Craig Anderson Against John Imrie And Antoinette Imrie
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Drummond Young,Lord Brodie |
| Neutral Citation | [2018] CSIH 14 |
| Date | 15 March 2018 |
| Docket Number | PD53/14 |
| Court | Court of Session |
| Published date | 15 March 2018 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2018] CSIH 14
PD53/14
Lord Brodie
Lord Drummond Young
Lord Malcolm
OPINION OF LORD BRODIE
in the cause
CRAIG ANDERSON
Pursuer and respondent
against
JOHN IMRIE
First defender
and
ANTOINETTE IMRIE
Second defender and reclaimer
Pursuer and respondent: Milligan QC, Skinner, Drummond Miller LLP
First Defender: Non-participating Party
Second Defender and reclaimer: Springham QC, BTO Solicitors LLP
15 March 2018
Introduction
[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
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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 senior. 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 (“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
section 17 of the Prescription and Limitation (Scotland) Act 1973 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:
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 Occupiers’
Liability (Scotland) Act 1960 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 Occupiers’ Liability (Scotland)
Act 1960. The evidence was insufficient to allow him to find that she
exercised the necessary control of the premises.
3. The Lord Ordinary erred in holding that the accident occurred due to “the
state of the premises” in terms of section 2 (1) of the Occupiers’ Liability
(Scotland) Act 1960. The gate which injured the pursuer was not a danger
due to the state of the premises as is required under that section.
The Facts
Hillhead farm
[5] At the time of the accident Hillhead Farm extended to about one hundred acres. The
father of the first defender, John Imrie Senior, owned the farm in addition to certain other
farms in the neighbourhood. All the farms were operated as a single business, of which
Mr Imrie senior was the sole proprietor. Hillhead was a dairy farm and was also used for
breeding cattle and sheep.
The farm courtyard and the location of the accident
[6] At Hillhead various farm buildings were constructed around a central courtyard.
The farmhouse was on the south side of the courtyard. A kitchen window looked out on the
courtyard. Immediately to the east of the farmhouse there was an iron gate giving access
(including vehicular access) to the courtyard from the private road leading to the farm. On
the east side of the courtyard there were other buildings, including a barn and a stable. Just
in front of the stable (to the west of it) there was a small area used as a race or livestock
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