Barker Gotelee

There have been a number of media stories in recent months about members of the public being killed or seriously injured by farm animals while following public footpaths across farmland.  Many have resulted in legal action being taken against the farmer.  The case of McKaskie v Cameron, previously referred to in this column in September, involved a member of the public (Ms McKaskie) being “attacked” by a herd of cows with calves at foot as she walked her dog on a lead across Mr Cameron’s field in Cumbria.

Farmers need to consider what lessons can be learned from McKaskie and similar cases in relation to their legal liability towards members of the public walking through fields containing livestock.  Although the Health and Safety Executive decided, after a detailed investigation, not to prosecute Mr Cameron, the following issues were carefully considered:

• Should Mr Cameron have allowed cows with young calves to be kept in a field through which members of the public were entitled to walk?  He knew that the risk posed by cows with young calves was greater and he could have put the young calves in fields to which the public did not have access.
• Should he have erected temporary fencing to protect walkers from the animals?
• Should he have displayed signs warning of possible danger?
• Should he have known that the cattle in question, Simmentals, were less docile than traditional breeds?
• Was he aware that walkers were following an unofficial route across the middle of the field rather than the prescribed route round the edge which was obstructed by stinging nettles and overhanging branches?

In the proceedings brought by Ms McKaskie against Mr Cameron, one of the key issues was whether Ms McKaskie, by not sticking to the “official” path, should have been treated as a trespasser.  A landowner owes a lesser duty of care to a trespasser than to a lawful visitor.  The judge concluded that Mr Cameron was aware that walkers frequently used the unofficial route across the field and had taken no steps to indicate the correct route.  He was therefore prevented from arguing that Ms McKaskie was a trespasser.

The decision in this case has caused livestock farmers much anxiety.  The immediate consequence seems to be that if you keep livestock in fields through which the public are entitled to walk and an injury or death occurs as a result of an “attack”, you will be liable, even if the person has strayed from the recognised path.

There is no doubt the law needs further clarification and that may well come from the appeal lodged by Mr Cameron which is yet to be heard.

Toby Pound

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