Latest news with #SheriffAppealCourt
Scotsman
2 days ago
- Scotsman
Appeal court decision has raised questions over liabilty claims
Andrew Gilmour expects further guidance will follow as cases addressing the issues proceed Sign up to our daily newsletter – Regular news stories and round-ups from around Scotland direct to your inbox Sign up Thank you for signing up! Did you know with a Digital Subscription to The Scotsman, you can get unlimited access to the website including our premium content, as well as benefiting from fewer ads, loyalty rewards and much more. Learn More Sorry, there seem to be some issues. Please try again later. Submitting... Every day, members of the public enter offices, shops, supermarkets, restaurants and gyms. An issue that has arisen of late is how the Scottish courts deal with accidents caused by the condition of something in such premises that is defective. In the case of McCormack v Fitness Limited, the Sheriff Appeal Court provided guidance on how to analyse and determine whether an occupier of premises containing defective items should be liable for such an accident. Advertisement Hide Ad Advertisement Hide Ad It has long been a feature of Scots Law that in certain circumstances, the maxim res ipsa loquitor could apply to an accident. The claimant should establish that the thing which caused damage was under the defender's management and control, and that the accident was of a type that does not ordinarily occur if proper care is taken. An inference of negligence is then accepted only if the defender can offer no explanation consistent with absence of fault on their part. Andrew Gilmour is a Partner, Horwich Farrelly In McCormack, the claimant was injured by a ragged edge on the outer rim of a weight plate in a gym that cut his hand when he tried to place it onto a shoulder press machine. How the damage to the plate occurred was unknown. At first instance, the court decided that res ipsa loquitor applied to the accident circumstances and found for the injured party. The view taken was that the gym owner could not provide a reasonable explanation for how the accident occurred without negligence. The court held the gym owner had exclusive management of the premises, controlling access by way of membership and subscriptions. The owner employed staff on reception and on the gym floor. Seeking to place a weight plate onto a machine should not ordinarily cause injury to a user. There was no evidence of any inspection of the plate on the morning of the accident and no faults were recorded. However, the appeal court decided the court had erred in focusing over the control exerted over the gym premises, rather than the weight plate itself. The court was bound to consider and decide the question in this way, as if there was no control over the thing that caused the accident, then res ipsa loquitor did not apply and liability would not be established. Advertisement Hide Ad Advertisement Hide Ad The court had regard to the well-established observation that the principle only applied where the incident suggests negligence on someone's part and, because of exclusive management and control in the defenders at the time when the negligence occurred, it can be presumed it was the defenders who were negligent. In this case, the free weights and shoulder press machine were not in the exclusive control of the gym. The gym was open to members of the public who had a membership or subscription to use the premises. Those members had free use of the weight plates during the course of their exercise. Therefore, the appeal court overturned the decision and absolved the gym from any liability, as the exclusive management and control over the weight plate had not been established. The decision raises questions about exclusive management and control of items in premises. Does the presence of members of the public mean that few items in the premises could be under such control? When should a claimant seek to establish a case based on a failure to take reasonable care, rather than risking establishing that res ipsa loquitor applies? A number of cases are addressing this issue and no doubt further guidance will follow.
Press and Journal
28-05-2025
- Press and Journal
Dangerous Drumnadrochit dog's owner loses appeal against conviction
A woman who claimed her German Shepherd was a 'good-natured' pet after it bit a delivery driver has lost a bid to overturn her conviction. Janet MacFarlane's canine, Diego, attacked the worker through a gap in the gate of her home in Drumnadrochit, on April 14 2023. Inverness Sheriff Court heard how the man needed stitches after the incident. She was charged with having a dog dangerously out of control following proceedings in September 2024. Sheriff Sara Matheson ordered Diego to be muzzled and kept on a lead and muzzled when in a public place – she also ordered MacFarlane to pay Diego's victim £600. The conviction prompted MacFarlane's legal team to go to the Sheriff Appeal Court in Edinburgh, where they argued that the judge failed to follow the correct legal tests in her decision to convict MacFarlane. The Sheriff Appeal Court heard that if Sheriff Matheson had followed the correct interpretation of the law, MacFarlane would have been acquitted. But in a written judgement issued by the court on Wednesday, Sheriff Principal Aisha Anwar KC, rejected defence arguments and upheld the conviction. Sheriff Principal Anwar, who sat with colleagues Appeal Sheriff Iain Fleming and Appeal Sheriff David Young KC, said their colleague had acted correctly. She added: 'We shall… refuse the appeal.' During proceedings, the delivery driver, who wasn't named in the judgement, told the court that when he arrived at the property the dog was initially called away by MacFarlane's husband. He said he did not notice the dog returning as he passed the parcel over to MacFarlane – but it was at this point that he was bitten through a gap in the gate. In evidence, the man recalled: 'I said to the lady: 'Your dog had just bitten me and she shrugged and walked away.'' The court heard that the entrance to MacFarlane's property featured three signs warning visitors about the four-legged residents, including one that said: 'Beware of the dog, it may bite, you have been warned.' She said six-year-old Diego was a 'beautiful, good-natured dog' who had 'never bitten anybody'. 'He is a more laying on his back with his belly getting tickled kind of dog,' she added. MacFarlane confirmed she had installed wire to block the gaps in the fence since the incident.
