Occupiers Liability, Contributory Negligence and Quantum of damages

A recent case before the Court of Session has raised a number of interesting and unusual issues, which are currently the subject of appeal to the Inner House.

CRAIG ANDERSON V (FIRST) JOHN & (SECOND) ANTOINETTE IMRIE [2016] CSOH 171 was an action at the instance of a 21 year old pursuer, who had been 8 at the time the accident occurred.   He had been playing on a farm with the son of the farms’ occupiers, and was seriously hurt when a heavy farm gate fell on him, resulting in injuries to his skull and brain.   Contentious issues included 1) whether the defenders, who worked and lived on the farm, were in fact occupiers of the farm for the purposes of the 1960 Act; 2) the manner in which the accident had occurred; 3) whether the defenders were liable at common law; and 4) the extent, if at all, to which a child of 8 should be found contributorily liable for the injuries he sustained.   Parties were also markedly apart as regards quantum of damages if liability was established.

The proof was heard over 8 days before Lord Pentland, who decided that the accident did not occur as averred and spoken to by the pursuer, whose evidence was described as ‘vague and uncertain’ ,albeit it was held that it was still open to the court to find that the pursuer had established liability;  that the defenders were indeed occupiers of the farm at the time in question;  that notwithstanding both defenders being found to be occupiers of the farm, there was a distinction to be drawn between the first defender (who was working elsewhere on the farm at the time) and the second defender, who had assumed responsibility for the pursuer on the day in question, and was in loco parentis; she was, therefore, in breach of duty whereas the first pursuer was not;  that, likewise, there was a distinction to be drawn at common law between the first defender and the second defender, who had failed to take reasonable care to supervise adequately and as such was negligent; and that, liability having been established, it was appropriate to find the pursuer 25% to blame for the accident as, even aged 8, he should have heeded the instructions of adults and not entered the area where the gate was to be found.

Quantum was calculated having regard to solatium, future loss of earnings, costs of psychological therapy, services and interest, and was awarded in the sum of £325,976 against the second defender only, the first defender being absolved of any responsibility.  A Reclaiming Motion (appeal) has been marked to the Inner House, where a hearing might be anticipated before the summer.