Precis Caroline Carah de Silva

A comparative study of occupiers’ liability towards visitors engaged in potentially hazardous activities on rural land in England and Wales and the United States of America with particular reference to the effects on commercial land use and farm diversification.

I was prompted to apply for a Farmers’ Club study bursary to delve deeper into the law of occupiers liability in this country and to compare the development and operation of such law in a comparable legal system (the USA) due to a number of events which had lead to the increasing concern of land owners and occupiers about their potential level of liability. These included the implementation of the so called ‘right to roam’ legislation in 2000 (Countryside and Rights of Way Act), some significant cases making it to the House of Lords - operating favourably for land owners in the Occupiers’ Liability Act 1984 case of Tomlinson v Congleton Borough Council [2003]1 and unfavourably in the Animals Act 1971 case of Mirvahedy v Henley [2003]2.

In the light of general concern I particular wanted to see if the existing law, and the level of liability it ascribed, operated to the detriment of land use and any diversification plans.

The USA was the comparable of choice because they are a common law jurisdiction with a parallel system of negligence, occupiers’ liability and liability for things brought to and kept on land, be that livestock or other potential hazards.

In addition, they have, in certain areas, a comparable rural economy where family farms are seeking to diversify as income solely from agriculture is no long sufficient. Contrary to what may be popular opinion, the US is not solely comprised of huge agri-businesses and enormous land holdings. As part of my study I visited Illinois, Arkansas and Texas but conducted my main studies in Iowa, centering my academic studies at the Agricultural Law Center of Drake University in Des Moines and the Department of Iowa State University, where I was privileged to meet the guru of US agricultural law and tax, Prof. Neil Harl 3, who was in his retirement year and most generous with his time, legal advice, materials and in sharing his keen interest in the history and preservation of rural barns. Iowa, in particular, has (along with the large arable operators and hog confinements) many modest land holdings with acreages in the tens and hundreds rather than the thousands, with an average farm size of 355 acres. 4 Bed and breakfast, farm shops, equine businesses and pick-your-own operations (or ‘U pick’ as they call them) are common adjuncts to the traditional farming activities, which in Iowa were referred to as ‘sows, plows and cows’ - i.e. pig farming, beef and some dairy cattle and arable (being maize or soya). 5 No huge 1

[2003] WLR 1120 [2003] UKHL 16 3 Professor in Agriculture and Professor of Economics , Iowa State University, Ames, Iowa.

4 USDA, National Agricultural Statistics Service, Iowa Agricultural Statistics.

5 Iowa is first in US maize, eggs and pig production, second in soy beans, fifth in oats, sixth in hay and sheep and eighth in cattle and second only to California in agricultural exports : statistics supplied by the 2

grassland ranges here - rather small ‘feed lots’ which were maybe quarter acre fenced areas of mud - no grazing and cattle fed on maize, resulting in incredibly tender beef - although the range farmers of the cowboy country out in Wyoming, Montana and Texas insist mid-western corn fed cattle lacks flavour.

In my opening paragraph I mentioned an Animals Act case and the reader may wonder how this fits in to occupiers’ liability. My main concern with this area of law was, as stated above, whether concerns and the perceived potential liabilities affect the business development plans of farms. Research in this country revealed that a growing area of farm diversification is into equine activities be that livery, teaching, opening farm rides, pay-as-you-go cross country courses or equine bed and breakfast. I found this paralleled in the USA. My studies, and growing concerns about liability in a number of areas coincided with the fall out from the House of Lords decision in Mirvahedy v Henley. In that case, horses escaped from a field onto the road late at night causing a serious traffic accident.

It was found that the occupiers of the field (who were also, but need not have been, the horse owners) were in no way negligent. They were, however, liable under s2(2)(b) of the Animals Act in that the horses were, acting in a way which, while not typical of horses in general, was typical for horses ‘in particular circumstances’, i.e. when frightened or spooked, horses may well bolt.

Did this case affect farm diversification plans in this popular and potentially lucrative area? Yes - in that insurance premiums rose dramatically in a direct response. Yes - in that advisers will indicate the potential civil actions which could ensue from both accidents and escapes. Insurers are extremely active in trying to both reduce clients’ exposure to liability by their daily practices (e.g. by the use of disclaimer forms and risk assessment forms) and also in supporting moves for a change in the law.

