New case on occupier's liability: Fegan v Highland Council

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Fegan v Highland Council [2007] CSIH 44 XA54/06
A decision in an interesting liability case appeal was given on 6th June 2007. The case was in the Court of Session on appeal from Wick Sheriff Court. Mrs Fegan claimed damages for serious personal injuries after falling from a cliff. She claimed that the Council should have erected a fence. The Sheriff had rejected her claim and this decision was upheld on appeal.

In delivering the Opinion of the Court, Lord Johnston said: “ The general law remains as stated in the somewhat historic cases [Stevenson against Glasgow Corporation 1908 SC1034 and Glasgow Corporation against Taylor [1922] 1 AC 44] to the effect that an occupier of land containing natural phenomena such as rivers or cliffs, which present obvious dangers, is not required to take precautions against persons becoming injured by reason of those dangers, unless there are special risks such as unusual or unseen sources of danger. The Court did not accept the argument put forward on behalf of Mrs Fegan that practice had changed since those cases were decided. Apart from the question of the expense of fencing, Lord Johnston said that many people would find fencing intrusive and objectionable except where there were particular dangers, as where there were areas of erosion and the path went very close to the edge. The question has to be one of degree and common sense'.

The Court found that the Sheriff who heard the evidence and inspected the site had been entitled to conclude that there were no special dangers at this particular location requiring the occupier to take precautions such as the erection of fencing.

For a full copy of the Court's decision see the Scottish Courts Service web site at:
http://www.scotcourts.gov.uk/opinions/2007CSIH44.html