Occupiers of land that poses a greater than usual risk to third parties, need to take extra care. This is of particular relevance to working farms as they can be dangerous to the unsuspecting visitor. As an occupier of a property which poses increased possible harm you need to be even more vigilant than a typical occupier especially when it comes to risk assessment, repairs and access. The recent case of Craig Anderson v John Imrie and Antoinette Imrie reinforces this point and highlights a number of lessons to be learnt including the need to put in place adequate warnings, the requirement to keep your property or land adequately maintained or repaired and the importance of having the correct insurance cover.
An accident on the farm
In June 2003, Anderson (then only eight years old) was being looked after in his mother’s absence by Mrs Imrie at the farm where she and her family lived. Mrs Imrie had allowed her young son and Anderson to play in the courtyard outside the front of the house but had warned them not to venture further out of her sight and into the working areas of the farm as they were dangerous. When Mrs Imrie was away for a few minutes in the stable the two boys ran out of her sight in a bid to try and round up the farm’s sheep. When trying to open the stable door to herd the sheep in, Anderson climbed onto a heavy gate covering the doorway which was only secured by a chain or rope. The gate then came free and fell on top of him causing injuries to his skull and brain.
It was maintained that Mrs Imrie had not been watching the boys and that they were mainly left to do their own thing. The accident had caused Anderson long term damage and had affected his employment prospects.
Duty of care owed by Occupiers
Under the Occupiers’ Liability (Scotland) Act 1960, a degree of care has to be shown by the occupier (the person who occupies or controls the land or property) towards third parties who are on the land or property, in relation to risks or dangers which exist, due to the state of the land or property, including any acts or omissions in relation to the land or property. Mr and Mrs Imrie argued however that they were not “occupiers” under the Act, as the farm was owned by Mr Imrie’s father. As such they were not the ones who owed a duty of care. However the Imries had been permanently resident on the farm for over 10 years and therefore had sufficient control over the property for them to be classified as “occupiers”, meaning they did owe a duty of care to Anderson.
Was the duty of care breached?
Although Mr Imrie was an occupier in terms of the Act, he was not to blame, as he was not present on the farm that day, and had been unaware of Anderson’s presence on the farm. He could not therefore be said to have breached his duty of care.
Mrs Imrie however was found to have breached her duty of care towards Anderson and was ordered to pay £325,976 in compensation. The total liability had been reduced by 25% as Anderson was deemed to have contributed in part to his own injury by not heeding the express warnings made by Mrs Imrie. He therefore had considerably increased the likelihood of injuring himself.
Lessons to be learnt
As an occupier you owe a duty of care to visitors to your property. If your property could be considered to be hazardous, you should consider taking the following precautions (though this list is non-exhaustive):
- To reduce the risk to third parties and in turn limit your liability, it would be prudent to put in place any protections or warnings, such as signs, that a reasonable person would consider to be necessary to prevent harm occurring to third parties. A court decision in 1984 stated that more warning is required if young children are likely to cross the property.
- Carry out a formal risk assessment of the farm, and take any action to remedy any risks identified before recording the findings of such a risk assessment. This could go a substantial way in your defence by showing the steps taken to minimise the risks.
- Be aware of your responsibilities as an occupier – ignorance is not a valid defence.
- Regularly check the condition of fences and gates, and access to buildings etc. to ensure that they are fit for purpose and do not pose any increased risk towards third parties.
- Ensure gates are secured in a way that they cannot be opened by animals or children.
- Your liability is not limited only to third parties who have been invited to your property. You can also be responsible for third parties exercising access rights across your farm. Someone who is injured while on a country walk could also be entitled to compensation for breach of your duty.
- Children especially can be unpredictable, so if there is the likelihood they could be on your property you must consider all possible eventualities, particularly as they may choose not listen to warnings!
If you do not have any, then consider taking out adequate Occupiers’ Liability insurance. This will usually cover any legal costs and the compensation awarded by the court. Carefully check your policy documents, or speak to your insurers to confirm the extent of your cover so that you do not find yourself exposed in the way the Imries were.