Episode 3: What do I do if…someone is injured by my livestock?

00:00:02 David Lee, Host

Hello and welcome to Podcasts by Brodies, my name is David Lee, and in this series, we take an in depth look at some common, and not so common, questions and scenarios Brodies lawyers have faced over the years.

In each episode we talk to Brodies experts to hear their insights and experiences and how they find the right approach when they're asked this deceptively simple question, “what do I do if...?”

Our current focus is on health and safety and land and rural business and I'm joined for this episode by Kate Donachie, managing associate and Jennifer Stevenson, a senior associate both with Brodies, and we're asking a very specific question, but a very real one for farmers and landowners, "what do I do if someone is injured by my livestock?"

Jennifer first of all, in this context, what do we actually mean by “livestock?”

00:01:01 Jennifer Stevenson, Senior Associate, Brodies LLP

So this has changed very recently and the definition of livestock used to mean cattle, and that would include bulls, cows, heifers and calves and as you'd expect, sheep, goats, pigs, horses, or pork poultry.

But following the introduction of the Dogs (Protection of Livestock) Scotland Act, which just came into force in November 2021, the definition has been extended to also include things like alpacas, llamas, buffalo, ostriches, farmed deer and also include game birds as well as all the other previous categories that we had under livestock.

00:01:45 David Lee, Host

OK, so that new category now takes in llama dramas as well as everything else that you've talked about. So Kate, how common is it for livestock to injure people?

00:01:55 Kate Donachie, Managing Associate, Brodies LLP

I think in the first place it's worth seeing after establishing that really quite expansive definition of livestock, the vast majority if not all deaths by livestock are actually caused by cattle, cattle and Buffalo.

Regardless, fatal injuries are thankfully quite rare. The HSE (Health and Safety Executive) publishes a report of deaths in rural businesses in agriculture every year. And for 2020-2021 there were 11 people killed by cows and buffalo. It's the second biggest cause of fatal accidents, just to put it in perspective. The biggest cause of fatal accidents in the rural sector is people being killed by moving vehicles, 13 people were killed last year in accidents involving moving vehicles, against the 11 who were killed by livestock and taking a wider lens over the last five years, 19% of deaths in the sector have been in animal attacks, whereas 30% of deaths were due to moving vehicles.

So it's fairly significant in terms of in terms of what does cause fatal accidents.

00:03:07 David Lee, Host

And are those figures related to Scotland or is that UK wide, Kate?

00:03:10 Kate Donachie, Managing Associate, Brodies LLP

That's UK wide and also those figures relate to all people who are killed by livestock and the majority will be people who are working in this sector.

I think the HSE did a bigger study covering the years between 2015 - 2020 and of 142 instances, 22 were fatal, and four of those 22 deaths were people who were members of the public. So people who were walking over the land. So hopefully that gives you a feel for what the risks are.

00:03:45 Jennifer Stevenson, Senior Associate, Brodies LLP

Yeah, and obviously you know it's not just the public we're talking about.

It's obviously extremely distressing for the people involved as well, we're talking about the owners of the livestock. It's really stressful for them dealing with the fallout of an accident on their farm and Kate will explain after this about how they deal with that.

But I think the kind of final point on the commonality of instances of injury on farms is that, we're not just talking about bulls. I think that's quite a common misconception with the public, that bulls are more dangerous than cows, and but the reality is that more people have been killed in Britain by cows than bulls.

00:04:29 David Lee, Host

OK, and can you give some specific examples Jennifer and how this might happen?

What tend to be the circumstances where these injuries by livestock might happen?

00:04:45 Jennifer Stevenson, Senior Associate, Brodies LLP

So a cow protecting their calves could perceive a walker or runner, dog walker, as a threat and try to put distance between themselves and the calf. So how they do that is they kind of charge the person back in in order to protect their young to try and get that that distance between the two. It is an entirely natural mothering instinct for cattle to do that, and when they've got a calf at foot or they've just a calved.

