It is a common occurrence in rural Ireland, to meet cows on the road, whether they are being moved from one field to another, being moved for milking, or have escaped out of a field.
Meeting cows on the road can be extremely dangerous and it is important for farmers to do their best to ensure that their livestock do not escape.
Liability and the standard of care in such cases very much depends on whether the accident was caused by cows being moved on the public road or whether it was caused by escaped animals.
If a driver is alleging negligence against a farmer where the cows were being moved, the driver must firstly prove that the accident occurred when the cows were on the road and that the driver was taking all necessary care and precaution approaching the cattle and particularly so if the driver overtook them. The driver must prove this in order to show that he/she was not negligent in any way. The vehicle driver who is overtaking animals must take all necessary precautions. The Rules of the Road set out these obligations for both those persons driving animals and other road users
In principle, the animal owner is entitled to drive his animals on the roadway, but reasonable care must be taken by the controller of the animals to prevent them from causing injury or damage. The animals must be driven in an orderly fashion and the owner has to take care and precaution in doing so. The farmer has a duty to control the animals while they are travelling on the roadway. The farmer also has to ensure the orderly movement of the animals and be aware of other road users and that adequate signage and safety procedures are followed. The standard of “reasonable care” must be established which is judged on the balance of probabilities. In order for the owner of the animals to show that he/she took all reasonable care he/she must show compliance with safety procedures, for example adequate signage and the appropriate number of handlers and high visibility.
In the event of animals escaping out of a field on to the public road causing damage, a farmer must be in a position to show that he took reasonable care by having adequate fencing and a locked gate (if the circumstances require). The landowner is not required to prove how the animals came to be on the road, and the fact that the animals succeeded in escaping on to the road is not, of itself, proof of any negligence on the landowner's behalf.
Farmers should minimise the risk of liability by ensuring that they have a written document in place which outlines the procedure for carrying out stock movement in a safe, controlled, and responsible manner. Such a document would help to prove that reasonable steps were in place at all times so as to ensure that livestock were secure and that proper procedures were in place, should a claim arise. Stock-proof fencing is recommended. Landowners should ensure that livestock have sufficient water and grass available to them at all times, so that they will not stray because of thirst or hunger. It would also be prudent for the farmer to adopt a procedure which ensures that all gates leading on to a public road are padlocked.
Farmers have a higher duty of care in respect of dangerous animals, such as bulls. Farmers must have regard to the animal’s nature, type, species, breed, development and environment. Bulls are, naturally, regarded as being more dangerous than lambs, for example.
If the owner of the animals is able to prove that he/she took reasonable care to ensure that no damage would be caused by his/her animals escaping, then it is irrelevant how the cows escaped onto the public road. In many cases the animals will have jumped a fence or a stranger will have left a gate open, but this will not be considered if the farmer is found to have acted with the requisite standard of care which precludes a finding of negligence and ensures that the farmer will not be liable.
Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.
Disclaimer: While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.