CRAIG ANDERSON AGAINST (FIRST) JOHN IMRIE AND (SECOND) ANTIONETTE IMRIE
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 171
PD53/14
OPINION OF LORD PENTLAND
In the cause
CRAIG ANDERSON
Pursuer
against
(FIRST) JOHN IMRIE AND (SECOND) ANTOINETTE IMRIE
Defenders
Pursuer: Skinner, Drummond Miller LLP
Defender: Springham QC, BTO Solicitors LLP
8 December 2016
Introduction
[1] On 30 June 2003, when he was eight years old, the pursuer, who is now twenty-one, was seriously injured in an accident at Hillhead Farm; the farm is located near the village of Torrance in 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 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 case came before me for proof on liability and quantum of damages. At the proof the pursuer gave evidence in support of his case. He led evidence from: his mother, Mrs Irene Anderson; his father, Mr Ian Anderson; his older brother, Mr Mark Anderson; Dr Daniel Connolly, a consultant paediatric neuroradiologist; Dr Mary O’Regan, a consultant paediatric neurologist; Dr Liam Dorris, a consultant paediatric neuropsychologist; Mr Peter Davies, an employment consultant; and Mr Edward Doull, solicitor.
[3] The defenders each gave evidence at the proof. In addition, they led evidence from: three teachers employed at Baldernock Primary School in Torrance – Mrs Roslyn Michie, Mrs Penelope Bonnington and Mrs Avril Meldrum; Dr Ram Kumar, a consultant paediatric neurologist; and Dr Jonathan Reed, a consultant clinical psychologist and paediatric neuropsychologist.
Hillhead Farm
[4] The first defender explained that at the time of the accident Hillhead Farm extended to about one hundred acres. His late father 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. About half the animals on the farm were cattle and about half were sheep.
[5] Under reference to a plan (7/28/1 of process), to which he added some helpful annotations in the course of his evidence, Mr Imrie explained the main features of the layout of the farm at the time of the accident. His account was in line with that given by Mrs Imrie. Ultimately, I did not understand the Imries’ evidence about the layout of the farm to be disputed. For present purposes it is sufficient to note that there were various farm buildings constructed around a central courtyard. The farmhouse was on the south side of the courtyard. Immediately to the east of the farmhouse there was an iron gate giving 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 relatively small area used as a race or livestock crush. There was no dispute that this was where the pursuer’s accident occurred. There were gates at both the southern and the northern ends of the race. One could enter the race from the courtyard by means of the southern gate. It was a typical farmyard metal gate with horizontal spars; the type of gate that is frequently found on a farm. Mr Imrie said that it was about two and a half meters in length and around one and a half meters high. It was an awkward gate to open and had to be lifted slightly off the ground to achieve this. The gate at the northern end of the race gave access to a pen. The race had a barrier forming a wall on its west side; this was constructed from panels with a steel crash barrier fixed on top of them. It was slightly less than 2 meters high. The east side of the race was formed by the stable already mentioned. The race was thus an enclosed area. The pen just to the north of the race contained a number of gates and another livestock crush. Beyond the pen there were fields. On the northern side of the courtyard there was an enclosed area used as a midden. On the courtyard’s west side there were other farm outbuildings; they included a second stable.
[6] It is necessary also to mention that to the east of the complex of farm buildings I have just described there was another field. Mr and Mrs Imrie explained that this was sometimes used for holding and grazing cattle and sheep. The field was enclosed at different sections of its circumference by rails, a hedge and a dry stone dyke. To reach the field from the courtyard it was necessary to go through the courtyard gate leading to the private road, then through a double gate and finally through the gate giving access to the field itself. It was about one hundred meters from the courtyard to the field I have just described. The field extended to about three acres in area.
How did the accident happen?
[7] At the proof the evidence about the circumstances in which the accident occurred came mainly from the pursuer and Mrs Imrie. On certain points, as I shall shortly explain, their recollections of the accident differed.
[8] The pursuer said in evidence that his mother had arranged with Mrs Imrie for him to go to the farm to play with Ben, the defenders’ five-year-old son. He and Ben were at the same school (Baldernock Primary School) in the locality and their families were friendly. Mark Anderson recalled having been to the farm on many occasions to play with Ben’s older brother, Matthew. Mrs Anderson spoke to there having been numerous family visits to the farm.
[9] The pursuer’s recollection and that of his mother was that Mrs Imrie drove him to the farm. The arrangement, insofar as the pursuer recalled it, was that Mrs Imrie was to look after Ben and the pursuer so as to allow Mrs Anderson to take Mark and Matthew to football practice and to collect them afterwards. The pursuer said that he had visited the farm previously and that he knew his way around it. Mrs Imrie was supposed to be looking after the boys, but the pursuer’s recollection was that they were mainly left to do their own thing – according to the pursuer, to their own devices. Initially they played together in the courtyard, but there came a stage when they decided to leave the courtyard and go into the field to the east of the farm buildings to run around and play football. The pursuer recalled there having been a few sheep in the field; the boys thought that it would be fun to try to herd them into the stable adjacent to the race. The pursuer’s account was that he and Ben walked to the northern end of the field where the sheep were. Ben stayed in the field with the sheep while the pursuer went from the field into the race to open the gate to the stable. He did not recall there being any gates or other obstacles between the field and the race; he said that he gained access to the race without difficulty. The pursuer entered the race through the gate at its northern end. Once he was in the race the pursuer saw that there was a gate positioned across the doorway to the stable. The gate was attached to the stable by a chain, or perhaps a rope, at the top right hand corner of the gate. It was not hinged or connected in any way at the other end. The pursuer stood on one of the rails of the gate and reached up to detach or loosen the chain. As he did so, the gate toppled back crushing him beneath it. He struck his head against the concrete surface of the race. The pursuer did not believe that Ben witnessed the accident.