In a serious example, a cow or herd of cows could trample a person to injury or death. And some specific examples of that is that in 2020 there was a teacher from North Yorkshire who was killed by a herd of cows in this field - he was out walking dogs in a field and he was killed by the herd. There was also a group of people attacked elsewhere in Yorkshire the same year, and an 82 year old lady was knocked to the ground and trampled, and her dog was killed.

00:05:44 David Lee, Host

And Kate, I believe that there was another serious incident closer to home, actually in the Pentlands in - just outside Edinburgh.

00:05:52 Kate Donachie, Managing Associate, Brodies LLP

That's right, in 2020, during lockdown, there were actually a few incidents near Edinburgh.

The one you might have in mind was a man who was I think, pinned to the ground by a cow, who kneeled on him and struck him with it's head several times. And I think that story really surprised people because they just didn't think that a cow, especially as Jennifer said, rather than a bull, would attack them, and in that serious a way.

So even where it the instance not fatal and it can still be a really serious injury, and obviously a very shocking experience for someone.

00:06:28 David Lee, Host

So we've established here, it's not that common, but it does happen. It can be very serious. It can at times be fatal.

So from a farmer landowners' point of view, Kate, if someone is injured by livestock on your land, what should you do?

00:06:43 Kate Donachie, Managing Associate, Brodies LLP

Well, the first thing to do, the most important thing is to make the situation safe and that might involve removing the livestock from the scene, or it might involve removing the person who's been injured and then to seek medical care. So that that's obviously the first thing that you should do.

But once those immediate issues have been resolved, you should contact your insurer to let them know that this has happened. Even if it doesn't seem like there's going to be a claim or any further action if you don't tell your insurance company about something, some policies have wording, which means you won't have any cover if something does come in down the line. So it's important that these things are reported, as I say, even where you might not think anything more will come of it.

If the police or the HSE want to investigate - which is not unlikely if someone seriously harmed - it's really important that you obtain legal advice.

Although the authorities in their powers they have to investigate are really quite wide-ranging, they're not entirely unlimited, and it's important to know what you are and aren't compelled to do. And it's also key that this situation within your operation is communicated clearly and accurately to the investigators because the decision about what to do will be coloured by the general culture within the business.

So accidents do happen, but the HSE's decision and the difference between a prosecution and no action being taken is, really, the HSE being satisfied that the operation is well run and that health and safety is given prominence within the activities. So for those reasons, I think it is important that legal advice is secured as soon as possible so that you can be supported on the ground.

00:08:28 David Lee, Host

And what if something does happen, Kate, what is your liability as a landowner?

00:08:34 Kate Donachie, Managing Associate, Brodies LLP

Well the worst-case scenario is that you would be prosecuted for a criminal offence for a breach of your health and safety duties, and you could go to prison. You could face a fine, and the fine is calculated with reference to the businesses turnover, not profits, turnover and so that could be quite punitive.

You could also be sued for damages. [RS(S14] . In terms of a claim for damages, you would hope that your insurance policy would cover that, but insurance will not cover you for the cost of a fine and obviously insurance is not going to protect you from a prison sentence.

So the accident that Jennifer mentioned where the man was killed following attack by cattle, the farmer was sentenced for that in February 2022, and he was sentenced to 12 months in prison for that offence. Now it was suspended, so he didn't actually go to prison. He was fined less than £1000, had to pay court costs around £7000, but the court there said he should have had warning signs alerting walkers to the fact that there were cows in the field and there was a risk and actually that he should in fact have fenced off the cows. So that was a duty on him to do something positive, but I think it just underlines how serious the consequences can be if something happens.

00:09:51 David Lee, Host

OK, and Kate just touched on a bit of this, Jennifer, but what can you do to reduce those risks to ensure that this kind of incident doesn't happen in the first place?

00:10:03 Jennifer Stevenson, Senior Associate, Brodies LLP

Yeah, there's a number of ways that a farmer can kind try and reduce the risks.

They should try to use fields that are not likely to be used by the public when they have cattle calving or cows with calves at foot. In situations where they have no other option to have cattle in fields where the public tend to walk through, they should be erecting signage and have that on their gates and fencing and they should try to keep the signs time limited and fresh so that people know that the information is up to date.

