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Injury to Child in the Care of a Family Friend

Occupiers Liability - Anderson V Imrie, [2016] CSOH 171

As recent decision from the Court of Session deals with an issue at the forefront of working family life; suitable and appropriate childcare.  Many parents employ the help of nurseries or childminders but it is certainly common for friends and family step in to offer assistance. The case of Anderson v Imrie highlights the duty on a caregiver, even in an informal setting, where a foreseeable risk of injury is met with negligent supervision.   

Craig Anderson, aged 21, raised an action in the Court of Session for injuries he had sustained when he was 8 years old, at the home of the defenders, Mr & Mrs Imrie.  The pursuer had been left in the care of Mrs Imrie at the family home which formed part for the Imrie’s farm.  The pursuer raised an action against Mr & Mrs Imrie as the occupiers of the farm where his accident occurred. 

Mrs Imrie was taking care of the pursuer and he and Mrs Imrie’s 5 year old son were playing outside in the courtyard under the supervision of Mrs Imrie.  Mrs Imrie then left the 2 boys alone to tend to her horses.  She instructed the 2 boys to remain in the courtyard.  She instructed them not to enter the race as it was dangerous.  The gate to the race was closed but Mrs Imrie had again inspected the gate and was satisfied that it was securely closed.

Whilst unsupervised, the 2 boys entered a field beside the courtyard intending to herd the sheep and play football.  The pursuer wanted to open to the stable door to allow the sheep to be herded into the stable.  There was an additional gate positioned across the stable door.  This gate was not hinged.  It was secured to the stable only by a chain.  The pursuer stood on the bottom rail of the gate in order to remove the chain and move the additional gate.  However, the gate toppled over onto the pursuer, crushing him under the weight of the gate.  The pursuer sustained serious injuries including a mild traumatic brain injury. 

The pursuer’s claimed that Mr & Mrs Imrie were in breach of their duty of care under s 2(1) of the Occupiers (Scotland) Act 1960, and at Common Law. 

Mr & Mrs Imrie argued that the gate to the race had remained closed and that the gate involved in the pursuer’s accident was located on the opposite of the race from the stable.  The Imries argued that the gate in question had not presented a danger to the pursuer and there had been no reason to suppose that it might fall and injure someone. 

It was held that the accident occurred after Mrs Imrie entered the stable and the pursuer had sustained injury as a result of the gate falling onto him causing him to fall backwards, striking his head on the concrete. 

Further it was held that Mrs Imrie was in a position to take whatever steps necessary to ensure that she fulfilled her duty of care as provided under s 2(1) of the 1960 Act and Mr & Mrs Imrie were found to be occupiers of the farm for the purposes of the 1960 Act.

It was noted that Mr Imrie had not been in breach of his duties under the 1960 Act.  He was unaware of the presence of the pursuer on the farm on the day on his accident and given that he was aware that the gate was secure, Mr Imrie had no reason to anticipate that the gate may fall and injure someone. 

Mrs Imrie, however, had taken charge of the pursuer and had accepted responsibility for his care.  She accepted that the gate presented a danger to the pursuer should he enter the race.  It was therefore held that Mrs Imrie had a duty to take reasonable care that the pursuer did not enter the race and become exposed to a foreseeable danger.  By leaving the pursuer unattended and unsupervised, Mrs Imrie had failed in her duty of care to him.  In leaving the pursuer unsupervised for an what was deemed to be an unreasonably long period, with a foreseeable risk that within such time the pursuer might suffer an accident, Mrs Imrie had been negligent in terms of the 1960 Act and she had been further negligent at Common Law.

Contributory Negligence was argued by Mr & Mrs Imrie.  The pursuer was aware of the express instructions given to him by Mrs Imrie.  He knew that he ought to have complied with those instructions.  He knew that it had been dangerous to climb on the gate and to attempt to remove the chain.  It was noted that at the time of the pursuer’s accident, he was 8 years old and contributory negligence was assessed at 25%.

Given the mild traumatic brain injury (bordering on moderate) suffered by the pursuer, and the permanent neuropsychological deficits, his employment choices and future earning capacity had been reduced.  Considering the pursuer’s young age, the injuries sustained, continuing disabilities and the effects on his employability, damages were awarded at £325,976.

The property on which the pursuer was being cared for in this case is perhaps more unusual and certain dangers would have been present there that would not arise in a domestic, household setting, but it does raise awareness of what can happen if an accident occurs while a child is in your care.  Adequate supervision is key – you can never be too careful!

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