GUIDANCE NOTE: LIVESTOCK ON PUBLIC RIGHTS OF WAY

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Gervase Singleton
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1 Date30/07/2009 Ref: GN03-09 No responsibility for loss occasioned to any person acting or refraining from action in reliance on or as a result of the material included in or omitted from this publication can be or is accepted by the author(s), the Country Land and Business Association Limited or its officers or trustees or employees or any other persons. Country Land and Business Association Limited. All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in any retrieval system of any nature without prior written permission of the copyright holder except as expressly permitted by law. GUIDANCE NOTE: LIVESTOCK ON PUBLIC RIGHTS OF WAY ISSUE The recent case of McKaskie v Cameron has been the cause of much concern and speculation. It involved a landowner who was found to be liable in respect of the injuries sustained by a woman who was walking her dog in the vicinity of a public right of way across a field in which the landowner kept cows and calves. The woman was attacked by the cows and sustained severe injuries. The case was heard in the county court, meaning that it does not set any precedent, and was slightly unusual in that the woman concerned did not stick to the route of the path. In any event, in the CLA s view, nothing has changed as a result of the McKaskie decision. Nevertheless, there is a risk, albeit extremely small, of members of the public suffering an injury from livestock when using public rights of way or access land. This risk can be exacerbated by the presence of dogs. As a result many livestock farmers are particularly concerned about how to manage livestock on land where there are public rights of way, or which is access land. They are also concerned about their liability. As such it is still important for land managers and the keepers of animals to be aware of the legal position. LEGAL BACKGROUND Specific controls The only specific controls on the keeping of livestock in fields crossed by public rights of way concern bulls. Section 59 of the Wildlife and Countryside Act 1981 bans bulls of recognised dairy breeds, subject to a number of exceptions, from being kept in fields crossed by public rights of way. The exceptions are bulls which are not more than ten months old and bulls which are not of a recognised dairy breed and which are at large with cows or heifers. Recognised dairy breeds are: Ayrshire, Friesian, Holstein, Dairy Shorthorn, Guernsey, Jersey and Kerry. Fields does not include areas of open fell or moorland. There are no other specific controls. Instead, more general legal principles apply.

2 Negligence Anyone can be found to be negligent where they have failed to take reasonable care. The damage resulting from that failure to take care must be reasonably foreseeable for a claim to be successful. In practice this is most likely to be the basis on which most animal keepers are found to be liable for any incidents that occur. The potential liability can be reduced by following the practical advice at the end of this note. The Animals Act 1971 Section 2 of the Animals Act 1971 imposes strict liability on the keepers of animals that cause harm or damage in certain circumstances. Unlike negligence, which depends on the person being at fault in some way, strict liability imposes liability without fault, meaning that in certain circumstances the keeper could be held responsible despite any precautions he has taken. Unfortunately, what those circumstances are is not altogether clear. Moreover, the situation has become more confused following the well known case of Mirvahedy v Henley in which it was decided that a person could be held liable even if there was no way he could have known that his animal could be dangerous in particular circumstances. Following lobbying by the CLA, together with a number of other stakeholders, the government is currently considering amending the Act so as to limit strict liability to harm or damage caused by the unusual or conditional characteristics of the animal. Unusual characteristics are defined as those that are not shared by the species generally, while conditional characteristics are defined as those that are shared generally by the species. The new wording would require that for strict liability to apply in cases where an unusual characteristic was the cause of the damage, the keeper of the animal at the time the damage was caused must have known of that characteristic in the animal concerned. Where the damage is due to a conditional characteristic of the animal, strict liability is to be limited by the availability of a defence if the keeper of the animal can show that there was no particular reason to expect that the particular circumstances that provoked the conditional characteristic would arise at that time. Occupiers Liability Acts 1957 and 1984 These provide that an occupier of land owes a duty of care to those who enter onto his land. The 1957 Act deals with lawful visitors, and the 1984 Act sets out the position with regard to trespassers. The occupier is the person (or body, company, authority etc) who is in control of the land. Duty towards visitors A person exercising a public right of way is not a visitor for the purposes of the 1957 Act, because the occupier of the land has no right to exclude him. However, if the occupier authorises the person to enter the land, such as through a permissive path, or because he acquiesces to him doing so, the position will be different: the person will be a visitor. This is what happened in McKaskie. Ms McKaskie apparently strayed from the right of way, but followed an unofficial route that was known to Mr Cameron, the landowner. Under the 1957 Act the occupier is under a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there. The Act notes that occupiers must take account of the fact that children will be less careful than adults. 2

