As we all know, real life witches, ghosts, ghouls, goblins, spirits & poltergeists all emerge from other realms on Halloween and begin to try to haunt us. This spooky behaviour raises a very important legal question. What if Casper wasn’t so friendly as he appeared to be during the 1995 film? What if he gave you an almighty fright? What if he lured you into his haunted house and in your attempt to escape you fell and injured yourself? All sorts of scary behaviour could take place! Now ordinarily, if someone caused you injury, you may be able to raise a personal injury action in the Scottish courts. But, what about litigating against a ghost?
Surprisingly, there are no recorded cases that I can find involving litigious ghosts. Now putting aside the procedural difficulties of getting a Sheriff to take the oath from a witness in the witness box that you nor anyone else in the court will be able to see (and likely scary expression on the Sheriff’s face if you tried to do this). There are a number of problems with a personal injury suffered in a haunted house. Especially on Halloween.
Take people entering the threshold of Casper’s haunted house for example. Does he owe them a duty of care and is he subject to Section 2 of the Occupiers’ Liability (Scotland) Act 1960? On one hand he may be considered an occupier of the property but technically speaking, he is not alive so, he may be able to argue that he cannot legally occupy the property.
Assuming that Casper would be considered an occupier of the Haunted House, could he argue that anyone entering the Haunted House entered at his or her own risk? In theory, if he was successful in this, then he may not be responsible for any injuries they suffer as a result.
If he gave you an almighty fright and you had a heart attack, would he be able to escape liability based on the “thin skull rule”? Ordinarily, the thin skull rule means, for example, that if a person causes another person to fall and crack their skull during an accident but it turns out that the injured person has an unusually thin skull, the law dictates that the perpetrator cannot escape liability for the accident based on the thinness or otherwise of the injured person’s skull. In essence, the law says that you need to take people as you find them rather than based on an average or aggregate of others. As would be the case in non-supernatural instances, the law would not allow him to escape liability.
Overall, there are a number of problems with litigating against a spirit. Not to mention the problems with enforcing any court orders the Sheriff may pronounce against them. The best advice is to keep on Casper’s good side and it would be best not to visit him at his Haunted House. Especially on Halloween!