JAMES PAUL MAYBERRY
(A child suing by his litigation friend
ROBERT MARK MAYBERRY)
and
ANIMAL WORLD (ALBRIDGE) LIMITED
OPINION
1. On Tuesday 29th October 2002 James Paul Mayberry, together with his parents, visited Animal World Limited (AWL). An entrance fee of £25, being £5 for James and £10 each for his parents, was duly paid. James, in the company of his parents, entered an enclosure, which was open to the public. One of the animals housed in the enclosure was a llama. He approached one of the four llamas in the enclosure; a llama named Larry, and started shouting at him. He then shone a device known as a laser pen into the left eye of the llama. He then started to run away from Larry and, in the course of so doing, fell over.
Summary of the advice:
2. In my opinion it is somewhat unlikely that Jimmy would have a good claim against (AWL), but I think he would probably succeed in recovering damages in respect of his injuries, though further information is required to come to that conclusion. Regarding the counterclaim, (AWL) would have a good claim in recovering damages against both Jimmy and his parents, but I think the court would impose an order on his parents to pay a sum equal to Larry’s financial value immediately prior to death subject to satisfactory evidence. Therefore, at this stage in my opinion I will assume the amount claimable to be its original value of £ 4000 and the veterinary surgeon’s fees of £120.
3. I am asked to advise on whether the claimant’s claim will be successful; and if the counter claim is brought against Jimmy, the possibility of success. The next point is whether (AWL) can bring an action against Jimmy’s parents as well, if so, what would be the best way of doing so?
A. The possibility of the claimant’s claim being successful:
4. The Claimant complained that (AWL) had breached a common duty of care set out in s 2 (1) Occupiers’ Liability Act 1957. The question will be whether they have shown the requisite standard of care under s 2 (2) of the Act. Furthermore, it is clear from the Act and Sawyer v. Simons (1966) 2 All ER that the occupier does not have to ensure the safety of the visitor, but only has to make him or her reasonably safe. In fact, (AWL) had ensured the animals’ house reasonably safe for the visitors by always keeping an experience keeper in the llama enclosure. Furthermore, the llama does not threaten the public and was confirmed by Eryl Davies that the llama is a very docile and trustworthy animal, although (AWL) policy was to only employ people who had experience with the sort of animals they have at Animal World. Therefore, I think it would be highly unlikely for the Claimant to establish that both the animal world was unsafe for the visitors and the Defendants failed to exercise proper control over the llama. I need further information on whether Eryl Davies is an agreed expert and whether to work for Animal World requires any training. The question of the adequacy of warning would not be considered as a strong argument, as claimed by the Claimant, because the expert evidence clearly shows that the llama is not a dangerous animal and it is sufficient for the keeper Mark Franklin to be present to ensure that the visitors are safe. Furthermore, the keeper has never experienced, in his long working life such animals as the llama, to attack a human. I need further information on whether there was any warning sign or any written notice in the premises.
5. The next point is that duty is only owed to the visitors while they are undertaking the purpose for which they are permitted or invited to be on the premises. If the visitor decides to do something, which he is not permitted to do, then the duty of care under the OLA 1957 would not be owed. In this case, Jimmy was permitted to enter (AWL) in order to visit animals but was not invited to injure Larry by using a laser pen, so neither the 1957 common duty of care would be owed to him nor the lawful visitor, therefore he would be considered a trespasser.
6. It can be argued (AWL) would be held liable under s 2 (3) (a) of the OLA as Jimmy is a 10 years old child who has been attracted by ‘traps’ onto certain parts of premises and injured there. However, there is no clear information whether the Defendants have used anything to allure the children into the closure with the llama, so I need further information. I think it is very unlikely that this argument would be considered to hold them liable as the case law laid down different stance to decide the liability. For example, in Liddle v. Yorkshire (North Riding) CC (1944) 2 KB 101where it was held that the defendants were not liable when a child who was a trespasser was playing on a high bank of soil close to a wall. Furthermore, in Phipps v. Rochester Corpn (1955) 1 QB 566 where it was held that, even though as a licensee, he was a lawful visitor, the occupiers of the land were not liable, because the parents should have been taking care of the child.
