Circumstances of accident
Ellie lived in a former manse next to a disused graveyard. Ellie who was 6 at the time was playing next to an old gravestone. It fell over, breaking her leg.
Who was responsible for the gravestone?
This needed some research. There appeared to be three possibilities:-
- Ownership of the gravestone itself appeared to remain with the descendants of the person buried
- The graveyard contained several historic Pictish stones and responsibility for these lay with Historic Scotland.
- The Local Authority who owned the graveyard itself if not the gravestones.
How we helped our client
We had to undertake a lot of research. It wasn’t possible to trace the descendants of the buried person. Our research indicated that Historic Scotland were only responsible for the Pictish stones and nothing else in the graveyard. In terms of the Occupier’s Liability (Scotland) Act 1960 the Local Authority had a duty to maintain the graveyard so that it was safe for visitors. This duty extended to gravestones which were in danger of falling over. We instructed a surveyor’s report which indicated the gravestone had previously cracked and had been repaired. The repair was poorly done. Any reasonable inspection of the gravestone would have indicated that it was in danger of falling over. The local authority had a duty to inspect the gravestones at least annually. We intimated a claim to the Local Authority. Liability was denied.
Court action
We raised a court action against the Local Authority. Liability to maintain the graveyard was then admitted but those acting for the Local Authority tried to argue that Ellie was partly to blame and/or that her mother should have kept her away from the graveyard. We were able to successfully deal with these arguments and then agreed a settlement to the action.
Settlement
Settlement with a value of £10,000 was agreed.
