Anderson v Imrie
| Jurisdiction | Scotland |
| Judge | Lord Pentland |
| Judgment Date | 15 March 2018 |
| Neutral Citation | [2018] CSIH 14 |
| Date | 15 March 2018 |
| Court | Court of Session (Inner House) |
| Docket Number | No 18 |
[2018] CSIH 14
Extra Division
Lord Pentland
Anderson v City of Bessemer 470 US 564 (1985); 105 S Ct 1504; 84 L Ed 2d 518
B (AChild) (Care Proceedings: Appeal) (Re) [2013] UKSC 33; [2013] 1 WLR 1911; [2013] 3 All ER 929; [2013] 2 FLR 1075; [2013] 2 FCR 525; [2013] HRLR 29; [2013] FamLaw 946
Benmax v Austin Motor Co Ltd [1955] AC 370; [1955] 2 WLR 418; [1955] 1 All ER 326; 72 RPC 39
Biogen Inc v Medeva plc [1997] RPC 1; 38 BMLR 149; 20 (1) IPD 20001
Bourhill v Young 1942 SC (HL) 78; 1943 SLT 105; [1943] AC 92; [1942] 2 All ER 396
Bourne Leisure Ltd (t/a British Holidays) v Marsden [2009] EWCACiv 671; [2009] 29 EG 99 (CS); [2009] NPC 93
Dawson v Page [2012] CSOH 33; 2012 Rep LR 56; 2012 GWD 11–217
Dempster (R & J) Ltd v Motherwell Bridge and Engineering Co Ltd 1964 SC 308; 1964 SLT 353; 1964 SLT (Notes) 82; 2 BLR 104
Donoghue v Stevenson 1932 SC (HL) 31; 1932 SLT 317; [1932] AC 562; [1932] WN 139
Flower v Ebbw Vale Steel, Iron and Coal Co Ltd [1936] AC 206
Gallagher v Kleinwort Benson (Trustees) Ltd and ors 2003 SCLR 384; 2003 GWD 11–331
Grayan Building Services Ltd (in liquidation) (Re) [1995] Ch 241; [1995] 3 WLR 1; [1995] BCC 554; [1995] 1 BCLC 276
HS v FS sub nom S v S [2015] CSIH 14; 2015 SC 513; 2015 FamLR 37; 2015 GWD 7–139
Harris v Perry [2008] EWCA Civ 907; [2009] 1 WLR 19
Henderson v Foxworth Investments Ltd sub nom Liquidator of Letham Grange Development Co Ltd v Foxworth Investments Ltd[2014] UKSC 41; 2014 SC (UKSC) 203; 2014 SLT 775; 2014 SCLR 692; [2014] 1 WLR 2600; 158 (27) SJLB 37
Housen v Nikolaisen 2002 SCC 33; [2002] 2 SCR 235
Hughes v Lord Advocate 1963 SC (HL) 31; 1963 SLT 150; [1963] AC 837; [1963] 2 WLR 779; [1963] 1 All ER 705
Jolley v Sutton London Borough Council [2000] 1 WLR 1082; [2000] 3 All ER 409; [2000] 2 Lloyd's Rep 65; [2000] 2 FCR 392; (2001) 3 LGLR 2; [2000] BLGR 399; [2000] PIQR P136 [WLR, paras 19 & 54; All ER, para 82]
Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39; [2006] 1 WLR 953; [2006] PIQR P19; [2006] NPC 18
McFarlane v Tayside Health Board 2000 SC (HL) 1; 2000 SLT 154; 2000 SCLR 105; [2000] 2 AC 59; [1999] 3 WLR 1301; [1999] 4 All ER 961; [2000] 1 FCR 102; [2000] PIQR Q101; [2000] Lloyd's Rep Med 1; 52 BMLR 1
McGlone v British Railways Board 1966 SC (HL) 1; 1966 SLT 2
McGraddie v McGraddie [2013] UKSC 58; 2014 SC (UKSC) 12; 2013 SLT 1212; 2015 SCLR 109; [2013] 1 WLR 2477
Mitchell (George) (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803; [1983] 3 WLR 163; [1983] 2 All ER 737; [1983] 2 Lloyd's Rep 272; [1983] ComLR 209
Muir v Glasgow Corporation 1943 SC (HL) 3; 1944 SLT 60; [1943] AC 448; [1943] 2 All ER 44
Royal Bank of Scotland plc v Carlyle [2015] UKSC 13; 2015 SC (UKSC) 93; 2015 SLT 206
Surtees v Kingston upon Thames London Borough Council [1991] 2 FLR 559; [1992] PIQR P101; [1991] FamLaw 426991
Thomas v Thomas 1947 SC (HL) 45; 1948 SLT 2; 1947 SLT (Notes) 53; [1947] AC 484; [1947] 1 All ER 582; 63 TLR 314; [1948] LJR 515; 176 LT 498
Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1; 2004 SLT 24; 2003 SCLR 765; [2004] PIQR P7
Wv Greater Glasgow Health Board [2017] CSIH 58; 2017 GWD 29–465
Wheat v E Lacon & Co Ltd [1966] AC 552; [1966] 2 WLR 581; [1966] 1 All ER 582; [1966] RA 193; [1966] RVR 223
Anon, “Appellate Courts” 2015 SLT (News) 125
Gibbens, RD, “Appellate Review of Findings of Fact” 1992 (13) Advocates Q 445
Reparation — Negligence — Pursuer injured while defenders in loco parentis — Whether accident and injury reasonably foreseeable — Whether defenders had exercised reasonable care by way of supervision
Process — Review — Reclaiming motion — Circumstances in which appellate court can interfere with findings made by first instance judge — Whether necessary to identify error by first instance judge — Whether decision at first instance plainly and obviously wrong
Craig Anderson raised an action for reparation in the Court of Session against John and Antoinette Imrie for injury suffered by him on a farm. After sundry procedure the action called before the Lord Ordinary (Pentland), between 18 and 28 October 2016, for proof. At advising, on 8 December 2016, the Lord Ordinary assoilzied the first defender but found the second defender liable and made an award of damages ([2016] CSOH 171). The second defender reclaimed.