3 Duty towards trespassers The 1984 Act sets out the position with regard to trespassers, which will include people who stray from the right of way onto adjoining land. The duty of care is lower than for people who are invited onto the occupier s land, but the duty of care is not removed entirely. Therefore, the occupier owes a duty to trespassers if: i) he is aware of the danger; ii) he knows or has reasonable grounds to believe that a person may get in the vicinity of the danger; and iii) he should reasonably be expected to offer that person some protection. This level of duty of care is also the same level that is applied to land mapped as open access land under the Countryside and Rights of Way Act 2000 (the CROW Act). No duty is owed under the Occupier s Liability Acts where a person willingly accepts the risk. Climbers, for example, therefore voluntarily accept the risks of their sport. Health and Safety Legislation The Health and Safety at Work Act 1974 sets out the general responsibilities that employers have towards their employees and members of the public. These duties apply so far as is reasonably practicable. The Act would not apply if it was therefore impossible to reduce the risk, or of disproportionate expense. The Management of Health and Safety at Work Regulations 1999 place a duty on businesses to go about their work in such a way that they avoid risks to employees, visitors, trespassers, volunteers etc. These regulations apply to every work activity and require that a risk assessment is carried out for each work activity and that the assessment is reviewed if circumstances change. The risk assessment only needs to be recorded if the business has more than five employees, but it is good practice to do so even where there are fewer than five. Conducting a risk assessment, recording that it has been done, and keeping it under review, means that a land manager is likely to be complying with the law and in the event of injury, evidence of this process can assist in providing a defence to a claim. The HSE has produced guidance on the keeping of cattle on land subject to public access rights. The details are set out at the end of this note. GUIDANCE FOR LAND MANAGERS Animal owners should be aware of their responsibilities under the Animals Act, the Occupiers Liability Acts and Health and Safety legislation. In order to reduce the potential for incidents, animal owners should take the following practical steps: Assessment and Practical Management 1. Assess the general temperament and behaviour of the animals in the herd. 2. Do not keep cattle known to be aggressive, or known to be aggressive at certain times, in fields where there is public access. 3. Consider carefully whether particular cattle should be kept in a particular field, taking into account the general behaviour of the cattle, and the amount and type of public access to the field. 4. Follow a precautionary principle and try to ensure that down calving cattle, or cattle with calves at foot, are not kept in fields with public access. 3

4 5. Assess whether young calves kept with the herd will affect the behaviour of older cattle. 6. Consider using other fields during periods of greatest public use for example, bank holidays, summer holidays, or at other stressful times such as when the cattle are calving. 7. Plan carefully the location of handling and feeding areas locate them away from public access where possible, so as to avoid congestion/congregation of stock close to Public Rights of Way or confined spaces. 8. Consider whether it is reasonably practicable to temporarily fence public rights of way so that cattle and public are separated. It is important that the public use of the right of way is not obstructed by any fencing. Where a temporary electric fence is used, remember that warning signs should be used. Particular care should be taken if using electric fencing near a bridleway. 9. Consider whether a permissive alternative route can be provided. This may provide a route away from an area where cattle are unavoidably kept. However, if a permissive route is provided, remember that the public will still be entitled to use the right of way. If you provide a permissive route, then you are liable for those who use it (including responsibility for the surface etc). It is recommended that a map, statement and statutory declaration made under section 31(6) of the Highways Act 1980 is submitted by anyone who provides permissive access. 10. For open access land under the CROW Act, consider whether a restriction should be applied for. This would have the effect of restricting public access to open access land, although would not Bulls have any effect on any public rights of way that may cross the land. 11. Alternatively, on open access land, consider using informal management techniques, such as signposted and waymarked paths, to encourage public access through areas which fit best with livestock management. 12. Farmers should check regularly on the behaviour of the cattle in the fields. They should assess the temperament of any cattle kept in fields with public access and remove from the group any that have a history of aggression or that may be aggressive because of illness, young calves etc. If there are concerns about particular individuals or groups then, where possible, they should be moved to a safer location. 13. Ensure that the hedges, fences and gates around the fields are strong enough to keep the cattle in. 14. Ensure that cattle and fences are regularly checked (at least once per day). 15. It is important to ensure that paths are clearly signed and waymarked so that members of the public do not enter fields without public access, and do not stray from public paths. 16. Farmers should plan carefully how to move cattle safely (whether individually or as a herd). 17. Follow good practice by keeping records of risk assessments. 18. Do not keep dairy breed bulls in fields crossed by public rights of way it is against the law. 19. Always run beef breed bulls with a herd when in fields. 20. Ensure that bulls are kept in fields which have secure, well maintained fencing. Bulls should ideally (and always in the case of dairy breeds) 4