[10] Mrs Irene Anderson, the pursuer’s mother, gave evidence that some weeks after the accident she drove to the farm where she encountered Mr Imrie. She said that she saw the gate which had injured the pursuer leaning against the doorway to the stable next to the race. Mrs Anderson was disappointed to see it still in that position because following the accident she had asked Mr Imrie to bury the gate.
[11] Mrs Imrie’s recollection of events was that about mid-morning or perhaps lunchtime on the day of the accident Mrs Anderson arrived unexpectedly at the farm with the pursuer and asked her if she could look after him because she had to go to Kirkcaldy due to an emergency; Mrs Imrie could not recall the nature of the emergency. Mrs Imrie explained to Mrs Anderson that she had been planning to go out riding on her horse that day, but she said that she would be willing to keep the pursuer for a couple of hours. I had the impression from her evidence that Mrs Imrie was somewhat displeased to find that she unexpectedly had the pursuer on her hands that day. At the time the defenders had five children, the oldest of whom was fourteen. Mrs Imrie thought that the three oldest had gone elsewhere to play with friends. She had collected her mother to help her look after Ben and Tabitha, who was just one year old. Mr Imrie was working on a tractor about a mile from the farmhouse. It was a beautiful day and Mrs Imrie was looking forward to going out for a ride.
[12] Mrs Imrie’s evidence was that she told Ben and the pursuer that they could play in the farmhouse and in the courtyard, but that they must not go into the race or the nearby midden. These were dirty and unpleasant areas and not suitable for young children to play in. She made sure that the gate leading to the race from the courtyard was closed. She took some toys out of a shed and put them in the courtyard for the boys to play with. She said that she was going back and forth between the farmhouse and the courtyard to check that her mother was managing with the baby. She had her horse in the courtyard and was dressing it. This required her to go into the stable on the west side of the courtyard for items such as her tack box and brushes. The horse was fidgety so she may have had to put it into the stable at some point. Mrs Imrie acknowledged that she had not been constantly watching the boys. Her recollection was that some minutes after she had gone into the stable, Ben came in and told her that she had to come at once. She thought that she might just have been coming out of the stable when he approached her. She said that she did not think that she had been away long enough for anything to have happened. When she had last seen the boys, they had been playing in the courtyard. They had not been particularly close to the gate leading to the race from the courtyard. Mrs Imrie walked across to the gate and found that it was shut. She saw the pursuer lying on his back on the ground in the race with a heavy stock gate on top of him. He was moving, but was obviously injured. She managed to lift the gate off him and carried him back to the farmhouse. With the assistance of a man who was working elsewhere on the farm, she drove the pursuer to Stobhill hospital.
[13] Mrs Imrie explained that the gate which fell on the pursuer was a heavy metal stock gate used for working with livestock in the race. It was leaning against the barrier on the opposite side of the race from the stable and was securely chained to the barrier. It had always been in this position. It was not in the place described by the pursuer, namely across the doorway to the stable in the race. Mrs Imrie thought that there would have been chains at both ends of the top of the gate attaching it to the barrier. The pursuer must have stood on one of the lower spars of the gate and untied or tried to untie the chains. She presumed that this caused the gate to fall over on top of him. Mrs Imrie said that there had been a gate across the entrance to the stable, but it was not that gate which fell on the pursuer. The gate to the stable was not a heavy stock gate; it was a lighter gate with a wooden panel attached to it.
[14] In cross-examination Mrs Imrie said that just before the accident the pursuer had possibly been out of her sight for about 5 minutes. She thought that he must have climbed over the gate to get from the courtyard into the race. Ben told her that he had said to the pursuer not to go into the race, but the pursuer had insisted on doing so.
[15] In his evidence Mr Imrie said that when he got back to the farmhouse that evening and learned of the accident he went immediately to the race. He found the heavy stock gate lying flat on the concrete surface. His recollection was that the gate had been moved to the race four or five days before the accident because it was intended to make use of it in constructing a new pen. It had been left leaning against the barrier on the left hand side of the race; it was secured to the barrier by means of a chain and pin. The chain was wrapped around one of the uprights of the barrier and a link of the chain was then placed over the pin. The gate was chained to the barrier in this way so that it did not fall over and cause injury to persons or livestock. It was on the opposite side of the race from the stable. The gate which injured the pursuer was not where he had described it in his evidence. Mr Imrie described the gate which injured the pursuer as a stock gate; it was of heavy metal construction with eight horizontal spars across it. It was designed to be used for handling and controlling cattle or sheep. It had originally been used for a bull pen. The gate weighed about three hundred kilogrammes. I accept Mr Imrie’s evidence about the nature and position of the heavy stock gate and his explanation as to how it was attached to the barrier; he seemed to me to have a good recollection on these points based on his working knowledge of the farm. Where his evidence differed on any of these factual issues from that of Mrs Imrie, I prefer Mr Imrie’s account.
