Question 1
Lucy and Tom went to visit their friends Jason and Diane to see the new extension that Jason and Diane had been having built at the back of their house. It was a Sunday. Lucy and Tom took their young son, Robbie, with them. Robbie was 5 years old. The extension was not actually finished due to delays. There was still work going on, so the builders still had quite a lot of building materials lying around in the garden as well as old pipes, bricks, slates, rubble etc.
Diane complained that the builders had taken over the whole garden and house and she was really tired of it. She explained that she and Jason had actually moved out and were staying at her parents’ house – they had just come back that day to show Lucy and Tom the work so far, and to check on the progress of the build.
Whilst visiting, Tom went over onto his ankle on some of the rubble and fell into a concealed hole in the garden, breaking his leg. Jason had warned Tom about the hole as he went out through the patio doors to the garden but Tom didn’t hear him as Robbie was talking to him incessantly about whether he could go into Jason and Diane’s greenhouse.
The builders had put up a temporary wooden sign in the garden that said “any persons who enter these premises do so at their own risk”.
Robbie, despite having been warned by Jason not to go into the greenhouse, entered and ate some poisonous berries from a shrub growing there. The shrub was large and growing just inside the entrance to the greenhouse. The berries were red and looked quite like grapes or cherries. His parents were busy chatting to Diane and Jason and no one noticed he’d gone in.
Jason offered to drive Tom and Robbie to the hospital. Tom, whilst getting into Jason’s car, sustained serious head injuries from a slate blown from the roof of the next door neighbour, Grant’s, house. Jason had spoken to Grant a few days ago about the state of Grant’s roof. Grant had agreed it was due some maintenance and told Jason that he had kept meaning to get in touch with a slater but was very busy at work.
Tom’s head injuries triggered a rare degenerative disease in Tom which would only occur in 1% of the population. As a result Tom was confined to a wheelchair. He didn’t cope at all well with what had happened and suffered from depression. He lost his job as an accountant and was never able to work again.
Robbie was treated in hospital for consuming the poisonous berries, but passed away the following day.
Advise Lucy on who could be potentially liable for damages for the loss of her son, and the basis for and likelihood of, establishing liability, taking into account any relevant defences.
Advise Tom on his chances of recovering damages for the loss and injuries he has sustained.Explain and discuss the law that applies to the scenario in relation to Tom and advise on Tom’s chances of success if he were to bring an action AND against whom such an action should be brought.
In so doing, you will need to consider in particular (but not exclusively) the following – the existence of a duty of care; a breach of any duty of care; causation; remoteness of damage; and any relevant defences, in order to determine liability.
Advise Tom further – If Tom had only broken his leg and had been taken to hospital without incident, advise Tom on his chances of success if he were to bring an action to recover damages for the broken leg, the law under which he may be able to recover, AND against whom such an action could be brought.
Refer to relevant case and statutory authority in support of your answer.
WORD COUNT – 2000 words
It is a problem type scenario question.
Must refer primarily to Scottish cases and Scots law.
English cases if needed.
You must use case law and statutory authorities throughout where relevant.
All sources must be fully referenced by footnotes – footnotes be only used for referencing and further reading only.
Include Bibliography .
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