5 Signs be kept in fields without public access and where gates can be kept locked. 21. It is good practice to display signs informing the public when a bull, or cows with calves, are in a field. Signs may also indicate what to do in case of an emergency. Signs are, however, no substitute for proper consideration of the risk and appropriate management. 22. Signs should be placed at any access points e.g. gate or stile. 23. The use of symbols is helpful for children. 24. Signs should only be used (and otherwise should be removed or securely covered) when the animals to which they refer are in the field. 25. Signs must not deter the public from using the right of way/access rights. 26. Signs can, however, be used to indicate that no public access exists in a particular location. (Locked gates are also useful in deterring trespass). 27. Suitable signage might be: - where there is a bull in the field: a symbol of a bull and accompanying wording: Bull in Field - where there are cows and calves: a symbol of a cow and calf and accompanying wording: cows and calves in field. 28. For guidance on signs see: HSE Information Sheet Cattle and Public Access in England and Wales w.pdf 29. Signs should NOT suggest that the animal is aggressive or dangerous (such animals should not be kept where there are public rights of access). Therefore, it is advisable not to use words such as beware or danger. 30. Livestock owners who wish to remind the public of their responsibilities on public rights of way near livestock may wish to use additional wording taken from the Countryside Code: We want you to enjoy the countryside. Please respect it by taking litter home and leaving gates as you find them. Dogs should be kept under close control. If a farm animal chases you and your dog, it safer to let your dog off the lead don t risk getting hurt by trying to protect it. 31. Landowners who wish to use signs should first check with their insurer before placing signs, and also check that the insurer is content with the wording of any such signs. Public Path Diversion Orders 32. It is sometimes possible to divert public rights of way by way of application to the highway authority. This can only be done if the proposed alternative route is as convenient and enjoyable for the public. The process is often slow and expensive and there are some highway authorities who, because of resource issues, will not process applications for diversions. 33. However, many authorities are sympathetic to applications to divert public footpaths away from areas of intensive cattle use buildings, cattle yards, small calving fields etc. 34. A path diversion may be helpful for small areas of particular concern, but is not a solution for areas of widespread cattle use. 5

6 Section 31(6) Highways Act Members attention is drawn to the provisions of Section 31(6) of the Highways Act This provides protection against claims of new rights of way through use of a route by the public. 36. It is also of use in publicly asserting the existence of public rights of way and, consequently, the lack of public right to enter onto other areas of a holding. 37. Separate guidance is available from CLA on how to complete the required map, statement and statutory declaration under s.31(6) [at the time of writing this is currently being updated]. Permissive Paths 38. Members who offer permissive access should be aware that the status of users of that permissive access is that of a visitor (under the Occupier s Liability Act 1957). 39. Members should always make their insurers aware of the presence of any permissive access on their land. CLA LINE Members are advised to comply with their responsibilities under legislation, and to take full account of the good practice guidance set out within Health and Safety Executive information on cattle and public access. Members should be aware of the dangers that cattle and other animals can pose to members of the public, and the risks that may arise from even apparently docile animals. Members should continually monitor and assess the behaviour of the animals with the public, and should take action accordingly. USEFUL LINKS HSE guidance on Cattle and Public Access in England and Wales is available at: The following publications may be downloaded free from Natural England at _to_know/managing_the_land/land_manag ers_and_access_authorities 1. Managing Public Access: A Guide for Land Managers 2. Signs on Access Land in England: Guidance for Land Managers 3. Countryside Code sign template for use of Open Access Land For information on the Countryside Code, see: _to_know/countryside_code The leaflet You and Your Dog in the Countryside can be downloaded from: _to_do/dog_walking COUNTRY LAND & BUSINESS ASSOCIATION A full assessment of those risks must be made, and, ideally, recorded, and appropriate action taken to minimise that risk. This may mean a variety of measures, from locating cattle in different fields, permanent or temporary fencing, the provision of signs or the relocation of feed areas away from public access. 6

COASTAL ACCESS: Summary of relevant duties and liabilities. Introduction

COASTAL ACCESS: Summary of relevant duties and liabilities. The guidance contained in this publication has been developed by the CLA with input from Natural England and Defra. This guidance has no official