Boy injured on farm awarded £325,000 damages over occupier’s breach of duty

A judge in the Court of Session ruled that one half of the couple who lived on the farm failed to take reasonable care for his safety.

Lord Pentland heard that the accident occurred at Hillhead Farm near the village of Torrance in East Dunbartonshire in June 2003, when the pursuer Craig Anderson was eight years old.

He was playing his friend Ben, the five-year-old son of the defenders John Imrie and his wife Antoinette Imrie, when a heavy gate fell on him, causing injuries to his skull and brain.

The defenders lived on the farm at the time of the accident, although it was owned by the first defender’s late father, John Imrie senior.

The pursuer, now 21, said in evidence that his mother had arranged with Mrs Imrie for him to go to the farm to play with Ben.

He and Ben attended the same primary school and their families were friendly.

Mrs Imrie was supposed to be looking after the boys, but the pursuer’s recollection was that they were mainly left to do their own thing.

Initially, they played together in the courtyard, but they decided to leave the courtyard and go into the field to the east of the farm buildings to run around and play football.

The pursuer recalled there having been a few sheep in the field and the boys thought that it would be fun to try to herd them into the stable adjacent to the race.

The pursuer’s account was that Ben stayed in the field with the sheep while he went from the field into the race to open the gate to the stable.

Once he was in the race the pursuer saw that there was another gate positioned across the doorway to the stable, which was attached to the stable by a chain or a rope, at the top right hand corner of the gate, but it was not hinged or connected in any way at the other end.

The pursuer stood on one of the rails of the gate and reached up to detach or loosen the chain, but as he did so the gate toppled back crushing him beneath it and he struck his head against the concrete surface of the race.

He raised an action seeking damages from the defenders, on the basis that the accident was caused by their failure to take reasonable care for his safety.

The pursuer argued that the defenders were the occupiers of the farm at the material time for the purposes of the Occupiers’ Liability (Scotland) Act 1960, and claimed that they were in breach of the duties they owed to him under the 1960 Act and also at common law.

The judge held that the defenders were the occupiers at the material time for the purposes of the 1960 Act.

In considering the liability of the defenders to the pursuer in the present case, Lord Pentland considered necessary to distinguish between the positions of the two defenders.

He ruled that the first defender was not in breach of the duty of care he owed as an occupier of the farm to the pursuer.

He said: “So far as Mr Imrie is concerned, the evidence shows that he was not involved in the arrangements whereby the pursuer came to be visiting the farm on the day of the accident…There is nothing in the evidence to suggest that he even knew that the pursuer had come to play at the farm that day.

“I consider that it was reasonable for Mr Imrie to proceed on the basis that, having secured the stock gate to the barrier, there was no reason to suppose that it might topple over and injure someone. He had no reason to foresee that anyone might interfere with it.”

However, in contrast to her husband, Mrs Imrie had “assumed responsibility” for looking after the pursuer on the day of the accident, and the judge held that she had a duty to take reasonable care as an occupier to see that he did not get into the race.

In a written opinion, Lord Pentland said: “In my judgment, it is fair to conclude that Mrs Imrie ought to have foreseen that if the pursuer managed to get into the race he might injure himself by interfering in some way with the heavy stock gate…I conclude that she allowed him to be out of her sight and beyond her supervision for an unreasonably long period of time in the circumstances prevailing that day.

“There was a foreseeable danger that the pursuer would suffer injury on the farm if he was not sufficiently supervised by an adult. The evidence shows, in my opinion, that the accident happened because he was not properly supervised. In these circumstances, I consider that Mrs Imrie failed in the duty of care she owed to the pursuer under and in terms of section 2(1) of the 1960 Act.”

He added that Mrs Imrie was also “negligent at common law” because she “failed to take reasonable care to supervise the pursuer adequately”, but added that the pursuer was “partly to blame” for the accident, finding him 25% at fault.

He explained: “I recognise, of course, that he was eight years old at the time, but nonetheless he would have been aware that he should comply with the instructions Mrs Imrie gave him not to leave the courtyard and, in particular, not to go into the race.”

Having assoilzied the first defender, Lord Pentland found the second defender liable to make reparation to the pursuer in the total amount of £325,976.

That figure was made up as follows:

Solatium: £30,000

Interest on past solatium: £3,243

Future loss of earnings: £285,760

Costs of psychological therapy: £3,750

Services provided by Mrs Anderson: £2,250

Interest on services: £973