Problem question

Brian and Jennifer have decided to open their property, Cold Comfort Farm, to the public on 4 July, as part of national ‘Open Farm Day’. This scheme enables the public to see how a farm operates, interact with the animals, and learn some basic agricultural techniques.

One area of the property is under construction as a new two storey extension to the house. Clarke Construction have been working here for a month and they have completed the foundations and started the walls of the new structure. Over the weekend they have left, unguarded, a large yellow excavator on the site. The site has been roped off by Clarke at Brian’s request, and there is a sign: ‘No admittance to the public’.

The Kasim family chose to visit Cold Comfort Farm as a birthday outing for Ali, who is 5. They buy their tickets and their troubles begin.

Mrs Kasim has bought a new pair of designer jeans for the day and tears them on a large nail protruding from the gate, as they walk into the farm.

Mr Kasim volunteers to assist Brian in the sheep-shearing demonstration, but the shears slip and badly cut his hand.

While his father is being tended to, Ali ducks under the rope around the building site and, running towards the yellow excavator, falls into a ditch and breaks his ankle.

Advise the Kasims as to what legal actions they may bring.

In any problem question, your aim is to provide advice to the parties and so it is important to get straight to the point and to support your advice with clear and relevant legal authority in the form of case and statute citations.

The personal injury and property damage which have occurred indicate that this question raises issues of negligence and the facts will point you towards considerations of occupiers’ liability. Occupier’s liability is now governed by statute: the Occupiers’ Liability Act (OLA) 1957, regarding visitors, and the Occupiers’ Liability Act (OLA) 1984, in relation to ‘non-visitors’, or trespassers.

You should take each potential claimant in turn and identify the defendant and the claimant’s status in relation to that defendant.

Mrs Kasim is clearly a visitor on the farm, because she has express permission to be there having purchased a ticket (OLA 1957 s 1 (2). Brian and Jennifer are the occupiers of the farm (and the defendants) because they have control of the area into which they have invited the public (Wheat v Lacon). The claim will be governed by the OLA 1957. As with the common law, liability under the Act includes damages to property so her torn jeans would be covered if liability is established. The common duty of care under s 2(2) pertains to the state of the premises and whether it has been fulfilled depends on the particular facts of each case (this could be illustrated by any number of occupiers’ liability cases). Contributory negligence may apply. A warning sign might have discharged liability if it was enough to make Mrs Kasim safe (s 2(4)(a)). Her remedy would be damages to replace the jeans.

Mr Kasim is also a visitor and, again, Brian and Jennifer are occupiers in relation to the sheep shearing demonstration. However you should recall that occupiers’ liability concerns dangers relating to the ‘state of the premises’ and his injury has occurred due to an activity. (see, Revill v Newbery). This does not mean, however, that Mr Kasim has no remedy. Brian owes him a common law duty of care (Donoghue v Stevenson). If this has been breached, then it is likely that Brian will be liable to Mr Kasim for damages for his cut hand.

Ali has gone into an area of the property from which the public has clearly been excluded (The Calgarth; Gould v McAuliffe). At this point he becomes a trespasser and his case is governed by the OLA 1984. The occupier here is no longer Brian and Jennifer, despite the fact that they own the land, but most likely Clarke Construction, as it appears that they have control over the building site (AMF v Magnet Bowling). His injury is due to the state of the premises. You must apply s 1(3)(a-c) to see if a duty exits, and s 1(4) for the content of the duty. The existence of the excavator as an allurement may assist with satisfying s 1(3) (b). The defendants have put up a rope and sign, which have been inadequate to keep a child off the site. Given their awareness of Open Farm Day and the request by Brian and Jennifer, it is likely that Clarke will be liable for Ali’s broken ankle. The danger, clear to an adult, would not be obvious to a five-year-old (Phipps v Rochester Corp, Staples v Dorset CC).