Residential property
03 Sep 2018 News

Occupier's Liability

This issue has been covered in a previous article, however there’s been a decision issued recently on an appeal in the case of Craig Anderson v John Imrie and another. The case originally came before the Court of Session in 2016, and was subsequently appealed to the Inner House of the Court of Session, with the decision issued March 2018.  The case revolved around an accident on a farm some years previously, and highlights a number of points that members should be aware of.

The facts

Craig Anderson was eight years old when he had an accident on a farm in 2003.  Mr and Mrs Imrie lived in the farmhouse, and Mr Imrie worked on the farm, though the farm and the business belonged to his father.  On the day of the accident Craig Anderson was being looked after by Mrs Imrie, and was playing with the Imries’ son.  Mrs Imrie had told the boys not to go out of the courtyard, and specifically not to go into the race or the midden.  At some point Craig entered the race, climbed on to a heavy stock gate, detached it from the chain holding it up and his own weight then caused it to fall over on top of him, resulting in a head injury.  Craig subsequently raised an action against Mr and Mrs Imrie in 2011, based on the common law of negligence and the Occupier’s Liability (Scotland) Act 1960.  The Court finally heard the case in October 2016, and delivered its opinion in December 2016.  The claim was for almost £1M in damages.                       

The law

The judge (Lord Pentland) found that Mr Imrie was not liable.  Although he was an occupier (for the purposes of the 1960 Act), he didn’t know that Craig was on the farm at the time of the accident, and couldn’t have reasonably foreseen that Craig could be injured by the gate falling on top of him.  However Lord Pentland found that Mrs Imrie was also an occupier of the farm because she lived there, although it isn’t clear from the official report to what extent she could be said to be responsible for, or in control of, the farm, as required to fall under the 1960 Act. 

Lord Pentland took the view that by agreeing to look after Craig, and regarding it as her duty to restrict the boys to playing where it was safe for them to do so, Mrs Imrie had a higher duty of care than applied to her husband.  Although she had warned the boys of the danger, Lord Pentland considered that Mrs Imrie ought to have anticipated that her warning would be ignored, given Craig’s age.  Mrs Imrie was therefore liable for the injuries suffered.  The damages awarded were just over £325,000, after taking account of Craig Anderson’s contributory negligence.

The appeal

Mrs Imrie subsequently appealed on three grounds: firstly, that the facts showed she had not failed in her duty of care, under either the 1960 Act or the common law; secondly, that she wasn’t an occupier in terms of the 1960 Act, and; thirdly, that the accident didn’t happen ‘because of the state of the premises’, which is required for liability under the 1960 Act.  

The Inner House accepted that given the passage of time between the accident and the case coming to court in 2016 it was impossible to be precise about facts and the timing of particular events, but the original judge, having heard the evidence in Court was entitled to reach the decision on the facts that he had.  Even if Mrs Imrie wasn’t an occupier in terms of the 1960 Act, she nevertheless had a common law duty of care, which she had failed to discharge.  The appeal was therefore refused. 

It goes without saying that hazards on farms should be identified and steps taken to reduce the risk of accidents.  If there is an accident, liability will be assessed retrospectively with regard to the particular circumstances, including the age and circumstances of the injured party.      

Remember that the right of responsible access means anyone can come onto your farm, and you will have a duty of care to them.  Try to anticipate what might happen to visitors, even uninvited ones, and put up suitable warning signs, remember that a picture might be worth a thousand words, particularly in the case of children.  Finally, ensure that you have adequate insurance in place, and that anyone who could potentially be liable is covered by it.

For further information please contact Alan White or a member of the land and rural business team.

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