A look at the rights and responsibilities of landowners to ensure the right to roam is enjoyed responsibly, protecting livestock and avoiding civil liability for harm caused to the public by animals.
The right to roam is an integral part of the enjoyment of the Scottish countryside. By law, individuals in Scotland have the right to access private land for recreational and other purposes, as long as access is taken responsibly. This right extends the right to roam to fields with animals used for common grazing, such as cows and lambs, with the Scottish Outdoor Access Code detailing the rights and responsibilities of landowners to ensure that the right is enjoyed responsibly, for the protection of these animals.
With the warmer days approaching, and hikers and tourists flocking into the countryside to enjoy their right to roam, it is imperative landowners fully consider the risks of loss caused by animals, such as lambs and calves in fields, that are within their ownership, to avoid civil liability. Conversely, landowners should also seek to mitigate risks to their own livestock caused by increased pedestrian traffic.
What happens if animals cause injury to a member of the public?
There are two distinct forms of civil liability for loss caused by animals.
The first is liability based on the fault of the owner. The second is strict liability, where liability can be established without the need to prove fault. This article will consider both forms and provide examples of where civil liability for loss caused by animals may apply.
Fault-based liability
The first form, fault, can itself be split into two categories: deliberate wrongdoing and negligence.
- Deliberate wrongdoing
If the owner of an animal deliberately uses that animal to cause loss, then they can be held liable for that loss.
One such example of this was the case of Ewing v Earl of Mar (1851), in which the Earl of Mar was held liable for the loss he had caused Mr Ewing by riding at him on horseback so as to place him in danger and in reasonable alarm.
- Negligence
Negligence is more complex.
For an owner of an animal to be liable in negligence, it must be proved that:
- they owed a duty of care to the person complaining of harm;
- the owner's behaviour breached that duty of care; and
- the breach of duty was the cause of the harm complained of.
For example, take a scenario where there is a field of cows directly adjacent to a main road. A farmer leaves the gate to the field open, one of the cows escapes onto the road and causes a road traffic accident.
In that scenario, a driver who has suffered loss may be able to recover that loss from the farmer, if they can show that the requirements for negligence have been met. With increased traffic in the summer months, and an increase in the number of pedestrians strolling along country roads, taking precautions to avoid liability in instances of negligence is paramount.
Strict liability
The second form of liability is strict liability. This refers to certain exceptional cases where loss caused by an animal can be recovered from the owner of that animal, without the need to show that the owner was at fault. In such cases, it is only necessary to show that the harm was caused by the behaviour complained of.
The Animals (Scotland) Act 1987 ("the Act") contains provisions imposing strict liability on the keepers of animals in certain circumstances.
The test set out in the Act has three limbs. A person can be liable for any injury or damage caused by an animal if:
- they were the keeper of the animal at the relevant time;
- the animal belongs to a species which, by virtue of its physical attributes or habits, if not properly restrained, is likely to injure or kill persons or animals, or damage property; and
- the injury or damage is directly referable to such physical attributes or habits.
The Act refers to "keepers" of animals, not owners. The keeper can be the person who owns the animal, has possession of it, or has care and control of a child under 16 who owns or has possession of the animal. Accordingly, liability could attach to, for example, farm workers who are in possession of the animal at the relevant time.
In terms of animals likely to injure or kill, the Act explicitly includes dogs within this class of animals. The Act also specifically includes those animals covered by the Dangerous Wild Animals Act of 1976, which includes the more exotic dangerous animals such as tigers, bears, and crocodiles.
The Act also explicitly defines cattle, horses, sheep, pigs, goats, and deer as animals likely to cause damage to land, or the produce of land, in the course of foraging.
It can therefore be seen that the Act could allow, for example, a person injured by a dog, or a landowner whose crops are eaten by cows that have escaped from a neighbouring farm, to recover their loss from the keeper of that animal, without having to prove that the keeper was at fault.
There are defences that are available to keepers in some circumstances. For example, a keeper may not be liable for injury caused to a person that was wholly due to the fault of the person sustaining it.
Protection of Livestock
With pedestrians taking to the scenic country routes this summer, it is important for landowners to put mechanisms in place to protect their own livestock.
While the Scottish Outdoor Access Code places responsibility on dog owners to keep their dogs under control, by:
- Never letting their dog worry or attack livestock.
- Never taking their dog into a field where there are calves or lambs.
- Where possible, dog owners should choose a route that avoids going near sheep, cows and horses. If entering a grazing area, it is mandatory that dog owners keep the dog on a short lead or close at heel and keep their distance from the animals.
Landowners and farmers should be aware of the Code, as there may be remedies against dog owners in breach. However, there are preventative steps to mitigate risks to livestock:
- using signage to alert to the presence of livestock; and
- checking fences are secure and livestock are properly enclosed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