[16] Mr and Mrs Imrie were sure that the accident could not have occurred as described by the pursuer in his evidence. They provided a number of reasons in support of their view. First, the two boys could not have made their way to the race following the route the pursuer described without Mrs Imrie having noticed their absence from the courtyard. They would have had to go through or climb over various gates, fences and walls. They would have been away from the courtyard for a significant length of time and their absence for such a prolonged period would certainly have been noticed by her. Secondly, Mr Imrie explained that it would have been impossible for the boys to have done anything with the sheep; they were wild animals which could only be controlled by a skilled person working with dogs. Thirdly, it would have been a difficult endeavour for the pursuer to have got from the northern part of the field to the race by means of the route he described in his evidence; he would have had to overcome various obstacles in the form of gates and fences; this would have taken some time even if it had been feasible. Fourthly, both Mr and Mrs Imrie were clear in their evidence that the gate which fell on the pursuer had not been placed across the doorway to the stable in the race. The gate involved in the accident had been chained to the barrier on the side of the race opposite the stable. It would have made no sense for the stock gate to have been placed across the stable entrance; it was too heavy to be opened easily and would merely have impeded access. Whilst there was a gate at the stable doorway it was a different gate to the one that caused injury the pursuer. In my view, all the reasons given by Mr and Mrs Imrie are convincing and I accept their evidence on these points as accurate and reliable.
[17] There are other reasons to doubt whether the pursuer’s account of the accident can be regarded as reliable. He was only 8 years old at the time. His memory of the incident and his description of the farm seemed to me to be vague and uncertain. His evidence in court about the gate at the doorway to the stable in the race was unclear and unconvincing; for example, he could not recall whether it was attached to the stable by a chain or a rope and he could not say to what part of the stable structure it had been attached or give any explanation as to how it had been attached. He was unsure whether he had managed to undo the rope or chain when the gate fell back on him. He was unable to explain how it could have fallen if he had not succeeded in detaching it. At one point he said that the area where he was injured was part of the field; this makes no sense.
[18] There is a further reason for doubting the reliability of the pursuer’s account of the accident. He told Dr Mary O’Regan, the consultant paediatric neurologist who examined him in 2013, that he did not remember very much about the accident. When the pursuer was asked about this in evidence, he said that Dr O’Regan had misunderstood him and what he had meant was that he had no clear recollection of events after the accident. When she came to give evidence, Dr O’Regan did not think that she had been mistaken about what the pursuer had told her on this point; she took notes during the interview and her report was based on her notes. I found the evidence given by Dr O’Regan about the pursuer having told her that he had no clear recollection of the accident convincing; she seemed to me to have a good recollection of her interview with him and she noted down what he said at the time.
[19] I should add that there was some evidence about an account of the accident supplied by Mrs Anderson to Mr Doull, the family’s solicitor, at a meeting in June 2011 when the possibility of a claim was first being considered. The pursuer did not attend the meeting. This chapter of the evidence seems to me to be of no assistance in deciding how the accident occurred. I accept Mrs Anderson’s evidence that she was not sure about how the accident happened at the time of the meeting and that what she told Mr Doull was based on assumptions and speculation on her part.
[20] As I have explained, the pursuer and his mother had a different recollection from Mrs Imrie as to how the pursuer came to be in Mrs Imrie’s care on the day of the accident. The differences in recollection are hardly surprising in view of the amount of time that has elapsed since the accident. I do not find it necessary to resolve this particular discrepancy in the evidence. There is no dispute that Mrs Imrie was responsible for looking after the pursuer at the time of the accident.
[21] I have reached the conclusion, ultimately without great difficulty, that the accident did not happen in the way described by the pursuer in his evidence and averred by him in his pleadings. In my view, it is improbable that Mrs Imrie would have allowed the pursuer and her five-year-old son to leave the courtyard to play in the field or elsewhere on the farm. She stressed (and I accept) that she was well aware that the farm could be a dangerous place for children. Mrs Imrie said (and again I accept her evidence on the point) that she had heard in the local community that the pursuer was something of a loose cannon. She therefore made sure that the courtyard gate leading to the road was closed. It seems to me that it is unlikely that the pursuer and Ben could have got out of the courtyard without Mrs Imrie becoming aware fairly quickly that they had gone. In any event, if the boys had gone into the field and spent some time there as the pursuer claimed, it is inevitable that Mrs Imrie would have noticed that they were no longer playing in the courtyard and would have done something about it.
[22] I accept the evidence given by Mr and Mrs Imrie about the position of the gate which fell on the pursuer. I find that the heavy stock gate was not in the position described by the pursuer in his evidence. I found Mr Imrie’s evidence explaining the manner in which the heavy stock gate was secured to the barrier in the race to be convincing and to make sense. I acknowledge that there is some discrepancy between the recollections of the defenders as to how long the gate had been in that position before the accident, but this does not detract from the substance of their evidence as to its location at the time of the accident; on that aspect, their accounts were entirely consistent. I should add that I do not accept the evidence given by Mrs Anderson about seeing the stock gate leaning against the stable on her visit to the farm some weeks after the accident. At that time Mrs Anderson was (understandably) still in a state of considerable distress and upset following the accident. In the circumstances, I do not consider her evidence on that particular point to be reliable.
[23] In my opinion, the accident probably happened in the following way. The pursuer and Ben were playing together in the courtyard. Mrs Imrie was focussed on grooming her horse as they were playing. She went into the stable on the west side of the courtyard to get something. While she was in the stable, the pursuer managed to climb over the gate separating the courtyard from the race. Once he was in the race he climbed onto the stock gate attached to the barrier. He lifted the chain off the pin causing the gate to become detached from the barrier. The gate then over-balanced on top of the pursuer causing him to fall back and strike his head against the concrete surface of the race. He ended up lying on his back on the ground with the gate on top of him.
[24] It follows from the findings I have made that the pursuer has not proved that the accident occurred in the way set out in his pleadings. Counsel for the defenders accepted, however, that this could not be the end of the matter. She acknowledged that even if I were to hold that the accident happened in the way that the defenders considered it must have done, it would still be open to the court to find that the pursuer had established liability against them. In my view, counsel was clearly correct in the approach she adopted on this point.
