Following our article last year on animal liability (see Animal liability: Assessing the risk of cow attacks), and following further cattle trampling incidents in recent years, we now consider the implications of such incidents occurring on public rights of way.
Many public rights of way throughout the countryside cross over privately owned fields which are farmed and may therefore contain livestock (often cattle). Members of the public making use of these rights of way while walking dogs can potentially frustrate or disturb the livestock, causing them to act unpredictably and aggressively. The interests of members of the public in utilising rights of way therefore need to be balanced carefully against the interests of farmers to graze cattle on the land, particularly in light of safety concerns.
In 2022-23, three members of the public were killed in cattle trampling incidents while out walking their dogs[1]. In all cases, there were cows with calves in or near the fields where the incidents took place.
The Health and Safety Executive (HSE) has publicised advice for farmers, landowners and other livestock keepers relating to cattle and public access in England & Wales suggesting “reasonably practicable ways” of minimising the risk to the public[2].
The advice note explains that “Members of the public, including walkers and children, may not understand that cattle with calves at foot can present a risk due to protective maternal instincts, especially when a dog is present.” This is one of several points that should feed into the farmer’s consideration of where to keep livestock, and what other precautions to take.
In response to a trampling incident in 2020 which resulted in the death of one person and serious injury to another who were walking their dogs in a cattle field, a Prevention of Future Deaths Report (the Report)[3] published in January this year set out recommendations for preventing future deaths where public rights of way cross land containing cattle.
The Report noted that the “maintenance of safe public rights of way could be said to require oversight and management by public bodies as well as the landowners concerned.”
In response to the Report, Defra confirmed it is reviewing a “rights of way reform package”, but it is currently unclear what changes, if any, are envisaged towards applications to divert rights of way[4].
The Report encouraged the HSE to highlight in its Guidance the ability for individuals to make an application under section 119 of the Highways Act 1980 to re-route a public footpath crossing their land to separate cows with calves and walkers, as was done by the landowner in that case. The HSE said it would take these comments into consideration when the Guidance is next reviewed but maintained that it “is not the appropriate authority to comment on the Highways Act provisions and the oversight matters” mentioned[5].
Nevertheless, landowners should be aware that this is an option available to them where a public right of way crosses grazing land.
While diverting a right of way will not relieve a landowner of their health and safety responsibilities, it could reduce the risk of cattle attacks. Although clearly case specific, the Coroner remarked in the Report that the landowner’s application to divert the public footpath “may well eliminate altogether the risk identified in the incident field.”
The landowner’s application in the incident highlighted in the Report is yet to be decided. Due to objections raised against the application, the matter has gone to a public inquiry to be heard by the Planning Inspectorate. Once decided, this could provide a useful precedent for landowners and local authorities when considering s119 applications.
[1] HSE Summary of individual fatal injuries 2022/23
[2] HSE information sheet 17EW(rev2) Cattle and public access in England and Wales Advice for farmers, landowners and other livestock keepers May 2019 (Guidance)
[3] Michael Holmes: Prevention of future deaths report – Courts and Tribunals Judiciary
[4] Michael Holmes: Prevention of future deaths report – Response from Defra – Courts and Tribunals Judiciary
[5] Michael Holmes: Prevention of future deaths report – Response from Health and Safety Executive – Courts and Tribunals Judiciary
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