As the UK and Scottish Government's response to the COVID-19 pandemic sees restrictions tightened once again, many people will take the opportunity to exercise outside. Be it walking, running or cycling, Scotland has some fantastic scenery to offer. But recent examples of farm animals attacking members of the public serve to warn of the potential for livestock to cause severe injury.
Who can be liable when this happens and what can and should be done to avoid these incidents?
The key to preventing injury – and liability – is being aware of, and managing the risk posed by, the temperament of the animals and the people likely to be on the land.
Strict liability: The Animals (Scotland) Act 1987
In Scotland the Animals (Scotland) Act 1987 imposes strict liability, which means the keeper of an animal can be liable to pay damages in relation to harm caused by certain animals, even if the keeper has done nothing wrong.
Domestic cattle, goats or sheep are not automatically considered likely to severely injure or kill. This means that, where someone is injured by a farm animal, the question for the court will be whether the particular animal is "likely" to severely injure, kill or cause damage, and this will be considered on a case by case basis.
The keeper of an animal should consider not only the normal behaviour of livestock but also, whether they are "likely" to cause harm due to their particular physical attributes or habits or the way or place in which they are kept. An individual cow in a large field may not be a threat; but, given her size and physical strength, the situation may be different if she is accompanied by a calf, or feels threatened by cyclists or runners.
Occupiers' Liability (Scotland) Act 1960
An occupier is someone who has occupation or control over land. There can be more than one occupier of the same land – for example, where land is tenanted, and the landlord retains control over aspects of what occurs there.
An occupier owes a duty to those coming onto its land. The duty is to take reasonable care to avoid injury or damage caused as a result of dangers present there.
Livestock as a danger?
In the context of livestock, an occupier is likely to have breached this duty if it has not properly managed the risks posed by the public passing through fields containing livestock. It is important to remember that in terms of the Land Reform Act 2003, a landowner cannot use the presence of animals to deter public access rights. Rather, if an occupier considers that an animal, or animals, pose a risk to the public then steps should be taken to place the animals away from public access.
Managing the risk
The HSE has produced a helpful factsheet which sets out detailed practical guidance on managing the risks posed to the public by livestock. Although the first consideration is the general temperament of the breed, care should also be taken to assess the temperament of the particular animal and its particular circumstances, i.e. is it ill or does it have calves.
- enclosures should be secure, and gates closed with devices sufficient to prevent release by children or the animals.
- The assessment of the risks posed by the animals should be carried out regularly, on an ongoing basis; the HSE suggests that it is done at least once a day.
- Signs are important and can be a useful way of alerting the public to, in particular, the presence of bulls and cows with calves. Signs can be used to notify of specific risks and the behaviour which is required of people exercising public access rights. Occupiers should ensure that the signs are not misleading – any attempt to use signs to deter public access may prompt action by the local authority
It is clear that the owner of livestock has a difficult task in both ensuring that the animals do not pose a risk to the public while, at the same time, not taking any action which impedes public access across its land.
Striking the balance may not always be easy; but, when planning where animals should be kept, and any steps you have taken to secure fencing or enclosures, it is important to have the potential consequences in mind – not only the dangers to your livestock, but also your potential liability if they come into conflict with members of the public.