Were the defenders the occupiers of Hillhead Farm?
[25] Under section 1(1) of the 1960 Act the duty of care imposed by section 2(1) applies to ‘a person occupying or having control of land or other premises’. The pursuer claims that the defenders were occupiers of Hillhead Farm at the time of the accident and that they were in breach of the duty of care owed to him by them as occupiers. The first question which arises is accordingly whether the pursuer has proved that at the material time the defenders were occupiers of the farm (or whether one of them was an occupier). As the Lord Ordinary (Reed) observed in Gallagher v Kleinwort Benson (Trustees) Ltd and others 2003 SCLR 384, at paragraph [124], the “control” of premises which brings a person within the ambit of section 2(1) of the 1960 Act is such control of the premises as enables that person lawfully to take the steps which are necessary to fulfil the duty of care imposed by that section. A person is likely to be treated as 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 (Wheat v E Lacon & Co Ltd [1996] AC 552, per Lord Denning at 577 – 579).
[26] In the present case the undisputed evidence was that the defenders had lived on Hillhead Farm as a family since 1992. There is no doubt that they occupied the farm in the sense that they lived there. According to the evidence given by the first defender (which was not challenged on the point), the farm was owned by his late father, who lived elsewhere. Mr Imrie said that he was employed by his father to do general farm work and that this arrangement was properly reflected in the farm’s books and records; no documentary evidence to substantiate the existence of a contract of employment was produced, however. Counsel for the pursuer took and maintained an objection to the evidence that the first defender was employed on the basis that this was not explicitly referred to in the defenders’ pleadings. In my opinion, the pleadings were sufficient to allow this evidence to be led; the legal basis of the defenders’ occupation of the farm and the question as to whether they were its owners or occupiers were clearly put in issue in the defences. In any event, a number of other witnesses were asked without objection about whether they understood the position to be that the first defender “worked the farm”. In the whole circumstances, evidence explaining the basis on which the first defender lived and worked on the farm was pertinent and should, I consider, be admitted. I repel the objection.
[27] As I understood the first defender’s evidence, his position was that his father would decide on matters concerning the running, operation and management of the farm because he was the sole proprietor of the farming business carried out there and on his other farms in the same locality. Thus Mr Imrie senior would decide if new equipment should be purchased or if the layout of the farm should be changed.
[28] Although the evidence on the point is slender, I am prepared to accept that at the time of the accident the first defender was employed by his late father to work at the farm. His status as an employee does not, however, necessarily mean that he cannot at the same time have been an occupier of the farm for the purposes of the 1960 Act. There was ample evidence that the defenders had practical and effective control of the entire farm on a day to day basis. It was their family home and as such clearly far more than a mere place of work. Mrs Anderson spoke to occasions when the defenders invited the Andersons to visit the farm for social engagements. There was, for example, evidence from Mrs Anderson and from Mark Anderson that the defenders arranged football matches for birthday parties on one of the fields. Mark Anderson said that the defenders allowed him to play in all parts of the farm. He recalled playing in the farm buildings and playing football in the fields. It clearly appeared to the Andersons that the defenders were in charge of what happened at the farm and were free to come and go as they pleased anywhere on the farm. I accept the evidence given on these points by Mrs Anderson and by Mark Anderson. The impression I had throughout the first defender’s evidence was that he had the authority to take any necessary decisions about practical matters affecting the farm, such as where gates should be positioned and where visitors should be allowed to go. He acknowledged in cross-examination that he had the power to make changes for safety reasons; for example, by filling in holes or dealing with other potential dangers. The second defender accepted that on the day of the accident it was her responsibility to see that all the relevant gates were closed and that the boys were restricted to playing in parts of the farm where it was safe for them to do so. She told them that the race and the midden were out of bounds. She clearly regarded it as her duty to prevent the boys from venturing to any part of the farm that might be dangerous. In this state of the evidence it seems to me that both of the defenders were in a position to take whatever steps were necessary to ensure that the duty of care imposed under section 2(1) of the 1960 Act was fulfilled. Accordingly, I hold them to have been occupiers at the material time for the purposes of the 1960 Act.
Liability under the 1960 Act
[29] The next issue is whether, on the evidence, the defenders complied with the duties incumbent on them as occupiers under the 1960 Act. According to section 2(1), the care which the defenders as occupiers required to show towards the pursuer:
“in respect of dangers … due to the state of the premises or to anything done or omitted to be done on them was such care as in all the circumstances of the case (was) reasonable to see that (the pursuer) will not suffer injury or damage by reason of any such danger …”
[30] As is well-known, the fundamental aim of the 1960 Act was to restore a broad test of reasonableness to the law governing the liability of occupiers to those coming onto land or other premises (Dawson v Page 2013 SC 432 at paragraph [14]). The purpose of section 2(1) is to establish the degree of care to be shown by an occupier. The extent of the care which an occupier must show is reasonable care. Reasonableness is to be evaluated in the light of all the circumstances of the case. In McGlone v British Railways Board 1966 SC (HL) 1, at 16, Lord Guest observed that what is reasonable in this context must be very largely a question of fact.