The pursuer raised an action for reparation for personal injury against the defenders. The pursuer, as an eight-year-old child, had been left with the defenders at the farm they lived on. The second defender had agreed to look after the pursuer. The second defender was also looking after two of her own children, one a baby, as well as grooming a horse. The second defender left the pursuer unsupervised for a few minutes with instructions to remain within certain specified areas of the farm, and not to enter certain other areas, including a race. The pursuer climbed over a closed gate to enter the race. In the race was a heavy gate secured to a barrier by a chain. The pursuer climbed on to the gate causing it to fall on top of him, severely injuring him. After proof, the Lord Ordinary absolved the first defender, but held that the second defender owed a duty of care to the pursuer both at common law and under the Occupiers’ Liability (Scotland) Act 1960 (8 & 9 Eliz 2 cap 30) (‘the 1960 Act’), and that she had breached those duties by inadequately supervising him. The second defender reclaimed.
The second defender argued, inter alia, that (1) the finding of a failure to exercise reasonable care was not of the nature of a finding of fact that could only be interfered with in the event of an identifiable error and (2) the second defender had not breached her duty of care. The pursuer conceded that her common law case stood or fell with his case under the 1960 Act.
Held that: (1) (per Lord Brodie) whether the second defender had breached her duty of care was a question of mixed fact and law, upon which there was greater scope for an appellate court to interfere than when findings of primary fact were challenged, but the appellate court still had to be satisfied that the Lord Ordinary was plainly and obviously wrong, which had not been demonstrated in the present case (para 36); (2) (per Lord Drummond Young) whether the second defender had breached her duty of care involved the application of legal principles to the facts, in such a case the question for an appellate court was not whether the Lord Ordinary's decision was reasonable but whether his decision was correct on the merits as a matter of substance, in the present case the Lord Ordinary's decision was correct (paras 45, 52, 70–79) (3) (per Lord Malcolm) there was a wide spectrum of appeals between those involving questions of pure law (such as the meaning of a statutory provision) and challenges to findings of primary fact, appeals were not susceptible to categorisation into different types, the question in any appeal was whether the advantages enjoyed by the trial judge in respect of the question at issue placed that judge in such a superior position that the appellate court ought not to conclude that the judge had reached the wrong decision, it could not be concluded that the Lord Ordinary had reached a wrong decision in the present case (paras 95, 96, 111, 115); and reclaiming motion refused.
Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203 and W v Greater Glasgow Health Board2017 GWD 29–465discussed.
The cause called before an Extra Division, comprising Lord Brodie, Lord Drummond Young, and Lord Malcolm, for a hearing on the summar roll, on 17 October 2017.
At advising, on 15 March 2018—
Lord Brodie—
[1] On 30 June 2003 the pursuer, who was then eight years old, was seriously injured in an accident at Hillhead Farm, Torrance, East Dunbartonshire. A heavy gate fell on the pursuer causing injuries to his skull and brain. In this action, he seeks damages from the defenders, Mr John Imrie and his wife, Mrs Antoinette Imrie, on the basis that the accident was caused by their failure to take reasonable care for his safety. 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 Snr. The pursuer avers that the defenders were the occupiers of the farm at the material time for the purposes of the Occupiers’ Liability (Scotland) Act 1960 (8 & 9 Eliz 2 cap 30) (‘the 1960 Act’). He claims that they were in breach of the duties they owed to him under the 1960 Act and also at common law.
[2] The pursuer was born on 23 January 1995. The limitation period provided by sec 17 of the Prescription and Limitation (Scotland) Act 1973 (cap 52) in respect of personal injury caused by the accident therefore commenced on 23 January 2011. The action was raised shortly before the end of that period, in early 2014.
[3] The action came before the Lord Ordinary for proof on liability and quantum of damages on 18 October 2016. Having heard evidence, on 28 October 2016 the Lord Ordinary made avizandum. On 8 December 2016 the Lord Ordinary assoilzied the first defender (Mr John Imrie). He found the second defender (Mrs Antoinette Imrie) liable to make reparation to the pursuer and decerned against her for payment of damages in the sum of £325,976. That sum reflected a reduction of twenty-five per cent in the damages that otherwise would have been awarded by reason of the pursuer's contributory negligence.
[4] The second defender now reclaims. She presents three grounds of appeal:
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(1) The Lord Ordinary erred in finding that the second defender failed in her duty to take reasonable care for the pursuer both under the 1960 Act and at common law. The evidence demonstrated that the second defender had exercised reasonable care in supervising the pursuer.
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(2) The Lord Ordinary erred in concluding that the second defender was an occupier of the farm for the purposes of the 1960 Act...
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