Death of holidaymaker trampled by cows ignites debate over farmers' liability
The tragic death of a holidaymaker in Austria who was trampled by a herd of cows and the successful personal injury claim brought by her family has reignited discussion about landowners’ liability in law, writes Josh Hughes.
Finding the balance between protecting landowners from excessively onerous civil liability while ensuring lawful visitors are afforded adequate safeguards against injury from cattle is undoubtedly difficult.
From a farmer’s perspective, it is vital that proportionate precautionary steps are taken to minimise the risks of injury caused to lawful visitors by cattle upon the land they control.
Where they fail to do so, a court may determine them to be liable for those injuries. As it can be seen from the reported case, albeit in a different jurisdiction, warning signs by themselves may be insufficient.
But determining what measures are ‘reasonable’ is a complex and multifaceted problem.
In England and Wales, this area of law is primarily governed by the Occupiers’ Liability Act 1957.
Under this, the duty imposed upon farmers (the occupiers in control of the premises) is to take such care as in all the circumstances of the case is reasonable to see the visitor will be reasonably safe using the premises for the purposes for which he is invited or permitted to be there.
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Different issues and legislation may apply where a person is deemed to be, for example, a trespasser.
In considering if a farmer has taken reasonable care to protect visitors from foreseeable injury, relevant circumstances might include:
- Whether there has been an assessment of risks posed by cattle.
- Whether there have been previous incidents or near-misses.
- Whether the cattle are well handled and used to people.
- Whether the cattle have ever been known to react aggressively to people or dogs.
- Whether cattle have very young calves, and as such are more likely to react more protectively.
- Whether suitably visible signs have been put up, warning visitors to present dangers.
- Whether temporary fencing is justified, while ensuring rights of way are not obstructed.
Despite the disapproval of many in imposing duties of care upon farmers in these circumstances, it should be remembered a court will not readily impose undue burdens to incur significant social and financial costs to protect a minority against obvious dangers.
Furthermore, maintaining the character of the countryside is also a relevant factor when considering the question of reasonableness.
Neither does the law expect farmers to put up countless, oversized, brightly coloured warning signs or electric fences along each right of way to deter visitors.
In summary, the key question is one of reasonableness and farmers should be reassured that provided they are actively assessing risks posed by their cattle and taking steps to minimise them, they will go a long way to protecting themselves and others from liability and injury respectively.
After all, the law does not require eradication of all risks and ultimately, visitors have responsibility for their own safety.
Josh Hughes, head of complex injury, Bolt Burdon Kemp
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