Santa on the farm - avoiding a liability issue

The duty owed to a visitor is typically higher than the duty owed to a trespasser or recreational user, writes solicitor Stephen Coppinger.

The duty owed to a visitor is typically higher than the duty owed to a trespasser or recreational user, writes solicitor Stephen Coppinger.

Dear Stephen,

Myself and my wife are farmers, and for the last number of years, we have run an open farm during the summer and a Christmas experience with a Santa Claus in the winter, where typically school trips with children and families come to visit to see the animals for a small entrance fee.

There is quite a lot of preparation and work involved and we are very health and safety conscious but we still worry that an accident might happen outside of our control. We have public liability insurance. But would there be a liability to us and what steps should we take if an accident occurs?

Happy Christmas dear reader, this is certainly a timely question.

The Occupier’s Liability Act 1995 outlines the responsibilities an occupier, as in the owner of the land, has in respect to other people who suffer injury on his land.

The Act lays out the different categories of entrants - visitors, recreational users, and trespassers. The duty owed to a visitor is typically higher than the duty owed to a trespasser or recreational user.

A visitor for the purposes of the 1995 Act is someone who is on the land at the invitation of or with the permission of the occupier, and I believe your customers would be classified as visitors under the legislation.

The occupier owes what is known as the common duty of care to a visitor on his or her land, which means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor's activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.

If a farmer is an employer or the farm is open to the public, you should have employers and public liability insurance in place, which will cover any accidents which occur on the farm, and I note you have this. 

If an accident occurs, it is advisable that you report the accident as soon as possible, and the insurance company is then notified.

Liability is then investigated by the insurance companies, and they will normally make a decision as to whether they intend to dispute fault or admit the claim.

It may be necessary to involve a third party not covered under the employers or public liability insurance policy. An example of this would be if the accident occurred as a result of an injury arising out of a defective product, such as farm machinery or equipment which a third party manufactured.

The typical procedure for a personal injury claim is that the solicitor for the person who was injured will write a letter of claim to your or your insurer and will then submit an application to the Personal Injuries Board setting out details of the claim, and they will have to produce a medical report setting out the nature of the injuries and under Irish Law, there is a limitation period, and you have two years to bring a case for personal injury to the courts. 

However, before a case can be brought, an application has to be made to the Injuries Board. Once a claim is submitted to the Injuries Board, the limitation period stops to run and it begins to run again once it leaves the Injuries Board.

If a claim is made, you should speak with your insurer as to whether your policy will be impacted by the claim being made.