Can't do a link to this article because it hasn't yet appeared in print, but it will tomorrow. Interesting stuff...
Courtroom victory for Eden woman trampled by cattle A WOMAN who is “lucky to be alive” after being trampled by cattle as she walked in fields near her Eden home has won her courtroom battle against a Greystoke farmer. Shirley McKaskie, aged 50, of Croft Barn, Greystoke Gill, suffered serious head injuries and was hospitalised for months following the incident at Millrigg Farm, near Greystoke, on 10th May, 2003. She sued farmer John Cameron for £1 million in a civil court action which ended this week with a judge ruling in her favour. However, Mr. Cameron’s legal team is to apply for permission to appeal against the judge’s verdict. Interim awards of £250,000 damages and £100,000 costs were made against the farmer, but put on hold pending any appeal.
The case, which has taken a year to reach its conclusion, could set a legal precedent which will have far-reaching implications. It has attracted national media attention and been watched closely by both farmers and walkers’ groups. Judge Howarth’s ruling runs to more than 200 pages <\m> the longest of his legal career, he told the court. In it he reviews evidence put before him at a three-day hearing in Preston last June and a further day in Manchester in October. He formally handed down his judgement at a hearing at Blackpool County Court on Wednesday. Responding to the ruling, Frank Matthewson, solicitor for Miss McKaskie, said: “She was lucky to survive the incident and as a result her life has changed beyond recognition. Against this background it is a huge testament to Shirley that she has managed to remain positive and happy in her life and especially so that she has managed to do it whilst facing the uncertainties of the litigation process. “I am delighted that Shirley’s wait for judgement is over and that judgement has been given on her behalf. I will now be working with Shirley and with the solicitors acting on behalf of the farmer’s insurers with a view to reaching agreement as to the level of compensation that Shirley should receive.” He added: “They have indicated that they wish to appeal, and, to that extent, the waiting continues.” John Cameron did not attend Wednesday’s hearing, but his wife and business partner, Mrs. Doreen Cameron, said she was “absolutely disgusted” at the outcome. The original hearings were told that Miss McKaskie had been walking her Jack Russell puppy across farmland at Millrigg where there was a public footpath. She had been walking from her home at Greystoke Gill to Greystoke, where she planned to meet her partner, Donald Cameron, in the village pub. Mr. Cameron is no relation to the farming family of the same name. He is managing director of Penrith firm Primasonics and of sister company Sibus International, where he and Miss McKaskie had worked together for 20 years. While walking she had been attacked by cattle from a 40-strong beef suckler herd of Simmental cross animals, including a number of cows with calves at foot. The judge was told that farmer John Cameron, seeing the cattle attacking Miss McKaskie, went to her aid and took her on a quad bike back to the farmhouse, from where an ambulance was called.
At the time of the attack she had veered away from the line of the footpath. However, in his ruling Judge Howarth states: “There are no signs of any sort to indicate the correct line of the footpath. Mr. Cameron must have been aware of this absence of signs. It is fairly argued on behalf of Miss McKaskie that Mr. Cameron plainly demonstrated a lack of concern which route was adopted by walkers when trying to use the footpath.” This, he said, granted an “implied licence” to members of the public to use the route which was taken by Miss McKaskie and prevented her from being classed as a “trespasser”. In his concluding remarks, which he says do not form part of his formal judgement, he notes that a “conflict of interest” can arise when a public footpath crosses farmland and that a “balancing exercise” might be necessary to find whose rights should prevail. “At the end it cannot be doubted that the land owner enjoys the use of his land subject to the rights of the public to pass and re-pass over and along the footpath. Thus where the interests under the balancing exercise are equal, then the rights of the public will prevail,” he adds. “If my view of a balancing exercise is correct then Miss McKaskie must win that exercise. The danger inherent in allowing cows with calves at foot is so great (even if the possibility of damage may be infrequent, but not so rare as to be legally ignored). “On the other hand, the disadvantage to Mr. Cameron of not keeping cows with calves at foot in Sealby’s Field and Bank Field is minor at the most, since, as has been demonstrated, they could have been grazed in River Field and House Field.” Finally, the judge addressed the fact that his ruling may in future be used as a legal benchmark. “It may be contended that this judgement can be used in future as a precedent. Any judge is naturally flattered by any such suggestion,” he said. “In later cases, even where the relevant facts are similar, it may well be that the expert evidence called leads the judge to a different conclusion.” He said it would be “entirely wrong” for another judge to “ignore the evidence” and “blindly” follow his reasoning. Mr. Graham Eklund QC, on behalf of John Cameron, sought permission from Judge Howarth to appeal against the ruling, but was refused. He stated his intention to apply to the Court of Appeal for permission to appeal against both the ruling itself and a last-minute amendment requested by Miss McKaskie’s lawyers and agreed by the judge. At Wednesday’s hearing there were lengthy legal submissions about the grounds for any appeal and the judge’s refusal was, he said, on the basis that he saw “no real prospect” of an appeal being successful. At the original hearings it was stated that following the incident in 2003 an investigation was carried out by the Health and Safety Executive, which decided no action should be taken against the Camerons. John Cameron told the court that he had kept a group of suckler cows and a bull in the two fields containing the footpath for 12 years before 2003 without being aware of any problems. Following the attack on Miss McKaskie, he had continued to keep cattle in the field for two years before dwindling stock numbers meant he moved them elsewhere on the farm. The delay in handing down judgement on this case has in part been caused, Judge Howarth told the court, by his wife’s battle with bowel cancer, her diagnosis and fortnightly treatments having “turned his life upside down”.
Not sure where I really stand on this - never really agreed with the tendency to litigate over incidents that are basically unfortunate accidents.
Then again, when I was chased across a Surrey field by a herd and saved from being stampeded only by a rather ungainly 'vault' over a five-foot fence, I wasn't thinking too kindly towards the farmer.
These b*ggers were hundreds of yards away at the far end of the field and charged the full length of it when they saw me enter to cut me off from the gate at the other end.
BTW the article will be in the Cumberland & Westmorland Herald, which I believe was the only paper with a reporter present when the judge gave his decision.
The farmer (or his insurance) is usually liable to pay damages for injuries caused by cattle to the public. The main point of this case is that there is a defence to this if the injured person is trespassing. The judge has found that in this case where there was no clue to the correct line of the footpath that this wasn't a defence.
The main point as far as farmers are concerned is that their insurance premiums could rocket. A similar thing happened a few years ago with people who ran equestrian businesses and hundreds stopped doing so.
Never had trouble with cattle before until a week ago when I walked one evening along a route I have done may times despite cattle being in the one field I had to cross. A short uphill, diagonal path through a wide but short field on a diagonal slope across the field with a dip then rise to the lower left corner. I digress.
The only incident happened in this field when a beef bullock started running over to me which got the whole herd interested in me which was all bullocks of adolescent age I guess but had dairy breeds in with beef breeds. I had walked, as usual, between a few of the bullocks who promptly scarpered a little away from me. It was this one bullock who kind of got me a little spooked. This is typical of bullocks at that age to take interest in humans. They can push you around a bit but if you know how to behave around them they are usually alright
Unfortunately I do not know that much so my confidence dwindled and I walked slightly quicker and looked ahead to see how the flimsy wooden gate opened so I could get through it quicker. Which I did then turned around to see them about 2-3m from the gate standing there looking back at me wondering whether to come closer. They weren't so sure once I turned and leant on the gate facing them.
I then got a little brave as did they by coming closer. At which point I tried to stroke on on the nose. It baulked nearly tramping those pushing up behind it. Still eventually It started to trust me and I stroked it. Then along came a dairy bullock which mounted a closer one to get it out of the way as it wanted to check me out. I then crouched low, definately behind the gate, which got the bullocks to move closer as I was now lower than they were. I then stood up to trigger a shrinking back from the brave cattle. Such bravery from them and me behind my flimsy gate!
Needless to say I figured I now had to do the whole route as my way back was blocked now.
What I do think is we are on the most part ignorant of how to be around large animals. This is as much a danger as the animals in question. Farmers are around these animals day in day out and yet they manage. Is it the way they are around the animals, the way they have been brought up?
This has two consequences IMO. 1) just becaause the farmer has not had problems won't mean the public won't too. 2) we need educating ass much as the farmers who use the fields with footpaths for suckling calves when other fields are available. Or indeed farmers with other categories of cattle which present or may present risk.
I reckon my only incident was one encountered a lot with no ill effect and one that if I had known how to treat them would not have caused any concern on my part.
Well it has been the law since 1971 Guy, the Animals Act says "Where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage, ....". I can't see anything in this ruling that should cause insurance premiums to rocket after 40 years.
