Mind your head

"Mind your head..." the duties of occupiers to visitors

By BCR Law Partner Jeremy Heywood

Igrew up on a farm in the north of England. It was a great place to be a child - my siblings and I (my parents have six children) had hay stacks to climb on, a beck to swim in and float rafts on, trees to climb and all sorts of out-buildings to explore. It was great fun, but farms can be dangerous places. I was put in mind of this by a recent story from back home. The Deputy Head Teacher of my old school (Richmond School) was, it appears, tragically trampled to death by a herd of cows whilst out walking his dogs. “ In general, those

who occupy property are potentially liable to those who suffer injury whilst on that property. This is known as “occupiers’ liability” or “public liability”

Obviously, the details of this incident are still unknown and investigations are continuing. It got me thinking more generally about the dangers inherent on farms and what the obligations on farmers are.

In general, those who occupy property are potentially liable to those who suffer injury whilst on that property. This is known as “occupiers’ liability” or “public liability”. The basic principle is that an occupier of property owes a duty of care to those who visit that property to take reasonable precautions in response to reasonably foreseeable risks.

In England, the position in relation to lawful visitors is governed by the Occupiers’ Liability Act 1957 and that in relation to trespassers by the Occupiers’ Liability Act 1984. There is no equivalent legislation in Jersey. The Royal Court has held that Jersey has developed in a similar manner to the English statutory position and so the principles are broadly similar. English law (and presumably Jersey law) defines “premises” very widely, and includes locations such as scaffolding, or ships, or a caravan, as well as buildings and land.

The first issue is to identify who is an “occupier”. This depends on the degree of control a person has over the premises in question. More than one person can be held to be an “occupier” of the same premises. This is a question of fact in each case. The more control an individual has over the property in question, the more likely they are to be held to be an “occupier”. A tenant will usually be an “occupier” of property in circumstances in which they either live on the property or have the exclusive use of the property (for example, of a field for grazing). Equally, if exercising a sufficient degree of control, an independent contractor can also be held to be an “occupier”.

The second issue is to identify what constitutes reasonably foreseeable risks and reasonable precautions against those risks. Again, this will depend on the facts of each case. Examples of an occupier being held liable include polishing a floor so highly that it became dangerous, failure to salt an icy driveway, and failure to maintain a gate properly. If it is foreseeable that children will be accessing the property then the steps needed to discharge the duty are likely to be more onerous. Where possible, fences, paths, buildings and gates should be kept in a good state of repair. Where a danger cannot be neutralised there should be clear warning signs advertising it. “ As a child, when I

had friends round and we were busy building a tree house I certainly did not think of the liability which might have attached to my parents if any accident should happen!

When determining whether what was done (or not done) was reasonable, the Court will look at how obvious the danger was, what the occupier knew (or ought to have known) of the danger, and what might reasonably have been expected of the conduct of the visitor. As a child, when I had friends round and we were busy building a tree house I certainly did not think of the liability which might have attached to my parents if any accident should happen! However, we live in an increasingly litigious world and it is important to be aware of one’s duties and what steps one needs to take to discharge those duties. Think about the potential dangers, and who might encounter them - in an ideal world this might include a formal risk assessment of the property. Consider what can sensibly be done to draw attention to those risks and minimise the prospects, whether by placing warning signs, or ensuring that gates are secured so that they cannot be opened by animals or children. In respect of livestock, undertake regular checks of fencing, hedges etc. to ensure that the animals are secured.

Most importantly of all, ensure that you have adequate public liability insurance cover in place. This will usually cover any legal costs involved in the defence of a claim and any damages awarded as a result. It is important to check your policy documents and to speak to your insurer to ensure that you have the right cover and the right level of cover.