Posted 20 May 2013
Carrie de Silva
A monthly comment from a member of staff at Harper Adams University
Principal Lecturer in Law and Taxation: Carrie de Silva
“Yet again, a death has been reported where a man in his 60s was walking through cattle in a field with public access. He and his older brother, who was also badly injured, were walking with a dog in Turleigh, Wiltshire on May 13 when the accident occurred.
There are few years which do not see a death in similar circumstances, and there will be many more cases of non-fatal injuries. The matter causes great concern to walkers and farmers alike and solutions which are practical are sought. The problem is, of course, that walkers do not want restricted access and farmers want free use of their land without undue fencing expense or worry about litigation.
The legal issues for farmers were explored in some detail in the McKaskie v Cameron case in 2009. This only reached the County Court as, despite leave to appeal, the matter was settled in favour of the injured walker before reaching the High Court. The case was not the result of a fatality but life-changing injuries were sustained resulting in, initially, more than a year in hospital following the accident.
A range of civil and criminal issues arise out of such cases, including criminal health and safety offences, civil negligence, occupiers’ liability, Animals Act and, where relevant, provisions regarding public access.
These incidents, and the advice from various bodies including the National Farmers’ Union (Livestock on Rights of Way: A Guide to the Law), the Health and Safety Executive (Cattle and public access) and the Ramblers’ Association (Walking Near Livestock) highlight some important points for both walkers and farmers.
• Ensure, from maps if possible, the precise route of public access. The well-trodden apparent path may not be the official path (as was the case in McKaskie). If you are off the public right of way (a) the farmer will not assume your presence, and (b) you may be deemed to be a trespasser and thus have limited protection if you are injured.
• To quote NFU signage, ‘Your dog can scare or harm farm animals. Keep it on a lead around livestock, but let it go if chased by cattle.’ Almost all of these incidents involve dogs. If cattle do get restless, let the dog go. If it is chased it is likely to get away and cattle will almost certainly direct their attention to the dog rather than the person.
• Try to walk round a herd, not through it.
• Do not run if chased.
• Check Ramblers Association guidance.
• Obtain a copy of the NFU and HSE leaflets.
• Try to avoid keeping cattle in fields crossed by public rights of way.
• Post up the NFU signage where appropriate. The wording is particularly valuable as it both informs and protects the public whilst not raising Animals Act and access liability which would be the case if there was an indication of dangerous stock. These signs intimate that the stock is not intrinsically dangerous but might but upset by unfamiliar dogs.
• Certainly do not put cows with calves in fields with public access. In the McKaskie case, the calves were not young but experts felt that the cow/calf bond, resulting in aggressive and protective behaviour, could last well beyond the early weeks and months.
• Where fencing is impractical, at least consider temporary fencing/wire.
Despite too many deaths and injuries and the consequent concerns for farmers which we seek to minimise, it should be borne in mind that given the miles of public footpaths, the number of walkers and the number of fields with horses and cattle, these incidents are mercifully rare."