Ms. Patricia Hislop fell into an open grave while visiting Applegarth Cemetery owned by Gladbury Burial Board. She injured her knee and was unable to climb out of the 6-foot grave for 1.5 hours until rescued. She is claiming damages from the Board and contractor Digby Toome for her injuries, broken items, and lost business. The Board may not be vicariously liable for Toome's actions. Both parties owed Hislop a duty of care as an occupier and contractor. Hislop's own negligence in approaching the partially covered grave may reduce damages awarded. A full liability and damages assessment requires medical and site records not yet provided to the lawyer.

1. RE: GLADBURY BURIAL BOARD
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OPINION
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INTRODUCTION
1. I am asked to advise Gladbury Burial Board (“the Board”) in respect of a claim for damages
arising out of injuries and loss that Ms Patricia Hislop has suffered from her visit to
Applegarth Cemetry on 19th
February 2014 at approximately 1.30PM. I am asked to advise
on liability, quantum in respect to damage to property and personal items, procedure, and any
further information that may be required which in this case would be a medical report.
FACTS
2. On 19th
February 2014, at approximately 1.30PM, Ms Hislop went to Applegarth cemetery,
which is owned and run by the Board. This can be confirmed by Mr Fred Tubby, the
Chairman of the board in his witness statement.
3. On February of 2014, the digging of graves were sub-contracted to a local odd-job man, Mr
Digby Toome who is also a sole trader.
4. The Board had used Mr Toome’s service on previous occasions and who knows the way the
Board works.
5. Ms Hislop intended to place flowers at the side of an open grave in Applegarth Cemetery, as
her friends husband’s funeral was due to take place on the 20th
of February 2014.
6. While placing the flowers at the side of the open grave, the fresh mud which had been
removed from the open grave, slid away from under her feet and Ms Hislop fell into the grave.
7. I am informed that the grave was covered in corrugated metal sheeting, and there were no
barriers of any sort.

2. 8. It had been raining that morning and the ground was still wet.
9. Ms Hislop had twisted her left knee and was unable to put weight on that leg.
10. Despite having her left knee twisted, Ms Hislop is 5 feet 2 inches tall, thus, she was unable to
climb out of the 6 feet deep grave.
11. Ms Hislop had left her mobile phone in the car.
12. Ms Hislop waited an hour and a half before being rescued out of the grave by Mrs Lovelace.
Mrs Lovelace then took her to the hospital.
13. Mrs Lovelace, who is a regular visitor of the cemetery, witnessed the accident. She has also
confirmed that there were no cones or security tapes at the time, but one corrugated metal
sheet lying partially across the open grave.
14. Since the accident, Mrs Lovelace has observed that whenever there is a grave to be prepared,
there are warning cones and security tape around it as a safety feature, whereas this was not
done previously.
15. Ms Hislop had suffered from a broken leg due to the accident, and was off work for two
weeks.
16. She has suffered damages to her Rawlex watch and her laptop.
17. Ms Hislop also suffered a loss in business as the laptop contained business contacts and
contact details.
LIABILITY
Gladbury Burial Board
Occupiers Liability
18. The Occupiers Liability Act 1957 (‘OLA 1957’) governs the duty owed to lawful visitors.
19. In this case, the Board is the occupier as Ms Hislop was on the property belonging to the
Board; however, an independent contractor can be an occupier if they have sufficient control.
Therefore, we will test whether Mr Toome had sufficient control and would be categorized as