[31] In considering the liability of the defenders to the pursuer in the present case, it seems to me to be necessary to distinguish between the positions of the two defenders. So far as Mr Imrie is concerned, the evidence shows that he was not involved in the arrangements whereby the pursuer came to be visiting the farm on the day of the accident. He was working about a mile away from the farmhouse throughout the day and did not return until after the accident had occurred. There is nothing in the evidence to suggest that he even knew that the pursuer had come to play at the farm that day. He had no reason to expect that the pursuer might gain access to the race by climbing over the gate from the courtyard and proceeding to detach the heavy stock gate from the barrier thereby causing it to fall on him. There was no evidence that any similar incident had previously occurred; nothing like this had happened to any of the Imries’ children. I consider that it was reasonable for Mr Imrie to proceed on the basis that, having secured the stock gate to the barrier, there was no reason to suppose that it might topple over and injure someone. He had no reason to foresee that anyone might interfere with it. He had no reason to expect that the pursuer would be playing in the race. In the circumstances, I conclude that the first defender was not in breach of the duty he owed as an occupier of the farm to the pursuer.
[32] In my opinion, different factors come into play when one considers the position of the second defender, Mrs Imrie. In contrast to her husband, Mrs Imrie had assumed responsibility for looking after the pursuer on the day of the accident. She was responsible for him in the absence of his mother and was clearly in loco parentis. Mrs Imrie said that she was well aware that the farm could be a dangerous place for children; she accepted that it presented various risks and dangers to children and that it was important to keep a close watch on them to ensure that they did not have an accident. That is no doubt why she took steps to tell the boys to remain in the courtyard; that meant that she could keep a watchful eye on them. Mrs Imrie accepted in her evidence that she had gone into the stable and that the boys were, therefore, out of her sight for a period of time. She could not be precise as to the length of this period of time, but thought that it was some minutes; in cross-examination she accepted that it could have been as long as five minutes. It seems to me that the boys must indeed have been out of Mrs Imrie’s sight for a period of at least several minutes. There required to be sufficient time for the pursuer to have approached the gate in the courtyard giving access to the race, to have managed to climb over it into the race, to have clambered up onto the heavy stock gate; to have lifted the chain off the pin and succeeded in detaching the gate from the barrier, thereby bringing the gate down on himself. If Mrs Imrie had seen the pursuer attempting to take any of these steps she would certainly have intervened immediately. I conclude that she did not see anything of the sequence of events leading up to the accident. In her evidence Mrs Imrie frankly accepted that the heavy stock gate might seem to a child of the pursuer’s young age to be an alluring item; she agreed that for young boys the prospect of climbing on such a gate might be attractive. She also acknowledged that a child of the pursuer’s age might be intrigued by a metal chain and be tempted to interfere with it. It seems to me that Mrs Imrie was clearly correct in relation to these points; they are really just matters of common sense that any reasonable adult with some experience of young children would be expected to know. Counsel for the defenders submitted, under reference to the opinion of the Lord Ordinary (Glennie) in Dawson v Page 2012 Rep LR 56 at paragraphs 22, 26 and 27, that the heavy stock gate did not in the circumstances constitute a danger due to the state of the premises since there was no reason to suppose that it was liable to fall and injure anyone. In my opinion, that submission is irreconcilable with Mrs Imrie’s evidence; her testimony amounts to an acceptance that the gate presented a danger to a child of the pursuer’s age if he got into the race. Developing this a little further, it seems to me that the correct analysis is not to ask whether the heavy metal stock gate constituted a danger in an abstract sense. The real question is whether in the particular circumstances of a young child who might find the prospect of entering the race and playing on the gate to be irresistible, the gate presented a foreseeable risk of causing injury. In my opinion, it did.
[33] In my judgment, it is fair to conclude that Mrs Imrie ought to have foreseen that if the pursuer managed to get into the race he might injure himself by interfering in some way with the heavy stock gate. It follows, as it seems to me, that she had a duty to take reasonable care as an occupier to see that the pursuer did not get into the race. Like every other reasonable adult, Mrs Imrie understood that young boys do not always abide by warnings and instructions. In my opinion, the evidence shows that Mrs Imrie did not take sufficient care to ensure that the pursuer was not injured in the race. I conclude that she allowed him to be out of her sight and beyond her supervision for an unreasonably long period of time in the circumstances prevailing that day. In my judgment he must have been out of her sight for at least several minutes. For a child of eight in a potentially perilous environment, such as the farm occupied by the defenders, that was dangerously long. There was, in my view, a foreseeable risk that within such a timeframe the pursuer would suffer an accident in the race. The precise mechanism of the accident does not, of course, require to have been foreseen (Hughes v Lord Advocate 1963 SC (HL) 31). There was a foreseeable danger that the pursuer would suffer injury on the farm if he was not sufficiently supervised by an adult. The evidence shows, in my opinion, that the accident happened because he was not properly supervised. In these circumstances, I consider that Mrs Imrie failed in the duty of care she owed to the pursuer under and in terms of section 2(1) of the 1960 Act.
Duty of care at common law
[34] In my opinion, the second defender, Mrs Imrie, was also negligent at common law because she failed to take reasonable care to supervise the pursuer adequately on the day of the accident. I acknowledge that for the reasons given in cases such as Surtrees v The Royal Borough of Kingston Upon Thames [1992] PIQR P101 and Harris v Perry and others [2009] 1 WLR 19 the court should not be unduly critical of parents and those in the position of parents in regard to the exercise of their responsibilities towards children in their care. It is, of course, impossible to preclude all risk that children will injure themselves or each other when playing together. There is no absolute rule, however. In Harris Lord Phillips of Worth Matravers CJ said this at paragraph 34:
“Some circumstances or activities may, however, involve an unacceptable risk to children unless they are subject to supervision, or even constant surveillance. Adults who expose children to such circumstances or activities are likely to be held responsible for ensuring that they are subject to such supervision or surveillance as they know, or ought to know, is necessary to restrict the risk to an acceptable level.”
[35] For the reasons I have already given in relation to the case against the second defender under the 1960 Act, I am satisfied that Mrs Imrie failed to ensure that the pursuer was subject to such supervision as she knew was necessary to restrict the risk of injury to an acceptable level. She failed, in my opinion, to take reasonable care to see that he did not get into the race and injure himself.
[36] As to the case of common law fault directed against the first defender, there is no basis upon which he could be held to have been in breach of a duty of care to the pursuer.
[37] It follows that the first defender must be assoilzied. It is only the second defender who is liable for the accident.
[38] There is one further point I should deal with at this stage. Counsel for the defenders objected to the evidence given by Mark Anderson that he was allowed by the defenders to play unsupervised when he visited the farm as a child. There was no notice given in the pursuer’s pleadings of a case based on an alleged habitual or repeated failure by the defenders to supervise visiting children. I sustain the objection on this ground. The evidence was, in any event, vague and lacking in any convincing detail. I would not have attached any weight to it.
Contributory Negligence
[39] This is very much a matter of impression, as counsel on both sides accepted. I note in passing that a defence of sole fault was pleaded, but this was not insisted in. A number of decided cases involving children were cited to me in which findings of contributory negligence were made, but I did not find any of them to be of assistance. The issue turns on the facts and circumstances of this particular case.
[40] In my opinion, this is a case in which it is right to hold that the pursuer was partly to blame for the accident. I recognise, of course, that he was eight years old at the time, but nonetheless he would have been aware that he should comply with the instructions Mrs Imrie gave him not to leave the courtyard and, in particular, not to go into the race. The pursuer must have appreciated that the race was out of bounds and was not somewhere he was allowed to play. I consider also that the pursuer would have had sufficient understanding to realise that it was dangerous to climb onto and interfere with the heavy stock gate by detaching it from the barrier in the race. In the circumstances, I consider that the pursuer should be found twenty-five per cent to blame for the accident.
Quantum of damages
(i) solatium
[41] There was no dispute as to the nature of the injuries suffered by the pursuer. The evidence of Dr Connolly, Dr O’Regan and Dr Kumar showed that the pursuer sustained multiple fractures within the left side of the base of his skull, the left temporal lobe, the sphenoid bone and the right maxilla. In addition, there was a fracture through the right frontal bone. There was a small haematoma within the left occipital lobe. This combination of injuries is appropriately classified as a complicated mild traumatic brain injury; it was at the borderline of being categorised at the next highest level of severity, namely as a moderate traumatic brain injury.
[42] The pursuer was first taken to Stobhill Hospital where his Glasgow Coma Scale (‘GCS’) assessment was 14; he was noted to be drowsy. He was transferred to Yorkhill Hospital where his GCS was 15. He appeared to be oriented to verbal commands; there were no focal neurological deficits. He was then transferred to the Southern General Hospital in Glasgow where he was treated conservatively for the next eighteen days. Three days after the accident the pursuer was complaining of a severe headache. He had leakage of cerebral spinal fluid from his right ear and nostrils; this had ceased by the time he was discharged.
[43] Mr and Mrs Anderson and Mark Anderson gave convincing evidence about the changes in the pursuer’s personality and behaviour after the accident. He became more argumentative, short-tempered and aggressive, particularly towards his younger brother. He complained of headaches. In November 2003 (four months after the accident) the pursuer was reviewed by a consultant paediatric neurosurgeon at the Southern General Hospital. She noted that he appeared to have made a good recovery and was back at school. He was recorded to be performing at his previous standard in most subjects. He was bright and alert and had no focal motor or cranial nerve deficits.
[44] By the time of a review appointment in July 2004 Mr and Mrs Anderson reported that there had been significant improvement with regard to the pursuer’s patience, temper and concentration. They reported that he still had occasional severe headaches; these could come on for no reason, last a while, and then disappear. The view of the specialist registrar in neurosurgery was that these were probably post-traumatic headaches. It was explained to the pursuer’s parents that post-traumatic headaches could last a long time and could occasionally be permanent.
[45] Dr Connolly explained that magnetic resonance scanning carried out on 1 July 2015 showed evidence of permanent damage to the pursuer’s brain. There was focal encephalomalacia (softening or loss of brain tissue) with hemosiderin staining. The focal encephalomalacia is likely to relate to the evolution in appearance of the contusion to the brain. The scan showed a left occipital lobe lesion and a small left cerebellar lesion underlying the area of occipital skull fracture. Given the permanent damage demonstrated on the MRI brain scan, Dr Connolly considered it to be likely that there will have been lasting damage to cognitive function. I accept Dr Connolly’s evidence on that point.
[46] The pursuer and his parents confirmed in their evidence that he had developed headaches following the accident. Sometimes these became migrainous and caused fatigue and sleeping difficulties. Mr Anderson explained (and I accept his evidence on the point) that the pursuer learned to accept and deal with the headaches in his own way; he would sometimes take Migraleve, a non-prescription medication. The headaches were particularly bad when the pursuer was stressed, such as when he was studying for exams in secondary school. The family did not seek further medical assistance for the headaches until 2016. Dr Kumar (a highly impressive witness) said that this was not unusual in his experience; as he put it, families vary widely in their health-seeking behaviour. There is no reference to headaches in the school records, but this does not seem to me to be important; the pursuer was dealing with the headaches as best he could in his own way. Dr Kumar’s opinion was that the headaches should be considered as a persistent and disabling, though not necessarily permanent, neurological impairment caused by the brain injury. I understood that Dr O’Regan was of the same view. In the circumstances, I reject the defenders’ argument that there is no proof that the pursuer has suffered persistent headaches attributable to the accident. There is abundant evidence that he has in fact done so.
[47] Dr Kumar explained that there are numerous possible interventions, both medical and non-medical, for headaches, none of which the pursuer has yet tried. He was of the view that the headaches had not been adequately assessed and treated. He provided a lengthy list of possible treatments. He was reasonably optimistic that the headaches could be improved, at least to the point where the pursuer is able to manage them more effectively. Again, I accept Dr Kumar’s opinion on this issue.
[48] As Dr Dorris and Dr Reed acknowledged, there was ultimately not a great deal of difference between the final results of their neuropsychological assessments. It seemed to me that Dr Reed’s testing was more thorough and comprehensive than that of his counterpart and his overall approach somewhat more measured; for example, Dr Dorris did not use a standard effort test for the purposes of his first report; he expressed an opinion on diminution of employment prospects without having seen the pursuer’s school records; and he used a children’s memory test instead of the adult version. In the few areas where there is a difference of view between these expert witnesses, I prefer the evidence of Dr Reed. It was Dr Reed’s opinion that the pursuer has a number of difficulties resulting from his injuries: he has weaknesses in executive functioning in terms of planning, organising and shifting from one way of thinking to another; in addition, his responses are inhibited. Dr Reed explained that these problems are often seen following brain injury. The pursuer also has mild to moderate attention problems and slow speed of visual processing. On the balance of probabilities, Dr Reed was prepared to accept that these difficulties were caused by the accident. There was, in Dr Reed’s view, some reduction in the range of occupations that would now be open to the pursuer; in particular, he would be more suited to self-employment in a practical area such as fence-building or gardening than to working with other people in an office in an employed capacity (I shall deal more fully with the effect of the accident on the pursuer’s earning potential in the next section of this judgment).
[49] I should add that I do not accept Dr O’Regan’s view that the pursuer has an increased risk of developing Parkinson’s disease. She accepted that she could not point to any research-based evidence to support her view on that point. She conceded that there was a range of opinion on the issue. Dr Kumar explained that the risk of developing Parkinson’s disease following a mild traumatic brain injury was a hypothesis that was not widely accepted. I prefer his evidence on the point to that of Dr O’Regan.
[50] In summary, I conclude that the evidence shows that the pursuer suffered a complicated mild traumatic brain injury on the borderline of a moderate injury. This has caused persistent headaches and has left him with the neuropsychological deficits to which I have referred. There is a reasonable prospect that the headaches will improve with further medical or other treatment.
[51] In my opinion, the circumstances of the present case are broadly in line with the type of injury classified as a less severe brain injury in chapter 3 of the Judicial College Guidelines, 13th edition (page 8, sub-paragraph (d)). The description given there involves a claimant who has made a good recovery and returned to work, although he has some persisting problems which may interfere with future work prospects. The pursuer’s case is, I think, somewhat more serious in the sense that his employment choices have been reduced. The bracket given (with the 10 per cent uplift recommended by Sir Rupert Jackson) is between £12,820 and £35,970 as at June 2015. Having regard to the pursuer’s young age and to the effect of his injuries on his employment options (as well as his continuing disabilities), I consider that a reasonable figure for solatium would be £40,000. After the twenty-five per cent deduction for contributory negligence the net figure is £30,000. Parties were agreed that one half of the award for solatium should be ascribed to the past. That seems to me to be reasonable.
[52] For reasons which I will shortly explain, no claim was intimated to the defenders until 14 July 2011. I consider that it would be reasonable to allow interest from that date. I shall award interest at four per cent per annum on £15,000 from 14 July 2011 until the date of decree. This amounts to £3,243.
(ii) future loss of earnings
[53] In their evidence, the pursuer and his parents explained that it was not until he was at secondary school and was studying for his public examinations that the full effects of the brain injury became apparent. It was because of their appreciation of the effects of the injury on the pursuer’s capacity to study that the family decided in 2011 to make a claim. Mr Davies observed that it was, in his experience, not uncommon for the effects of brain injury to become manifest at the stage when independent study for certificated examinations becomes necessary. The pursuer has the advantage of coming from an industrious and loving family with a strong work ethic. His father is a successful civil engineer and his mother is a qualified bookkeeper and administrator. His elder brother, Mark, is a graduate civil engineer. The pursuer’s younger brother is in second year at college and hopes to go to University to study civil engineering. The pursuer said that he worked hard for his exams because he understood that it was important to do so (his parents confirmed that he worked hard), but his results were disappointing. His headaches got worse when he was trying to concentrate on his studies. The pursuer obtained some Standard Grades and Highers and he passed Intermediate 2 in mathematics and some other subjects, but the school did not consider that he was a suitable candidate to put forward for Higher mathematics. In 2012 he went to Perth College where he obtained a Higher National Certificate in engineering. He had hoped to progress to a Higher National Diploma in engineering systems, but it became clear that this was beyond him and he had to drop out of the course after a short time.
[54] The unchallenged and impressive evidence from the teachers who had taught the pursuer at primary school and from the school records was that before the accident there were some weaknesses in his literacy skills whilst his mathematical abilities were somewhat above average. The teachers did not consider that he was as academically able as Mark, whom they recalled as being strong at mathematics. After the accident, there was no discernible drop in the pursuer’s performance at primary school. Mr Anderson said that he and Mrs Anderson accepted that the pursuer was of average academic ability, but they thought that he would do all right and that they expected him to have choices. It seemed to me that this summed up the position very well.
