Search court cases and case law in the UK


David Paterson v. Grattan Plc, Sheriff Brian A. Murphy, Kilmarnock Sheriff Court, 2 November 2010


In April 2004, the pursuer purchased a bicycle from the defenders by mail order. On or about 9 April 2004, the Pursuer was out cycling alone on the bike when he was involved in an accident. On or around the following, the pursuer and his father took the bike to North Ayrshire Cycles to be inspected. At that time, it was determined that there was a faulty cog in the rear freewheel mechanism of the bike, and that as a result, the hacket had failed to engage. North Ayrshire Cycles replaced the mechanism and retained the old parts until summer 2008, at which point they were scrapped.

Some months following the accident, the pursuer remained dissatisfied with the bicycle, and the bike was later returned to the defenders, who refunded all costs to the pursuer in October 2004, as a good will measure. This was treated as a normal return by the defenders, no accident having been reported to them at the time. The pursuer thereafter raised a personal injury action against the defenders in respect of injuries arising out of his accident.

The defenders submitted that the pursuer knew or ought reasonably to have known that the rear freewheel mechanism was implicated in the accident. The pursuer moreover should have known that North Ayrshire Cycles retained in their own possession the faulty part which attributed to the accident, and that this should be recovered, it forming part of the evidence of the claim against them. It was submitted that even if the pursuer had not realized the significance of this part in 2004, the pursuer ought to have so realized when his solicitors were instructed to raise his claim and reports were sought. The defenders submitted that the pursuer had failed in his high duty of care to take all proper steps to preserve this fundamental item of real evidence, and that the pursuer was solely responsible for its loss. The defenders submitted that they were at prejudice in the action as they were not able to obtain their own expert opinion to properly test the reason for the accident. Any such evidence on the cause of the accident would be entirely one-sided.

The Sheriff noted that the pursuer now accepted that retrieving and retaining the freewheel mechanism was important, and the Sheriff concluded that it was not open to the pursuer to absolve himself from fault in this respect, having known that the part would be a crucial part of the evidence in this case. The court noted that the defenders would suffer insurmountable prejudice if secondary evidence as to state of the rear freewheel mechanism were to be permitted and accordingly, decree of absolvitor was granted.