Our solicitor deals with this issue of people on your land.
This morning after my 11 o’clock tea break, I came across a man in one of my fields by the road. He was wearing a hi-viz jacket that said ESB on the back of it and was checking the ESB poles.
That’s ok – my problem is the field he was walking through has some cows and calves in it, including a cow that I consider a bit tempermental.
I have no problem with him going and doing his job, but he never called into the house to ask permission or to check that there was nothing to be on the watch out for.
Heaven forbid something happened him, but he a cow did decide to puck him and injure him, would I be held responsible?
The issues surrounding ESB’s right to access your land and a farmer’s responsibility for his/her livestock injuring a third party are hugely important to a farmer, whether the two issues arise simultaneously or not.
We will first look at the right of ESB workers to access your property. ESB have a Code of Practice in relation to access to land and/or premises and it confirms ESB have a right of entry to private property when on ESB business.
It also states that this right also imposes obligations to act with reasonable care, for example to ensure gates are shut properly on leaving. It further outlines that ESB will take reasonable steps to contact the owner of the land before entering the private lands and produce their identification card when introducing themselves.
Next we will look at your liability if that cow was to injure the ESB worker. The law surrounding the liability for damage and injuries caused by animals is different as it imposes what is called a “strict liability” on the owner of the animals.
This means that the injured person need only prove the incident occurred and your animal was responsible. Animals are placed into different categories and cows, together with all farm animals except for dogs, are considered to be tame or domestic animals. In relation to your cow, notwithstanding the “strict liability” imposed on animal owners, you will only be liable for injury caused if the cow has a ‘mischievous tendency’.
The Court previously deemed a sow which attacked a cow to be ‘mischievous’ as that sow had previously attacked other animals. You say your cow is “a bit temperamental” and I would therefore assume she has done something in the past and would fall into the ‘mischievous tendency’ category. If that is the case, then you would be liable.
The final issue to address in order to deal with your scenario is Occupiers Liability. An occupier of a property (which is the person who exercises control over a property) has a duty to take such care as is reasonable in all circumstances to ensure that a visitor to his/her property does not suffer loss or injury by reason of a danger on that property.
There are a number of categories of people to whom an occupier has a duty of care, but I will not go into them in detail here other than to say that if you are aware of a potential danger on your property, then you must take reasonable steps to put an entrant on notice of that danger, for example, a notice should be displayed at the normal entrance of the property.
This notice must clearly warn an entrant of the danger on the property. If an entrant reads the sign, understands it and enters anyway, then he may be partially liable for any injury he suffers thereafter as a result of the danger.
To conclude, the ESB worker had a right of access to your land to carry out ESB work, but ideally he should have taken reasonable steps to contact you beforehand to notify you he was entering.
However, if your cow which is “a bit temperamental” had attacked him and you did not have a sign erected at the gate warning of the danger of the cow in the field, then you could be liable for any injury so caused.
The ESB worker’s failure to take reasonable steps to contact you prior to entering could mean a Court would find the ESB worker was partially liable for his injury, but you could be primarily responsible.
The issue of Occupiers Liability and liability of famers for injury or damage caused by their animals should be given sufficient attention and it is important that all property owners erect clear, concise notices at the entrance to their property warning entrants of any potential dangers on their property.
Deirdre Flynn is from a farming background and practices as a Solicitor at Deirdre Flynn Solicitors, Cathedral View, Ardfert, Co. Kerry Tel: 066 7115695 Email: firstname.lastname@example.org
The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information provided, Deirdre Flynn does not accept responsibility for errors or omissions howsoever arising. You should seek legal advice in relation to your particular circumstances at the earliest possible time.
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