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Independent.ie

Wednesday 7 December 2016

Who's liable for stock on a busy road?

Theresa Murphy

Published 27/10/2016 | 17:30

The first step in protecting yourself from any kind of claim is to insure your stock
The first step in protecting yourself from any kind of claim is to insure your stock

We look at legal questions and issues for farmers - including who is liable if an accident happens when moving cattle on a road

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Q: I am a dairy farmer in the unfortunate position that my milking platform is split by a national primary road. In order to keep the farm viable I have to use the lands on both sides of the road for grazing for a good part of the year. I have priced an underpass as I own the land on both sides of the road but the costs are prohibitive for me. I am always afraid of an accident on the road while my cows are crossing and I try to have a second person with me, however, this is not always possible. Where do I stand from a liability prospective if there was an accident?

A This query has come up time and again as farmers are faced with no choice but to continue the practice of crossing roads with cows despite increased volumes of traffic in recent years on many national primary routes.

It is essential to point out that the first step in protecting yourself from any kind of claim is to insure your stock against losses which could occur as a result of their actions.

You should inform your broker specifically if your stock cross the road as part of a twice daily ritual (even if only at certain times of the year) as this type of cover may differ from a farmer who only needs to insure against losses caused by stock that 'break out' onto the road. Bearing in mind the importance of this, it is always better to plan to prevent an accident occurring.

In this regard it is certainly worth having more than one person involved in the crossing of the animals. The test which the court ordinarily applies, when deciding if someone acted appropriately or not, is whether they took reasonable care for the safety of those road users that might be affected.

Depending on the number of animals being moved and the nature of the animals (e.g. are the animals used to crossing the road or not) it is likely that a court would consider one person inadequate to move animals if an accident were to occur in the course of the moving, particularly if an accident is as a result of the animals escaping.

I know that you have considered an underpass and these are obviously very expensive installations even where the local authority/roads authority are willing.

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It may be worth consulting with your local authority to see if there are any measures which can be put in place on the approaching stretch of road which may reduce the risk of an accident with traffic - for example, warning signage about the animals crossing.

The established principle used by the courts in relation to the driving of cattle on the road is that the cattle owner will only be liable for the damage caused if they are in some way negligent in the course of driving the cattle.

The court may consider actions like driving too many cattle at once or failing to have adequate help present to control the animals, negligent. For this reason you should closely assess your ability to control the animals while they are crossing the road.

This rule also applies to horses, sheep, goats, pigs, asses, domestic fowl and apparently even domestic deer!

Unfortunately, there is no hard and fast rule to indicate what will be considered a reasonable number of cattle to drive on the road.

However, it is likely that the courts will take the view that if the animals escaped/acted and somehow caused damage - there was inadequate help present to control the animals.

You should also keep in mind the reduced daylight hours and the impact that this will have on drivers approaching animals which are crossing the road. Again, you should talk to your local authority about a need for lighting if the milking time coincides with falling darkness.

Cattle Trespass: Another point worth considering for any farmer is the liability s/he will have if cattle stray from their owner's land to another person's land. In this case the cattle owner will be liable for any damage caused.

Fencing and break-outs: The law currently provides that the owner must take reasonable care that damage is not caused by an animal straying onto the public road. This suggests that the landowner should take care to ensure that the land is properly fenced.

The only exception to this rule is land for which fencing is not customary, for instance upland commonage lands. The courts have taken the view that animals properly cared for should not stray onto the road and so they tend to place an onus on the animal's owner to show that they took all reasonable precautions to keep the animals off the road.

The law in this area is a little unclear for a farmer in this position as there are a number of factors which will influence the safety of the road crossing, many of which will be beyond his/her control. In many cases where an accident occurs, once a driver can show that an animal was loose on the road, the onus will fall on the farmer to show that the animal was properly controlled and/fenced.

Theresa Murphy is a barrister at law based in Ardrahan, Co Galway. theresamurphy@lawlibrary.ie

Do you have a question for our team of experts? Email farming@independent.ie or by post to: Farming Independent, Independent House, 27-32 Talbot St, Dublin 1

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