Contributory negligence:
7. The defence of contributory negligence is unlikely to succeed against Jimmy, because of his age and understanding. In English courts it has been held that the conduct of an infant Claimant cannot amount to contributory negligence, if it is no more than can be expected of a child of his age. In Jones v. Lawrence (1969) 3 All E R 267, a seven-year-old-boy, who was going to a fun-fair, ran out from behind a parked van on the off-side of a road, without first looking to his right or left, and collided with a motor-cyclist travelling at about 50 m.p.h in a 30 m.p.h speed restricted area. The child was held not guilty of contributory negligence. It was accepted that children of that age were prone to forget what they had been taught about road safety, if their minds were engaged elsewhere. Therefore, I need further information on Jimmy’s growth and maturity in respect of his age, as he is a 10 years old child.
Causation:
8. The damage may be recoverable will depend on proof of the chain of causation resulting from each breach. Jimmy would claim that (AWL) breach of statutory duty, leads him to sustain serious injuries including a simple fracture to his right fibula and a compound fracture to his right tibia. The claim can primarily succeed if it can be shown by Jimmy that he would not have suffered injury if (AWL) were not in breach of their statutory duty.
B. Counterclaim against Jimmy:
9. It is highly likely that (AWL) would be able to establish a counterclaim against Jimmy that his behaviour constituted a wrongful interference with their property. He approached one of the llamas in the enclosure with a laser pen but it ignored him, as they are very peaceful creatures. Furthermore, the keeper had seen him shouting and waving his arms at Larry. He then pointed the pen at Larry’s head as a result it sustained serious injury into the left eye. There is no clear indication that whether he had intended to injure Larry; if he so, he will be considered as a blameworthy. I need further information about both his growth and maturity and whether he was capable of measuring the consequences of his actions with Larry at the age of 10.
10. In my opinion Jimmy’s character witness by his teacher will not play any major role in deciding whether he will be held liable due to his wrongful interference. The court will decide whether the letter will be admissible to give credibility into his case, although the letter shows he is a model pupil, well behaved and not disruptive. Furthermore, his teacher strongly suggested he would never attack an animal, and both loves and respects animal, which clearly shows from his willingness to look after the School rabbits.
Causation:
- Jimmy’s wrongful interference with Larry is made clear that there is a direct causal link, leading to serious damage to Larry’s left eye and having to be destroyed by a veterinary surgeon. Furthermore, Jimmy will only be found liable if its proved that Larry sustained serious injury in the left eye due to Jimmy shining the laser beam with no alternative available other than destroying Larry to mitigate the cost. Therefore, I need further information from expert evidence on the seriousness of Larry’s injury.
C. The possibility of claim against Jimmy’s parents:
12. (AWL) would be able to adduce the claim against Jimmy’s parents under the tort in negligence in order for failing to supervise and control Jimmy to behave reasonably when they visited Animal World. Therefore, the foreseeability of damage due to his parents negligence gives rise to a duty of care because the relationship between Mr and Mrs Robert Mark Mayberry and Jimmy is such that it is obvious that a lack of care creates a risk of harm (by the law as one of ‘proximity’ or ‘neighbourhood’). Clearly, the situation is one in which the court would consider it is fair, just and reasonable that the law should impose a duty.
Breach in negligence:
13. Jimmy’s parents will be held in breach for failing to supervise, monitor and control Jimmy reasonably at the time of the accident as he was under their supervision, which had caused him serious injury and Larry had to be destroyed as a result of its nasty injury. They were expected to take reasonable care to minimise the risks that were foreseeable. In fact, the keeper who is in charge of the llama enclosure was present at the accident and had seen that Jimmy was accompanied by his parents, exercising no control over him whatsoever, instead finding his antics funny when Jimmy was shouting and waving his arms at Larry trying to scare him. Moreover, Jimmy seemed to have been playing with the laser pen for a reasonable time, as he was first holding the object in his hand and then pointed it Larry’s head, which gives enough time to his parents to stop him from causing Larry’s injury. Clearly, if J’s parents would have taken reasonable care to supervise Jimmy, neither Jimmy would have been injured nor Larry had to be destroyed. Therefore it is clear that his parents were in breach of their parental duty and will be held liable for damages.
14. We need further information whether his parents could have measured both the risk of possibility to incur injury either Jimmy or Larry and the consequences of playing with laser pen. Further, it is neither clear the parents distance from Jimmy at the time of the incident nor the total time his parents had to stop Jimmy from interfering with Larry. Therefore, a map of the enclosure would clarify this issue.
