.

Legal causation

[230] Where there has been a breach of duty by the defender, the act of a third party or the victim will not ordinarily break the chain of causation if it was reasonably foreseeable that the subsequent act would take place. Sayers is an example of such a case. In my view, as already noted in relation to the existence of a duty of care, the pursuer's attempt to escape was a foreseeable subsequent act. Accordingly, subject to what I have to say below, I am satisfied that the defender's breach of duty was the proximate and effective cause of the pursuer's injuries.

[231] At this point, I should say that I accepted the pursuer's evidence to the effect that there was no other obvious or practicable means of escape or getting help. I accepted his evidence to the effect that he could not gain access to the office phone; that he had taken reasonable steps to explore and exclude other exit routes; and that his attempts to attract attention had produced no result.

Volenti non fit injuria

[232] This issue is closely related to the question of causation.

[233] Reliance was placed in this case on Titchener. But an important difference between that Titchener (which was primarily decided on the issue of the absence of a duty of care towards the pursuer) was that pursuer had a choice about whether to cross the railway line where she was injured, there being another available route to her tryst with her boyfriend. Thus, the court held, she had willingly accepted the risk of crossing a railway line, a risk which on her own evidence she was aware of and recognised as such.

[234] In the present case, it cannot be said that the pursuer was willing to take the risk of climbing the fence. What he did may have been risky, but he was put in the position of having to court that risk by the defender's breach of duty, rather than by the exercise of a free choice in the face of available options. Thus, on this point, I prefer the submissions for the pursuer and hold that the plea of volenti falls to be repelled.

Contributory negligence

[235] The parties adopted opposing stances on this issue. So far as the defender's argument for a reduction of 95% is concerned, it appears to me that that is such a finding is an inherently unlikely one. No reported case supporting a deduction of that magnitude was reported to me. In addition, given the relatively broad brush approach that is required relation to this type of issue, if I was persuaded (which I am not) that a deduction of 95% was appropriate, I would have been likely to have been persuaded that the pursuer was solely to blame.

[236] For the pursuer, it was contended that the situation was akin to that of Sayers. But in my view, there are important differences between the two cases. In Sayers, the plaintiff was locked in a public toilet. A more confined space to be sure, but also surrounded by a wall only 6 feet or so high. In the present case, the pursuer chose to scale a 12ft high gate, inherently less stable than a wall and topped with barbed wire.

[237] Not only that, but the plaintiff in Sayers, having investigated the possibility of escape over the wall, gave up that attempt and was held to be blameworthy for using the toilet roll holder on which to rest her foot on the way back down.

[238] The question is whether the pursuer was blameworthy. On the one hand, he was trapped and understandably anxious to get out. He had no means of knowing when or if anybody might return. On the other hand, it was during the day. The site was not a completely isolated one and the pursuer, on his own evidence, decided to try and scale the gate after waiting for only about 25 minutes. The pursuer knew what he was taking on from the outset. The obstacle was a significant one and the risk of injury in climbing up; getting over; and descending was one which the pursuer did, or should have, appreciated. The gate offered no handholds; a tricky manoeuvre to get over the barbed wire at the top; and was on the pursuer's own account "unstable", which he must have appreciated as he climbed up it. Therefore, it seems to me that the risk in doing what he did so should have been apparent to the pursuer.

[239] Weighing as best I can the predicament in which the pursuer found himself against the risk associated with climbing the gate, I have concluded that the pursuer's actions were blameworthy. I consider that he was more to blame than the plaintiff in Sayers and that the award of damages which I propose to make in his favour should be reduced by one half.

Quantum

Solatium

[240] The pursuer suffered a serious injury to both ankles which in the short term had a significant impact on his mobility and which has left him with the risk of developing osteoarthritis. I have concluded that the £11500 contended for is moderately stated.

Interest on solatium

[241] In my view, the correct approach to the question of interest is to firstly divide solatium between the portion attributable to the past and the portion attributable to the future: see Delictal Liability, Thomson, para 16.15

[242] In the present case, the pursuer has made a substantial but not complete recovery from his injuries. Accordingly, I attribute 75% of the solatium to the past. The multiplicand is calculated thus:

Solatium (full liability) £11500.00

Deduct one half for contributory negligence 5750.00

Net value of solatium 5750.00

Deduct 25% attributable to future 1437.50 Proportion thereof attributable to past £4312.50

[243] Interest on past solatium is awarded at 4% per year from the date of the accident to the date hereof. To date, that gives £4312.50 x 4% x 2.38 years = £410.55. Thus, the award for solatium to which the pursuer is entitled including interest to date is:

Past solatium £4312.50

Interest thereon 410.55

4723.05

Future solatium 1437.50 Total £6160.55

Services

[244] There was no serious challenge to the level of services which the pursuer required from his wife. The method of attributing a monetary value to these seemed to me to be reasonable. All the services are in the past and had ceased after about 6 months. Accordingly, I consider it appropriate to award interest at 4% per year during the period which services were being afforded to the pursuer and at 8% per year thereafter to the date of decree. The multiplicand is calculated thus:

Value of services (full liability) £3465.00

Deduct 50% for contributory negligence 1732.50

Net value of services £1732.50

[245] The services were provided to the pursuer between his discharge from hospital and about the end of August/beginning of September 2011. In respect of that period, interest is £1732.50 x 4% x 0.5 years = £34.65.

[246] The period from September 2011 until the date hereof is about 22 months or 1.83 years. Thus, interest on accruing on the award for services is from the end of that period to the date of decree herein is £1732.50 x 8% x 1.83 years = £253.64. Accordingly, the award for services including interest to date is:

Value of services (full liability) £1732.50

Interest 34.65

253.64

288.29

Total £2020.79

Summary of award

[247] The pursuer is entitled to damages of £6160.55 + £2020.79 = £8181.34.

Disposal

[248] I find in fact and in law that the pursuer's injuries and losses were caused by the fault of the defender; that the pursuer contributed to his own injuries and losses; and I grant decree for payment by the defender to the pursuer of the sum of £8181.34 including interest to date; with interest thereon at the rate of 8% per year from the date hereof until payment. I was invited to deal with expenses on the basis that they should follow success. The pursuer has been substantially successful, so I shall find the defender liable to the pursuer in the expenses of process; certify 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 to the Auditor of Court to tax and to report.

[249] Finally, I would like to thank both agents for their presentation of this case and for their extensive and helpful submissions. It is evident that both put a lot of work into preparing for this interesting case.

(Sgd.) "K J McGowan"

Sheriff