Next time you are out about in the countryside, spare a little time and cast your eye over the local fencing. How often do you see hedge holes being plugged by bits of corrugated tin? Or simply the fact that a whole section of fence has simply fallen down? Does anyone seem particularly worried about it? I would suggest not, after all what’s the worst that can happen? A couple of apologies? Maybe replacing a broken gnome… and a bit more tin or bit of wire rammed into the now bigger hedge hole. However, it could be very much worse and financially highly expensive.
Many of us are guilty of a quick fence repair at some point in our lives as after all we are busy people, with jobs or chores and livestock can be guaranteed to exit their field just when you are ready for work, on the school run, or maybe that rare event when you are actually going on holiday?
Fencing affects everyone even if you do not have livestock. Do you really want Farmer Dave’s herd of Jerseys munching their way through your award winning garden having grazed your lawn all night? But how many of us have actually sat down and thought about what could really happen if our stock escapes?
The law in England and Wales is very complex and in the majority of cases, legal opinion is split down the middle, especially when their lordships are interpreting the Animals Act 1971. Various factors come into consideration including the behaviour of the animal in question and the likelihood of the animal escaping. In McKenny & Anor v Foster (2008), a cow climbed a six bar gate, crossed a cattle grid and whilst standing motionless on the road was struck by a car resulting in a fatality. The claimant lost her claim unaware of the cow’s “dangerous behaviour” and that the means of escape was unique. However in the House of Lords decision in Mirvahady v Henley (2003) it was decided that the landowner was responsible for the accident caused by three equines “bolting” through a series of fencing and running on to a road where they collided with a car. It is understood that the reasoning between the two differing judgements lay with the mental state and demeanour of the animal in order to determine if the animal was dangerous. The cow, in McKenny, was simply standing there so the danger arose from its bulk and physical location. The equines in Mirvahady were spooked thereby increasing the danger which resulted in their erratic behaviour. Cases such as these have pushed our Public Liability premiums up and made us even more aware that we need to keep our livestock enclosed.
If stock escapes and damages another person’s land or property the legal ramifications can be almost as severe. Can you imagine your reaction if a crossbred stallion enters your property and services your purebred competition mare? Apart from being displeased, who is going to pay the vet bills or loss of use? The owner of the stallion will predominantly be liable and under the rule of Rylands v Fletcher there will be little that could used in defence. Therefore the onus was on the owner of the stallion to install and maintain appropriate and secure fencing. As the countryside becomes ever more enclosed with new buildings and homes, with many wishing to escape to the country we must consider what their reactions could be to finding a herd of cows investigating their new car. An example of an extreme reaction was reported in the Daily Mail online on 15th March 2011 when 30 escaped Friesian cows were rounded up and then shot by marksmen outside a hospital in broad daylight!
It is not only important to be fenced but it is vital that the fence is appropriate for the type of stock. Too often we hear of accidents occurring where cattle have made their way through a plain wire fence or horses become tied up in barbed wire so consider carefully what it is you need to keep in or out. Attention must also be given to who else may be using your land. If a Public Right of Way (PRoW) crosses your property, you must fence accordingly in order to be assured that you will be free from liability claims and possible prosecutions.
Sadly, there has been a rise over the recent years of members of the public being injured and in some instances killed by bulls and large livestock. There is specific legislation regarding what types of bull are legally allowed to be present on a PRoW, but there is no current legislation regarding stallions, Llamas, alpacas or rams. Barbed wire alongside a PRoW may not be a breach of legislation but Section 164 Highways Act 1980 states:
“Where on land adjoining a highway there is a fence made with barbed wire, or having barbed wire on or in it, and the wire is a nuisance to the highway, a competent authority may by notice serve on the occupier of the land require him to abate the nuisance within such time, not being less than one month nor more then six months from the date of service of the notice, as may be specified in it.”
In addition, clothing damaged by barbed wire is also actionable. Stewart v Wright (1893)allowed for the claimant to be successful in his claim for his coat to be repaired after it was blown onto a barbed wire fence and was consequently torn.
Currently there is no legislation preventing electric fencing to run alongside a PRoW, but warning signs should be displayed every 50m to alert members of the public that the fence is electric.
With the aforementioned in mind it seems evident that on one hand you, the landowner or occupier, must securely fence land to prevent livestock from escaping but not secure it so well that members of the public can be injured, deterred or prevented from gaining access if on a PRoW. The recent case Herrick v Kidner & Somerset County Council (2010)where amongst other things the decision gave legal weight to the possibility of a psychological obstruction, Mr Justice Cranston stated ‘There is no reason to confine interference to physical interference. An object can get in the way of the right of passage or other amenity rights because of its psychological impact.’ This would then suggest that if you over engineer your boundary fence by installing security style or deer fencing in order to prevent your stock from escaping or being allowed to escape, then you may well be placing yourself in a litigious situation if a PRoW subsists or is proven to subsist.
So where does this leave us? We know that the animals belong to us. We know that if they escape we could be liable for any damage incurred be it personal injury and property damage. Therefore we need to keep our livestock enclosed and safe from harm but not by contravening other statute or common law should a PRoW subsist. The only answer seems to be that the livestock owner must install a fence that reflects the size and demeanour of the stock and the proximity to a metalled highway. If you drive along any major vehicular highway you will notice the highway fencing running alongside. This has been designed and installed to prevent the majority of livestock types from breaching it. It is not the purpose of this article to persuade all you to install this type of fencing but here are a eight key points to remember: