17th March 2017

“EE-AYE-EE-AYE-OUCH”: Big moo-stake for family after failing to look after neighbour’s child on their own farm

Mum A is with her children at home.  Mum B suddenly drops in with her children.  The kids all know each other and often play together.  Mum B asks if Mum A can look after all the kids for a couple of hours while Mum B goes off to deal with some emergency or other.  Mum A is secretly somewhat annoyed as this is going to mess up her plans for the afternoon, but of course agrees.  Mum B is grateful and rushes off, leaving Mum A in charge of all the children.  This is a situation which must be familiar to many of us, and not just to Mums, but Dads, Uncles, Grannies and so on.

However, following the recent Court of Session decision of Anderson v Imrie, parents need to be aware of the responsibilities they may be loading onto their own shoulders by looking after other people’s children.

In the Anderson case, Mr and Mrs Imrie were the occupier of a farm.  In circumstances similar to those outlined above, Mrs Imrie found herself having to look after her neighbour’s eight year old son Craig, in addition to her own son Ben.  She let them play together in the courtyard, and kept a general sort of eye on them, popping in and out of the yard while she groomed a horse.  She told them not to leave the yard, and in particular not to climb over the gate leading to a part of the farm known as “the race”.  She made sure the gate was shut.  Eventually she went into the stable for a few minutes, possibly as long as five minutes, and took her eye off them for that length of time.  While she was in the stable Craig climbed over the gate into the race, and then climbed onto a disused gate which was leaning against a wall, attached to the wall by a chain.  He lifted the chain off its pin, whereupon the gate toppled over and fell on him, causing him serious head injuries and brain damage.  Thirteen years later, when he was an adult, he sued the Imries for compensation.

All occupiers owe a duty to visitors to take reasonable care to see they are not injured by dangers on the premises.  However, this is not an absolute duty, and the judge made a distinction between Mr and Mrs Imrie.  Regarding Mr Imrie, he was working a mile away at the time of the accident, and did not even know that Craig had visited.  He had secured the gate in the race by a pin and chain, and was entitled to think that this would be enough.  No accident had happened to any of the Imrie children as a result of this gate before.

The same could not be said of Mrs Imrie.  She obviously knew that Craig was on the premises.  She had assumed responsibility for looking after him, and he had something of a reputation as a “loose cannon”.  She knew that a farm could be a dangerous place for children, and that it was necessary to keep a close eye on them.  She knew that children do not always heed warnings.  She knew that it would be a temptation to an eight year old boy to climb over the yard gate and then onto the gate in the race, and a further temptation to fiddle with the chain attaching it to the pin.  She should have known that the gate presented a risk of injury.  With this knowledge, or assumed knowledge, she took her eye off the children for about five minutes, or at any rate enough time for Craig to get over the gate and into trouble.  Accordingly she was found to be liable to pay compensation.  Craig was also found not to have taken enough care for his own safety, so the compensation was reduced by 25%.  However, the amount which Mrs Imrie had to pay was still over £325,000, plus legal expenses.  This is not the kind of thing many people are insured against, although it may be different with farmers running a business, so it is certainly to be hoped that the Imries had some way of covering the horrendous bill and avoiding bankruptcy.

A hysterical reaction of “it’s not safe to mind the neighbour’s kids anymore!” would not really be justified with this case.  There were a lot of very special circumstances about it.  The farm was noted to be an unusually dangerous place, and climbing on gates would be a particular temptation to an active eight year old.  Perversely, the warning might have actually increased the temptation, like Brer Rabbit telling Brer Fox not to throw him into the briar patch.  If the children had been playing in a typical suburban garden it might all have been very different.  Nevertheless, as the judge said, if an adult is entrusted with children, he/she is in loco parentis, which brings into play all the duties of a parent.  Something to bear in mind next time Mum B pops in.

Richard Godden 
Partner – Dispute Resolution



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