After a couple of false starts, it feels like spring is finally starting to arrive, and the better weather and longer days means more people will be getting out to the countryside and coastlines of the UK – and while doing so, potentially coming into conflict with the usual residents of the land: livestock. We previously reviewed the potential for a civil claim if a person is injured by an animal on your land; but, that is not the only potential legal action a landowner may face if there is an incident.
As the Health & Safety at Work Etc Act 1974 applies to both employers and self-employed persons, it will apply to almost all rural businesses – be it a farm, estate or forest. The 1974 Act imposes a duty on employers, and self-employed persons, to conduct their business in a manner ensuring, “so far as reasonably practicable”, that persons in their employment (section 2) or not in their employment (section 3) are not exposed to risks to their health and safety. Section 3 includes contractors, agency workers – or, members of the public.
Under section 33 of the 1974 Act, failing to discharge the duties under sections 2 and 3 is a criminal offense; And, as demonstrated in a recent case prosecuted by the Health & Safety Executive (HSE), what may on the face of it seem like an accident between an individual and livestock, could in fact be a crime. Mr Sharp, a partner in JH Sharp and Son, pleaded guilty to a breach of section 3(2) of the 1974 Act, after an 83 year old man was attacked by cattle in May 2020. Mr Tinniswood and his wife were following a public right of way, which went through a field where cattle and their calves were grazing. Mr Tinniswood was trampled to death and his wife sustained serious injuries.
Mr Sharp was awarded to 12 weeks in prison, suspended for one year, and received a fine of £878; and, an order to pay costs of £7,820.30. Following the sentencing, the HSE pointed out a number of measures which could have been put in place, to protect the safety of Mr and Mrs Tinniswood – such as, not using the field for cattle with calves, or separating the cattle from the right of way.
Ordinarily, the main difference between criminal and civil cases is the standard of proof. In civil liability claims, the case must be proved “on the balance of probabilities” – that is, it is more likely than not. In criminal cases, the prosecution must prove the case “beyond reasonable doubt”.
The other key difference between criminal and civil cases (in this context, usually compensation claims) is the standard of care. For a civil claim, the common law usually requires individuals to take “reasonable carefor others. The same standard applies under the Occupiers’ Liability (Scotland) Act 1960; and, the Occupiers’ Liability Act 1957 (in England and Wales).
In civil cases, it is worth noting there is also a higher statutory standard of care which applies when animals “likely” to severely injure or kill persons or animals are involved. In Scotland, this is set out in the Animals (Scotland) Act 1987. It means that (with some exceptions) an injured person only needs to prove that they were injured by the animal – they do not need to prove that the owner was in any way negligent. However, domestic cattle, goats and sheep do not automatically fall into the category of animals likely to severely injure or kill, unless there are other factors at play (for example, a cow feeling threatened when accompanied by a calf). Similarly, in England and Wales the Animals Act 1971 provides for strict liability for “damage” (including injury) by animals regarded as wild, or with “vicious or mischievous propensities… known or presumed to be known”.
The 1974 Act requires dutyholders to take all “reasonably practicable“steps to comply with sections 2 and 3. While taking certain steps may be sufficient to meet the usual civil test of”reasonable care“, if there are other reasonably practicable steps which could have been taken, there could still be a breach of the duty (and therefore a criminal offence committed) under the 1974 Act.
In addition, there does not need to actually be an injury under the 1974 Act for there to be a breach of sections 2 or 3 – an inspection by HSE, or a “near miss” incident, may be sufficient for a criminal prosecution.
Can I stop the public coming in?
While Mr Sharp’s prosecution was an English case, in Scotland, rights of access to land are established under the Land Reform (Scotland) Act 2003. The Act gives the right to cross land, and access land for recreational, educational and limited commercial purposes.
As noted in the article here, a landowner may in some limited circumstances restrict access rights; but, the 2003 Act prohibits undertaking any activity where the main purpose is to prevent or deter people from exercising their access right – for example, deliberately placing a bull in a field to prevent the public from coming through.
Where there is a legitimate reason to restrict access, the landowner must act responsibly and balance their access to manage access, and health and safety considerations. In one example, the court recognised that where a path was being damaged by horse riding, the proprietors of land could close a path to horses as part of responsible land management.
What do I need to do?
To meet their duties under the 1974 Act, landowners need to take any steps, and put in place any measures which would be considered “reasonably practicable” under the law to prevent harm to employees or visitors. This will vary depending on the individual circumstances, but could include measures such as:
- Identifying fields where there is a right of way, or footpath used by members of the public, and avoiding keeping animals which may cause injury (such as, cattle with calves or bulls) in those fields – for example, using them for other livestock instead .
- Separating any paths or rights of way from fields where animals are kept, for example, using fencing.
- Posting signage to warn walkers of animals ahead, such as bulls or cattle with calves.
Taking proactive steps to review the location of animals and access routes, and planning how to manage the interaction between the public and livestock, may make all the difference to show compliance with the law and avoid either a claim or criminal prosecution.