The Court of Session recently awarded damages of £325,000 to Craig Anderson who, in 2003 when he was 8 years old, was seriously injured as a result of having been crushed by a gate on a farm.

Mr and Mrs Imrie lived on Hillhead Farm with their children. On the day of the accident, Mrs Imrie had agreed to look after Craig. Mrs Imrie told Craig and her son that they must not leave the farmhouse or courtyard, but she did not constantly watch the children. While they were playing, Craig left the courtyard. After realising that Craig was not in the courtyard, Mrs Imrie found him in the race with a heavy stock gate on top of him. A court action was brought against Mr and Mrs Imrie for breach of duties owed under the Occupiers' Liability (Scotland) Act 1960.

Occupiers' liability

The 1960 Act imposes a duty on occupiers of premises to take reasonable care to prevent visitors suffering injury due to a hazard or danger on the premises. Premises may include land and property. The term occupier is used instead of owner given that day to day control of land and property may commonly be transferred (i.e. a lease).

Who was the occupier?

The question arose as to whether Mr and Mrs Imrie were 'occupiers' under the law. To qualify as an 'occupier', a person must be 'occupying or having control of land or other premises'. A person is likely to be considered an occupier if he has a sufficient degree of control over premises to be able to ensure their safety and to appreciate that a failure on his part to use reasonable care may result in injury to persons coming onto the premises. This is always a question of fact in the particular circumstances of the case.

Although Mr and Mrs Imrie lived on the farm, Mr Imrie's late father owned it. It was Mr Imrie's father who made decisions concerning the running, operation and management of the farm. Mr Imrie, however, was employed by his father to work on the farm. He had authority to make decisions about practical matters, such as where visitors would be permitted to go, and to make changes for safety reasons, including dealing with potential dangers.

Lord Pentland observed that the farm was clearly more than a place of work and Mr and Mrs Imrie were held to have 'practical and effective' control on a daily basis. Additional factors taken into account in coming to this conclusion included that the farm was the family home where Mr and Mrs Imrie held social engagements and could come and go as they pleased. It was also noted that, on the day in question, Mrs Imrie accepted that it was her responsibility to ensure that the relevant gates were closed and that the children were restricted to playing in parts of the farm that were safe. For all these reasons, Mr and Mrs Imrie were found to be occupiers in terms of the Act.

Did Mr and Mrs Imrie breach the law?

However, only Mrs Imrie was held to have failed in her duty of care to Craig. This was because Mr Imrie did not know of the arrangement for Craig to visit the farm, was working about a mile from the farmhouse on the day in question and, having secured the gate to a barrier, had no reason to expect that the gate might fall and injure someone.

By contrast, Mrs Imrie had assumed responsibility for looking after Craig and she ought to have foreseen that if he managed to enter the race there was a risk that he might injure himself by interfering with the gate. There was a foreseeable danger that Craig may suffer injury if not adequately supervised and Mrs Imrie failed in her duty to take care to avoid the danger.

So beware, farms have many alluring risks to children. Remember, even if you don't own the farm, you can still be considered in control of it. Take care to carry out repairs, minimise hazards and properly supervise your visitors!