[55] I am sure that the pursuer did his best to work hard throughout his education. It is to his credit that he managed to hold down a number of part-time jobs – at McDonalds and at a local sports centre; at all of these he appears to have done well. After he had to give up his HND course, his father helped to find him employment with a local fencing contractor, but the pursuer struggled with this and was unable to manage the long hours when he had to work away from home. In 2015 with assistance and financial support from his parents, the pursuer began working as a self-employed gardener and landscaper. This suits him because he can control the amount of his working time. His mother does the bookkeeping. The records produced showed that the pursuer’s turnover for the year from July 2015 to June 2016 was in the region of £16,000. He drew about £100 per week as wages.
[56] The neuropsychologists agreed that the pursuer has a low average IQ. Dr Reed considered that the school reports showed that the pursuer had pre-existing weaknesses with literacy and some attention problems. It is unlikely that the injury resulted in literacy or verbal IQ problems. Dr Reed, whose opinion on the point I accept, explained that a brain injury of this type would not usually bring about any change in verbal capacity or literacy. The pursuer’s non-verbal abilities have consistently been assessed as being stronger than his verbal ones. I accept Dr Reed’s opinion that had the pursuer not been injured he would have been below the norm in literacy and verbal-based aspects of education. In line with the views expressed by Dr Reed, I consider it unlikely that the pursuer would have pursued a professional career had the accident not occurred. I acknowledge the pursuer’s strong family background, but I think that his father was well-founded in his evidence that the pursuer was about average in regard to his academic capabilities. He is not as academically gifted as his elder brother. I am satisfied that Dr Reed was correct in his opinion that the pursuer would probably have followed a more practically-based career than an academically-based professional one. I am not persuaded that the pursuer would have been able to qualify as a civil engineer.
[57] The pursuer’s gardening business is at an early stage. The pursuer has required considerable support from his parents in setting up and running the business. As he gets older and gains more experience I think that he will make a success of the business and will be able to develop it using his own talents. I believe that his prospects of doing so will be enhanced by treatment for his headaches and by neuropsychological therapy. The pursuer struck me as a personable young man with a strong desire to make the most of himself despite his continuing difficulties. I am satisfied that he will be able to work on a full-time basis, but he will probably not be able to earn as much as he would have been likely to do if he had not been injured. Mr Davies estimated that the pursuer might be capable of earning a net income of about £14,475 per year from gardening and landscaping work. I am prepared to adopt that as a reasonable figure for the pursuer’s residual earning capacity, having regard to the continuing effects of the brain injury described by Dr Reed.
[58] As to what the pursuer’s earnings would have been had the accident not occurred, I consider that it is reasonable to proceed on the footing that he would have been likely to earn the average income of a full-time male employee. Averaging out the median and mean data contained in the annual survey of hours and earnings for 2015 (Kemp & Kemp 36-105) yields a figure of £25,137 net per year. I shall take this as a reasonable estimate of what the pursuer’s annual net earnings would have been but for the accident.
[59] I should record at this point that counsel for the defenders submitted that there were too many imponderable factors to justify the use of a multiplier/multiplicand approach to the assessment of future loss of earnings. I acknowledge that, as is often the case, there are uncertainties, but I have the advantage of a good deal of evidence about the nature and effect of the pursuer’s injuries, his family background, his pre-accident educational history and his progress since the accident. In the circumstances, I am not persuaded that it would be inappropriate to assess damages by using a multiplier/multiplicand approach.
[60] There was very little between counsel as to the appropriate multiplier for the pursuer to retirement age. Taking a retirement age of 68, which seems to me to be reasonable, I shall apply a discounting factor of 0.88 in line with standard methodology. That results in a multiplier for the pursuer to retirement age of 23.68. Applying that multiplier to earnings of £25,137 net per year produces a figure for likely lifetime earnings but for the accident of £595,244. The discounted multiplier (using a factor of 0.55) to reflect the pursuer’s disabled state is 14.8. Applying that to the figure of £14,475 per year, which I have taken for the pursuer’s residual earning capacity, gives £214,230 for probable actual lifetime earnings. The difference is £381,014. Contributory negligence reduces that to £285,760. That is the sum I shall award for future loss of earnings.
(iii) cost of psychological therapy
[61] Dr Dorris and Dr Reed were in agreement that the pursuer would benefit from psychological therapy. I am satisfied that he would indeed be likely to do so. Dr Dorris estimated that the costs of such therapy would be £17,000 for a large number of sessions throughout the pursuer’s lifetime. Dr Reed took a more conservative approach and proposed fifteen sessions; the cost of these would amount to £2,625 using a rate of £175 per hour. I am not persuaded that the pursuer will need as much therapy as suggested by Dr Dorris. Counsel for the defenders submitted that a broad approach should be taken and a lump sum of £5,000 awarded. This seems to me to be reasonable. After deducting twenty-five per cent for contributory negligence, the award under this head is £3,750.
(iv) Services provided by Mrs Anderson
[62] There was very little evidence on this issue. I have no difficulty in accepting that Mrs Anderson had to look after the pursuer following the accident to a greater extent than would otherwise have been necessary. The pursuer went back to school on a part-time basis after the summer holidays. Counsel were agreed that in the circumstances only a broad view of this aspect of the claim could be taken. I shall allow £3,000. Contributory negligence reduces that to £2,250. I shall award interest at 8 per cent per year from 14 July 2011 until the date of decree. This comes to £973.
Conclusion
[63] For the reasons I have set out, I have assoilzied the first defender. I have found the second defender liable to make reparation to the pursuer in the total amount of £325,976. That figure is made up as follows:
| Solatium: | £30,000 |
| Interest on past solatium | £3,243 |
| Future loss of earnings: | £285,760 |
| Costs of psychological therapy: | £3,750 |
| Services provided by Mrs Anderson: | £2,250 |
| Interest on services: | £973 |
| Total: | £325,976 |
[64] I have reserved all questions of expenses.