Contributory negligence:
15. The defence may possibly raise the issue of contributory negligence; their argument primarily would be that there was no adequate warning, which could prevent both Jimmy and Larry from being injured. Jimmy further had been playing with the laser pen, it might be since he entered into the premises and continued his antics without any interference by the security. Whereas the consequences of playing with the laser pen by a young boy should have alerted security, to consider it seriously and stop him from causing any serious injury. Moreover, I need further information on the durability of Jimmy’s playing with the laser pen, which can be confirmed by either the record of the CC TV or getting more information from the keeper. Furthermore, the keeper could have stopped Jimmy playing with the laser pen when he had seen that Jimmy was interfering with Larry and pointed this object at Larry’s head. If he took reasonable steps, which is required within his responsibility, to stop Jimmy at the incident, neither Jimmy nor Larry would have been injured due to the wrongful interference. I need further information because it is not clear whether the keeper could stop the attack if he wanted, depending on the distance of the keeper from Jimmy, and whether the keeper anticipated the risk of what Jimmy was doing. Therefore, the level of contributory negligence may be in the region of 30%.
Causation:
16. The head of loss, which may be recoverable, will depend on the chain of causation resulting from each breach. The breach of the obligation to supervise and control Jimmy leads to the laser beam in Larry’s left eye, with Larry sustaining serious injury to that eye and having to be destroyed. The claim can primarily succeed if it can be shown by (AWL) that J’s parents’ supervision could have stopped Jimmy seriously injuring the left eye of Larry with the laser pen.
Damages:
17. (AWL) have a good claim against Jimmy’s parents for damages for the loss of Larry, which flows naturally from the breach, but it would be very difficult to recover losses from Jimmy as he is a 10 years old child without any source of income. Therefore, the court would impose an order on his parents to pay a sum equal to Larry’s financial value immediately prior to its death. Up to date evidence of value will be necessary to establish this. For the purposes of this opinion I will assume the amount claimable to be its original value of £ 4000. Furthermore, (AWL) would also be able to claim the veterinary surgeon’s fees of £120.
D. Further Evidence and Next steps:
18. The damages that I have figures for total £ 4,120. However, (AWL) would bring counterclaims against both Jimmy and his parents, and the rules contained in CPR, Part 20, and PD 20. They may make a counterclaim against Jimmy by filing particulars of the counterclaim (r. 20.4 (1). The counterclaim against Jimmy’s parents they must apply to the court for an order adding them as Defendants to the counterclaim (r. 20.5 (1)).
19. A letter before claim should be sent both Jimmy and his parents, setting out the bases of claim and the alternative amounts sought. If they do not settle, this claim should be brought in the County court. I expect the total award will not be more than about £ 4,120.
20. As I have stated above in my opinion, expert evidence will be required on both the issue of llamas behaviour if Mr Eryl Davies is not agreed expert by both parties and the seriousness of Larry’s injury. However, there should be a single expert where possible, and it would be sensible to attempt to seek agreement on who to appoint with the defendants. Furthermore, the evidence I have asked for might be expensive; therefore my suggestion is to make it cost effective as much as possible. Regarding the evidence disclosure, an application should be made to the court by asking for disclosing the evidence as early as possible.
21. It might assist instructing Solicitors to have a summary of the further information and evidence referred to in this opinion:
a) Mr Eryl Davies whether he is an agreed expert of the parties and the validity of his advice today if the proceedings commenced.
b) Whether there was any warning sign or any written notice in the premises.
c) Whether to work for Animal World requires any training.
d) Further assistance from the keeper Mr Mark Franklin regarding the accident in detail explanation.
e) Whether (AWL) have used anything to allure Jimmy into the closure with the llama
f) Jimmy’s growth and maturity in respect of his age, and whether he was capable of measuring the consequences of the interference with Larry at the age of 10.
g) Further evidence from expert on the seriousness of Larry’s injury.
h) Whether his parents could have measured both the risk of possibility to incur injury either Jimmy or Larry and the consequences of playing with laser pen.
i) Parents distance from Jimmy at the time of the incident and the total time his parents had to stop Jimmy from interfering with Larry.
j) A map of the enclosure would clarify this issue.
k) The durability of Jimmy’s playing with the laser pen, which can be confirmed by either the record of the CC TV or getting more information from the keeper.
l) Whether the keeper could stop the attack if he wanted, depending on the distance of the keeper from Jimmy, and whether the keeper anticipated the risk of what Jimmy was doing.
Abdul Mabud Masum
ICSL Chambers
10 December 2003.