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Lisa Wardle v. Scottish Borders Council, Sheriff Principal Edward F Bowen QC, Edinburgh Sheriff Court, 31st January 2011


The pursuer (and appellant) was a nine year old girl who climbed into the rafters of a shelter in the playground of her primary school where she fell and injured her wrist. The defenders (and respondents) were the local authority whom the pursuer sued for breach of s.2(1) of the Occupiers Liability (Scotland) Act 1960.

First Instance Proceedings
The pursuer submitted that the defenders knew or ought to have known there was a real risk that children would play within the shelter and attempt to use the rafters during play. In the circumstances they had a duty to take reasonable care to see that children could not gain access to the wooden rafters by boarding them up. The defenders submitted that the accident was wholly caused, or at least materially contributed to, by fault on the part of the child. The shelter was not inherently dangerous and staff were unaware of children having played on the rafters prior to the accident. At first instance the sheriff found for the defenders. The basis of the sheriff's conclusion was that the accident was not foreseeable to staff at the school. The pursuer appealed.

Appeal and Decision
The sheriff principal found for the pursuer and sustained the appeal. It was not necessary to prove that staff knew that children actually climbed into the rafters. The test was whether the accident could have been foreseen by an objective reasonably careful person. In this case the accident was foreseeable. The defenders had a duty of care towards the child under s.2(1) to take such care for her as was reasonable in all the circumstances. They ought to have rendered the exposed rafters inaccessible by putting up boarding but did not do so. Decree was awarded in the sum of £2,000 (inclusive of a 50% reduction of damages for contributory negligence).