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Whose land is it anyway?

A recent decision by a High Court Judge may have a far reaching and profound impact on all land owners across whose land rights of way pass, and possibly by extension where “trespassers” regularly walk across their land.  The Judge in his concluding remarks provided the most telling commentary on the factors to consider when balancing the needs of those owning/occupying land and those exercising public rights of way.

He said, "If a balancing exercise is the proper approach, then excessive conduct on the part of either party is not allowed, but where should the boundary line be drawn?   I suspect this must be dealt with on a case by case basis, taking into account all the individual facts of each case.  At the end it cannot be doubted that the land owner enjoys the use of his land subject to the rights of the public to pass and repass over and along the footpath.  Thus where the interests under the balancing exercise are equal, then the rights of the public will prevail".

The implications are substantial.  There is an inevitable conflict of interest between the public and the land owner.   Clearly excessive conduct on the part of either party would not be a satisfactory position, but the Judge here found that, where the competing rights are equal, then it is the right of the public to be able to pass freely over the path and without risk of harm which must prevail. 

The Defendant in the case, a Mr Cameron, is a farmer.  A public footpath ran across some fields in his ownership. The public footpath was commonly used by locals and is shown on maps, but on the ground there is an additional path, a recognised "trod" which was found to be the commonly used route of which the Judge ruled that farmer was/should have been aware.

The Claimant had been told of this footpath and together with her partner had, on occasion, used it to walk to the village pub.  On the evening of the incident the Claimant was following this route with her Jack Russell puppy on a lead.  At some point, she was seriously injured by a herd of cows with calves at foot; the ages of the calves ranged from 5 to 9 months.  Again it cannot be doubted or emphasised strongly enough that the Claimant sustained extremely severe injuries which will have a long term and profound effect on her life.

The Law in this area is complicated and far too great a subject to cover in depth in such an article as this.  The Judge eventually found for the Claimant as a result of Mr Cameron’s breach of duty of care under the Occupiers Liability Act 1957. One other matter considered by the Judge was a Health and Safety Executive publication entitled “Agricultural Information Sheet Number 17 Keeping Cattle in Fields with Public Access” which gives guidance on areas such as whether it is reasonably practicable temporarily to fence public rights of way, warning signs and a recommendation that fields without public rights of way should be used for cattle when calving
 
Some of the significant findings in this case were:

  • The majority of users of public footpaths over agricultural land are likely to have no knowledge or experience of the dangers of livestock.
  • All domestic cattle can be unpredictable, especially if a strange dog is in the proximity.
  • That although the claimant had a belief that cows could be dangerous animals she did not appreciate the enhanced risk presented by cows with young calves, especially if a dog was present.
  • That the protective cow-calf bond lasts for at least 5-7 months beyond birth, and certainly beyond 1-2 months; on this point there was much scientific evidence which on its own could be the subject of considerable discussion and variance of opinion.
  • That there is a widely perceived danger created by placing cows with calves at foot in a field crossed by a public footpath, especially to walkers accompanied by a dog.
  • That the Defendant knew that the risk could be reduced or prevented by either (1) using another field for these animals, (2) fencing off the footpath, (3) erecting warning signs.
  • That the erection of signs/notices is not the correct answer, but that in this case (1) and/or (2) above should have been done.

It was clear that the Judge was of the strong opinion that the danger of being injured by cattle was one which was so obvious and so foreseeable  that the Defendant (and indeed any farmer or land owner) who ignored such a risk was taking a chance. 

What does a land owner do in practice?  Unfortunately there is no substitute for immediately taking advice both from solicitors and public liability insurers, and probably also from the National Farmers Union or any other representative body.

Land owners should be aware of this particular judgment and consider what reasonably practicable measures they may undertake. 

Unfortunately, this is likely to include an awful lot of expense.  While signs are recommended by the Health and Safety Executive, the Judge in this particular case dismissed the simple erection of signs as being the solution. 

This judgement concerns cattle, but the principle could potentially be extended to other stock, It could be argued that the only conduct acceptable (based on this decision) would be to ensure that every public right of way is fenced off in a safe manner i.e. proven to be impassable by the stock which are in proximity to that fence. 

However, a countryside with sanitised fenced off pathways would possibly not be the desired outcome for those wanting to enjoy the outdoors and the English countryside and certainly would place a considerable burden on its unsung custodians.

Nick Gutteridge is Head of Personal Injury at Burnetts. For further information, call Nick on 01228 552222.

About the author

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Nick Gutteridge

Nick Gutteridge is Burnetts' Managing Partner and an experienced Court of Protection Practitioner.

Published: Friday 27th November 2009
Categorised: Agribusiness, Serious Injury

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