Against the background of concern regarding occupiers’ liabilities with regard to animals (and, indeed, other potentially hazardous activities, such as assault courses) I concentrated my US studies largely, but not exclusively, on occupiers’ liability with regard to animals in general and horses in particular. As I said above, equine activities are gaining in popularity in the USA and are a popular farm / rural land owner diversification project. It need not be spelled out that the USA leads the field in terms of civil litigation and negligence actions abound for injuries sustained whilst riding, coming into contact with farm animals and otherwise sustained by members of the public on rural premises. This fear of litigation has certainly been operative in deterring the small, family farmer from certain diversification projects. However, the cycle of on-farm projects and litigation against land occupiers is a couple of decades ahead in the USA, which makes for such a useful comparison. The exposure led to the introduction in many, although not all, states of Recreational Use Statutes and / or Equine Liability Statutes. Recreational Use Statutes relate to persons taking part in ‘risk’ sports such as, to quote some of the items given in the statute for New York Iowa Farm Bureau.

State : ‘hunting, fishing … canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, 6 horseback riding, bicycle riding, hand gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs’. Different states have different named activities and vary as to whether they relate to persons using the land for a fee. Equine Liability Statutes have an obvious remit and normally encompass virtually all equine activities - a typical list from a statute includes : equine shows, fairs, competitions, performances, or parades, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, driving, pulling, cutting, polo, steeple-chasing, English and western performance riding, endurance trail riding and western games, hunting, equine training or teaching activities, boarding equines, riding, inspecting, or evaluating an equine belonging to another, rides, trips, hunts, or other equine activities of any type however informal or placing or replacing horseshoes on an equine and examining or administering medical treatment to an equine by a veterinarian.

Such statutes essentially preclude litigation regarding injuries sustained as a result of the ‘inherent’ risks of the activity. They do not preclude litigation where the defendant is alleged to have been negligent. This has not resulted in the cessation of all court actions, clearly. However, it does give occupiers of land far greater comfort in developing their businesses to use land for ‘adventurous’ sports or equine. For example, if conducting a hack and a horse shies, at a canter, throwing the rider, in this country the business could be faced with an Animals Act issue (a horse shying being normal for horses in ‘particular circumstances’, i.e. when startled). In the USA an Equine Liability Statute would protect the business - assuming the ride was well run, the horse was correctly matched with rider’s ability, etc. i.e. there was no element of negligence. The statutes for each state also have precisely worded disclaimers and signage which are of the nature being adopted by British insurers.

How is this matter developing? Governments, both here and in the USA, purport to encourage farm diversification in sustaining rural economies and communities.

Very real concerns about additional liabilities which may result from such developments are clearly detrimental to that end. In the USA it was seen as an unjustified fetter on business development to ascribe liability in the absence of negligence for activities which do hold some very real risks but which persons of sound mind enter at their own volition. In the UK, the insurers, with a prudent use of documentation, seek to replicate the recreational use and equine liability statutes of North America and there is an industry push from both equine interests (such as the British Horse Society), business interests (notably the insurance industry) and rural land and farming groups (such as the Country Land and Business Association) to develop such legislation over here.

6

The study of caves.

In the meantime, there is clear evidence from research conducted, that both insurance costs and the fear of litigation halt or, at least, constrain many diversification projects which involve public access to land and, particularly, potentially hazardous activities such as those involving horses and ponies but that the USA has legislated a way through this and that in England and Wales, careful management can help regarding supervised activities, such as rides or adventure sports. None of this will, of course help with escaping animals as seen Mirvahedy v Henley, where the occupier who chooses to keep animals must, in certain circumstances, bear the risk of damage they may cause.

Farm road designation in rural Texas.

Horses for trail riding in Texas

The earliest experimental crop field in the USA at the University of Illinois.

Maize fed cattle near Des Moines, Iowa.

A reminder of being in the USA - a sign outside a grocery store - Iowa.

A couple near Sumner in northern rural Iowa who have diversified into a bric-a-brac store and pick-your-own melons.