Enclosures should be secure and gates should have them pinned and on chains on to make sure that the cattle themselves can't open them, and also children couldn't open them either.

And they should assess the risks on a continual basis, so they should be checking livestock every day and they you know, just keep, you know, keep a close eye on their stock in the fields.

Another good thing to do would be to post a message on a community social media page and that would be to inform the walkers and runners of particularly sensitive times, such as lambing or calving, and that's such a really great way to kind of spread the word in the community about what's happening.

You should also clearly mark alternative paths and avoid areas during particularly sensitive times. They should also take care to make sure that signs are not misleading. They shouldn't use wording like “dangerous or threatening animals” because, the reasoning there is obviously if they know that the livestock is dangerous, then it shouldn't be kept in the field where there is a possibility that the public would have access there.

There are some breeds of cattle that the health and safety executive have said that you just shouldn't keep in a in a field or enclosure where the public have rights of way. So those breeds particularly bulls of recognised dairy breeds, they're banned by the health and safety executive, so they're not to be kept in any fields where public rights of way statutory or other types of permitted access, including core paths.

It's really quite an onerous responsibility on a landowner to structure their arrangements and talk in order to protect the public. I think following simple steps, most of which can be actioned from a smartphone, and you can document evidence by taking a picture or video to record these steps taken and that just raises awareness that you should be assisting with reducing risk of injury to the public.

00:12:55 David Lee, Host

OK, and what you've just said there, Jennifer, just a follow-up question...it is quite onerous. It's quite a lot for farmers and landowners with busy lives to think about all of this - is your experience generally that farmers and landowners do take their responsibilities very seriously and do follow these steps, broadly speaking?

00:13:14 Jennifer Stevenson, Senior Associate, Brodies LLP

Yeah, I think most people are aware of the need to have signs up, particularly during calving and lambing and I think we'll come back to that later.

00:13:26 David Lee, Host

OK, and what about the principle of right to roam in Scotland, Jennifer, we hear a lot about that.

Are there any areas where the public can't go across fields or how does how does right to roam fit into this this complex area?

00:13:42 Jennifer Stevenson, Senior Associate, Brodies LLP

So I think that term is a little deceptive because what we actually have in Scotland is a right of responsible public access. So the idea of roaming around conjures up this picture of somebody wandering along unhindered, but the reality is that if there is no alternative route other than crossing a field with farm animals, a safe distance should be kept, and that the livestock should be watched very carefully.

The right to roam ideal does perhaps give walkers more confidence to take an alternative route off their own back, but as I've said, these rights only are given with the responsibility, and these are set out in the Scottish Outdoor access code.

So the owner of livestock has a difficult term of both intruding that animals do not pose a risk to the public, whilst at the same time not taking any actions which impede public access across its land. And a landowner cannot use the presence of animals to derail public access rights, rather, if a farmer considers an animal or animals pose a risk to the public, then steps should be taken to police those animals away from public access.

00:14:55 David Lee, Host

OK, and you touched before on sensitive times of year like calving and lambing - can farmers and landowners restrict access to fields or other areas at these times?

00:15:08 Jennifer Stevenson, Senior Associate, Brodies LLP

So any request you're going to make of the public has to be reasonable, practical, and appropriate for the type of operation and level of risk involved. The Scottish Outdoor access code says that you can take precautions, such as asking people to avoid using a particular route or area, or asking them not to undertake a particular activity. So for example with calving and lambing the sign would need to see "between X&Y dates either sheep or lambing in this field", or "the field is being used for young animals".

Then you could set out the particular hazard being that parent animals can be aggressive when protecting their young, and it would then be proportionate to say, “please use another route where possible” or “do not take dogs into this field.” And the code advising people not to take dogs into fields where there are young animals present. There are downloadable signs to this effect, ready to print out from the Outdoor Access Scotland website.

00:16:07 David Lee, Host

OK, and finally Jennifer, before we go back to Kate, it's a balance of rights and responsibilities as you've outlined between the landowner and the public who are going across their land.

How do you think that balance is working? Do you think, the public people that are walking through land, understand the potential dangers well enough? And is there more that can be done to transmit that?