3. an occupier.
20. Hence, Ms Hislop will have a claim under the OLA 1957.
21. Under s2(4)(a) of the OLA 1957, ‘Where damage is caused to a visitor by a danger of which
he had been warned by the occupier, the warning is not to be treated without more as
absolving the occupier from liability, unless in all the circumstances it was enough to enable
the visitor to be reasonably safe.
22. Under s.2(5) OLA 1957, ‘The common duty of care does not impose on an occupier any
obligation to a visitor in respects of risks willingly accepted as his by the visitor’
23. Thus, the question now would be whether or not the covering of an open grave with
corrugated metal sheeting was enough to enable Ms Hislop to be reasonably safe. It is very
obvious that there are risk of falling into the open grave if Ms Hislop did not take any own
precaution.
24. The notice outside the Applegarth cemetery had stated to “IMPORTANT NOTICE: TAKE
CARE IN THIS AREA WHERE THERE MAY BE OPEN GRAVES. THE GLADBURY
BURIAL BOARD ACCEPT NO LIABILITY FOR PERSONAL INJURY OR DAMAGE TO
PROPERTY HOWSOEVER CAUSED”
25. Therefore, the notice outside the cemetery was sufficient in warning Ms Hislop of the
potential dangers of an open grave and that the Board does not accept liability, and it was a
risk Ms Hislop took, as she should have known that there would be a risk of falling into an
open grave.
26. Hence, The Board may rely on this defence if a claim under the OLA 1957 were to be brought
against them.
Negligence
27. As a preliminary point, we would need to establish whether the Board would be vicariously
liable for the negligence of Mr Toome.
28. Mr Toome is a sole trader who have been sub-contracted by the Board as the employee that
was supposed to provide service to the Board was on leave. Thus, the Board would not be
held vicariously liable for the damage caused by the actions of Mr Toome.
29. Based on the information that I am provided with, it does not appear that such safety
procedures were in place, other than a corrugated metal sheeting. Therefore, the witness

4. statement of Mrs Lovelace would be very important in the court’s assessment of the
circumstances of the incident.
30. A full witness statement should be taken from Mrs Lovelace in due time, and copied to my
instructing solicitors.
31. The Board does also owe a duty of care, as they are aware of the potential dangers of the open
graves, a reasonable step of ensuring that Mr Toome has carried out the works with
compliance to the usual safety procedures as expected from him.
32. Therefore, if the Board did not take reasonable steps in ensuring that Mr Toome had carried
out the tight safety procedures that is expected from him, the Board maybe held jointly liable
for negligence.
Mr Digby Toome
Liability
33. Under s.2(4)(b) OLA 1957 which deals with Independent Contractors, the Act states that
‘Where damage is caused to a visitor by a danger due to the faulty execution of any work or
construction, maintenance or repair by an independent contractor employed by the occupier,
the occupier is not to be treated without more as answerable for the danger if in all
circumstances he had acted reasonably in entrusting the work to an independent contractor
and had taken such steps (if any) as he reasonably ought to satisfy himself that the contractor
was competent and that the work had been properly done.
34. The work of digging the graves had been sub-contracted to Mr Toome, who is a sole trader. If
the court was in the view that the corrugated metal sheeting was not placed properly, the
Board should not accept responsibility, as the Board had acted reasonably in entrusting Mr
Toome which he should have known how to properly secure the grave.
35. The Board understands that Mr Toome should have placed cones and tapes around the graves,
as per usual safety practice.
36. However, since Mrs Lovelace, a witness, has claim that there were in fact no cones or tape in
place on that day, the burden would now fall back on the Board, as the work was not properly
done.
37. Inspections could have been carried out as the offices were nearby.
Negligence

5. 38. Since he is an independent contractor, he owed a duty to take reasonable care of the safety of
others in the vicinity of the cemetery. Therefore, Mr Toome could be made as a joined party
of the claim for the damages caused to Ms Hislop.
39. A copy of work agreement between the Board and Mr Toome should be given to my
instructing solicitors to ensure that the Board may rely on the defences that they are not
vicariously liable for his actions.
Contributory Negligence
40. There is a warning sign in place near the gates of the cemetery which specifies that there may
be open graves. This sign has been there for years and Ms Hislop should have seen it as she
entered the cemetery and she should have taken more care when approaching an open grave.
41. However, in order to rely on this, my instructing solicitors should send a copy of the site map,
marking the gate(s) (if any more than one) and also marking the areas where the warning
sign/s (if any more) are placed.
42. Ms Hislop should have been aware that the ground was wet as it had been raining that
morning, and the mud may slip away. Any reasonable person should have known this and so
as Ms Hislop.
43. As the grave was ‘partially’ covered with corrugated metal sheeting and taking into account
the weather condition that day, Ms Hislop should have known better that it was an open grave,
and thus she should have approached it with more caution.
44. Thus, I do consider that Ms Hislop will be found to have been so careless for her own safety
(especially on a day that had rained earlier), given that a warning sign had been in place
specifying the potential dangers and to have failed the grounds of causation.
45. Therefore, I would provisionally advise that any damages awarded to Ms Hislop might be
reduced by approximately 25%.
REMEDIES
46. The tortious measure of damages is applicable to proceedings under CPA and for negligence,