The defence relating to trespass is in Section 5.3.
Gd I talk crap don't I! <rhetorical question not wanting answering>
BTW You have to be careful suing IMO in cases like this. Can the farmer afford to pay-up? By this I mean will the subsequent increase in his liability insurance effect his farm's operation? Also what do you want out of the case? Is it to punish or to gain justified costs due to loss of work or even mobility. I do think there are valid cases but those that are all about the money and are treated as a means to get a bit of spending money perhaps to be used on luxury like holidays or 50" TVs are not. People often sue as they see it to be a way to hopefully get a bit of extra money. This case might well be a valid case of someone getting money for medical expenses or loss of work or money due to invalidity caused by the incident. Also can a farmer operate without the use of this field for this purpose? Perhaps footpaths should be diverted if that had been the case, which was not in this case. All I can say is that I hope she enjoys the holiday when the money comes in.
“In later cases, even where the relevant facts are similar, it may well be that the expert evidence called leads the judge to a different conclusion.” He said it would be “entirely wrong” for another judge to “ignore the evidence” and “blindly” follow his reasoning.
Above quoted from the judge's handing down...my reading is slightly different in that the judge considered that the farmer had the ability to forsee possible problems (cows with calves) and had a reasonable solution (use different fields) and the member of the public hadnt left the path deliberately and hadnt directly contributed to the problem herself...so, on balance the farmer is liable this time....but only this time...
It all depends on how the law is interpreted Doc. For example in the section of the Act you quoted it says "dangerous animal", but that could be just about any species under certain circumstances. A Shetland pony is not normally dangerous, but it would be if it were 10ft in front of you as you sped down hill on a bike. I believe the equestrian insurance issue arose because of just such a judgement/interpretation.
Sorry Guy....have to disagree with you on this one. It is not how the law is interpreted per se, it is how the law is interpreted with regard to the circumstances pertaining.....which is why case law is so important in this country....oh...just read yours again...and I see your point - we are possibly coming to the same place(ish)
and I refer you back to the judge's comments...I think he is doing his best to avoid setting a quotable precident so...I dont think this case is anything like as important as to release the flood gates of farmers being sued anymore than the possibility has been in place for years...
Don't like Shetland Ponies. They are nasty buggers IME. Been chased out of a field by one of them who had taken exception to our attention of one of the proper horses in the field. Was a mare too so don't know why it reacted. Other ones have been tempermental IME too. Just because something is small or short doesn't mean it is not dangerous. Small things can be more agressive.
Okay I was trying to be brief the Act does go on a bit and makes provision too for non-dangerous animals (like cattle) under different circumstances, but its quite clear that it applies to cows with calves. And the 1971 ACt wasn't anything new, it just clarified the common law which stretches back centuries that keepers of animals are responsible for injuries they cause. There really is nothing new here with regard to the damages and I see no reason why insurance premiums should rocket. Its certainly nothing to do with any new-fangled compensation culture, it has been the law for centuries.
"A recent House of Lords judgement holds owners liable for any injury caused by their animal while it is behaving in a way that is typical of its species. As a result, insurance premiums for equestrian businesses have risen by a staggering 200% in the past two years, forcing many businesses into liquidation.
Mrs Evans' Llanwnda Stables in Wales is one such business that is feeling the pinch: "My business has been directly affected by rises in insurance premiums. Unless the law is changed soon, horse riding establishments like mine will go out of business and horse riding will be something only wealthy people can afford to do."
Under the current law, an equestrian business can take every possible precaution, but if a horse is startled out hacking, the owner is responsible for any damage or injury it causes. This has lead to a dramatic downturn in the number of insurance companies willing to insure equine businesses and some companies now refuse to accept new clients.
To combat the problem the CLA is asking MPs to support a parliamentary motion, which calls for an amendment to the 1971 Animals Act, lifting the current insurance burden."
So it seems to me that it wasn't the Act itself that caused insurance companies to bump up their premiums, but the interpretation given it by the House of Lords. I'm not saying the same thing will happen in this case, but it might.
Round about that time I was working for the NFU/NFU Mutual Insurance and the problems that were arising for equestrian centres in particular was nothing to do with the general public but was to do with people having riding lessons/hiring a horse to go a bit of a hack etc and then being sued because the rider fell off due to the animals behaviour.....the point being that the riding school had a higher duty of care etc etc as they were providing instruction and guidanc.
Very different to the situation with cattle and footpaths...