00:16:34 Jennifer Stevenson, Senior Associate, Brodies LLP

I think it is a difficult one because we've got so much awareness about well-being. We know that we need to get out and exercise, and it's good for your mental health and everything to get out and about. And certainly, with a lots of kind of stay at home holidays there's lots of people coming to the countryside that perhaps didn't before, so I think we definitely need to raise awareness with the public on the dangers as well.

It is a difficult balance to strike and I also think it does put a lot of pressure on farmers and landowners as well because, they really don't know who's coming.

There might be tourists who might not be aware of the risks, or they just have no idea who could stumble upon their field. So they really have to exercise an awful lot of caution and just presume that the public don't know anything about their livestock, and don't know anything about the particular risk. So that the kind of onus really is on them to make sure that people are aware and signs are the best way to do that.

00:17:55 Kate Donachie, Managing Associate, Brodies LLP

I think that there is like a place here for some public education as well.

As Jennifer said, we maybe have more people in the countryside or more people who are less used to the risks and also the responsibilities of being in the countryside.

Dogs are an issue, so people walking dogs tend to be involved in something like 90% of these incidents where people are attacked by livestock. We know from issues farmers have with sheep worrying, that the animals can be injured, and something really badly injured by dogs behavior when they're coming into contact with these animals. So I think that there probably does need to be a better public education. You have you have the right to cross land in order to walk in Scotland, but you do, as Jennifer said, have responsibilities attached to that right, and it's supposed it's important that people understand what that means in practice.

00:18:49 David Lee, Host

OK, thank you Kate.

We have heard throughout this podcast that the onus is very much on the on the farmer and landowner and Jennifer indeed described it as quite onerous to actually take all these responsibilities on.

So, what's your main advice to someone who does have livestock in terms of reducing the risks and acting swiftly and appropriately, if an incident does happen?

00:19:16 Kate Donachie, Managing Associate, Brodies LLP

Yeah, sure, I agree with Jennifer, is it is quite an onerous duty on landowners.

I think the key thing is to be aware in the first place that there's a risk. That the risk of public being harmed by animals is there, and it's sufficiently significant that it needs action, but also that the landowners are obliged to take steps which might seem unfair. If you're being asked to restructure your livestock, so they're being moved to a different part of the farm, it might make your days longer, a bit more difficult to attend to the animals.

On some occasions people have been told to put extra fencing up, and that's obviously expensive, but also restricts a movement of animals in farms, so I think it needs to be recognised that this is it is a duty and it is onerous and what will be required can seem quite unfair or maybe over the top in in some instances.

But there needs to be real thought given to the risks, so landowners do need to be giving it serious thought to try and predict where people will come from and how they will behave when they're on the land. And there needs to be that constant work of checking that the fences that are there are still intact, that gates can't be opened by animals because that can happen.

So I think that it might require a change in the way some things are done on some farms for some farmers.

In terms of what do we do If it happens? Another important thing is to make changes when you do have an incident. So you might have a near miss or you might have an injury and there might be no action by the police or the HSE, but if it happens again, it's far less likely that there will be no action.

So the farmer who was convicted earlier this year had been told on several occasions, essentially to get things in order after previous attacks, and he hadn't done that. He had no good reason for not doing that. So, learning from previous incidents or previous mistakes is also really important in thinking about how things have happened in the past, how they can be prevented in the future.

But in terms of the immediate aftermath of something, as I said, getting people to safety and getting the animals to safety and then just taking care with any investigation by the police or the HSE that they have all the information and they have the most accurate picture of the business, so that you can persuade the authorities that this is a business that's well run and that takes health and safety seriously.

00:21:51 David Lee, Host

OK, thank you very much indeed, Kate and thank you Jennifer for your insights today.

Listen out for other episodes of “What do I do if...?” There are six in this series covering health and safety and land and rural business and they cover a wide range of very relevant issues to landowners.

This series is brought to you by Podcasts by Brodies, where some of the country's leading lawyers and sometimes special guests share their enlightened thinking about issues and developments in the legal sector and their impact on the wider society and the economy.

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