6. such as to put Ms Hislop in the position she would have been in had the tort not occurred.
This would allow Ms Hislop to recover all foreseeable consequential losses arising from her
personal injury claim, and her loss/damages to her personal property under CPA and at
common law.
Pain, suffering and loss of amenity
47. If the Board is found to be liable, Ms Hislop will be able to recover a sum to compensate her
for the injuries she sustained, eg: a twisted left knee.
48. A medical report should be submitted to assist the valuation of Ms Hislop’s claim.
Damages other than pain, suffering and loss of amenity
49. It appears that Ms Hislop would like to recover for:
a) The loss of her Rawlex watch, valued at GBP 1,500.00;
b) Her laptop computer, valued at GBP 1,750.00 which is claimed to be beyond repair;
c) An alleged GBP 5,0000 loss in bonus earnings due to the fact that she wasn’t able to
hit her target for last year because of the loss of business contacts that were in the
laptop;
d) An alleged unspecified amount due to the loss of business contacts kept on the laptop
computer.
50. Subject to Ms Hislop being able to provide satisfactory evidence such as invoices or receipts
for each item, I consider that she should recover:
a) The cost of her Rawlex watch valued at GBP 1,500.00
b) The cost of her laptop computer valued at GBP 1,750.00
51. However, whilst the Board is still tortuously liable for the loss, the contributory negligence of
Ms Hislop should be noted.
52. Ms Hislop’s claim for loss of earnings due the loss of contacts on her laptop would have to be
made on the basis of’loss of a chance’ (Allied Maples Group Ltd v Simmons and
Simmons[1995] 1 WLR 1602) where she will need to prove that the chance is substantial.

7. 53. Having said that, the Board may still rely on the fact that she did not back up the information
from her laptop and therefore, it can be deemed as her own carelessness for not doing so.
54. Therefore, in summary and subject to further information in which I have requested, I
consider that Ms Hislop is likely to recover approximately GBP 2,437.50 due to the fact that
Ms Hislop’s damages are likely to be reduced by 25% if the court makes a finding of
contributory negligence.
NEXT STEPS
Further Information
55. My instructing solicitor should obtain the further information requested in:
a. Paragraph 29 (a full witness statement from Mrs Lovelace);
b. Paragraph 39 (as to the contract);
c. Paragraph 41 (site map);
d. Paragraph 48 (as to the medical report);
e. Paragraph 50 (as to receipts and invoices for the matter of loss or damage to
personal property)
Procedure
56. In order to comply with the Practice Direction on Pre-action (particularly Section III), Ms
Hislop’s instructing solicitor will send a letter before action to the Board before proceedings
are issued.
57. In the event the Board denies liability, proceedings are likely to be issued in the County Court

8. considering the relatively small value of the claim and to be allocated to the multi-track.
58. Further information should be obtained before issuing the proceedings.
59. Also, should the Board consider making an appropriate Part 36 settlement offer, please inform
me as soon as possible and I would be glad to assist.
CONCLUSION
60. Based on my opinion, the Gladbury Burial Board is likely to be found liable for negligence,
and is likely to be liable for approximately GBP 2,437.50 in damages.
61. Unless I can assist any further, this will be the end of my opinion, should there be any
problems or questions encountered in this opinion, please do not hesitate to contact me.

9. DENNIS Y-T CHUNG 19th
October 2014
Group 14A BPP Chambers

10. DENNIS Y-T CHUNG 19th
October 2014
Group 14A BPP Chambers