Julie Hamilton: Occupiers’ liability and child safety

Julie Hamilton urges caution when supervising children on your property. Picture: Contributed

Julie Hamilton urges caution when supervising children on your property. Picture: Contributed

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With parents’ demanding, varied and ever-changing work schedules, the need for alternative child care arrangements is on the rise, with many parents becoming reliant upon childminders, family and friends now more than ever.

The recent decision of Craig Anderson v John Imrie and Antoinette Imrie highlights the importance of considering the “what if” scenario in terms of parental supervision whilst other children are in your care.

Stay on top of repairs and make sure your home or property insurance is up to date

Julie Hamilton

In June 2003 Craig Anderson, a then eight-year-old schoolboy, was seriously injured in an accident whilst playing on his five-year-old friend’s family farm. Thirteen years on, the Court of Session awarded him £325,000 in compensation for Mr and Mrs Imrie failing to take reasonable care for his safety.

At the time of the accident the Imries lived on the farm, although the farm itself was owned by Mr Imrie’s late father. On the day of the accident, Mr Imrie had been working away from the farm steading. Mrs Imrie had agreed to look after Craig. Mrs Imrie told the boys not to leave the courtyard area and not to enter the race or the midden. These were areas of the farm which were dangerous and out of bounds.

Mrs Imrie acknowledged that at the time of the accident, she had not been constantly watching the boys. Craig gave evidence that the boys were usually left to their own devices. He told the court that after playing football in a nearby field, they thought it would be fun to try to herd some of the sheep into the stable adjacent to the race.

Craig wanted to open the gate to the stable, but there was another, heavy duty, gate positioned across the doorway. It was not hinged, but was attached by a chain or rope on the top right-hand corner of the gate. It is believed that Craig stepped on one of the lower railings on the gate to try to untie it, but this had caused the gate to flip backwards, crushing him between the gate and concrete.

Craig sustained multiple head injuries, which the court classed as a mild traumatic brain injury. It was alleged that his injuries had caused him significant problems in terms of his learning and cognitive abilities, which have had a significant impact on his life.

Lord Pentland considered whether Mr and Mrs Imrie were the “occupiers” of the farm for the purposes of the Occupiers’ Liability (Scotland) Act 1960. He found that as Mr Imrie was unaware that Craig was on the farm, there was no breach of his duty of care under the Act.

In contrast, Mrs Imrie was regarded as having assumed responsibility for Craig and breached her duty of care under the Act and at common law. It “was a foreseeable danger that the pursuer would suffer injury on the farm if he was not sufficiently supervised by an adult”.

The court found that Craig had contributed to his own injuries by not obeying the express instructions of Mrs Imrie. By leaving the courtyard and entering the race, Craig had significantly increased the likelihood of injury to himself. As such the court found that he was 25 per cent to blame for his injuries.

The court awarded damages in the sum of £325,000 to compensate for the emotional trauma of the accident, Craig Anderson’s future loss of earnings, the cost of psychological therapy and impact of the increased level of care on his family.

Given the circumstances of the case, it is clearly important to consider your role when supervising children, particularly on properties which might be a danger to children. Stay on top of repairs and make sure your home or property insurance is up to date and adequate.

• Julie Hamilton heads up the commercial dispute resolution team at law firm MacRoberts

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