Ask H&H: liability for walkers

Q: I keep my horse at a small, private livery yard, and the field in which he is turned out has a footpath running through it. He can be scatty when turned out, and I have seen walkers, joggers and families pass through the field. I am worried that my horse might injure someone — if this happened accidentally, would I be responsible?

ANYONE is allowed on to a public right of way, and we are all asked to respect both property and open countryside under the “Country Code”, recommendations laid down by Natural England, the integrated countryside and land management agency, for the public’s safety.

Kerry Woodall rents a farm in Kent, which has a public footpath running through it.

“I do wish that the land was totally private, mainly for security reasons; however, there is not a lot that I can do about it, and it is a criminal offence to discourage rights of public access,” she explains.

“Thankfully, the footpath does not run through our fields, although it does pass right through the middle of my neighbour’s field. She has fenced it off and installed gates, so that people do not need to come into contact with the horses.”

This action is sensible, as the legislation for when a horse owner is liable for damage to property, or the personal injury or death of any person, is unclear. According to Lucy Jay, solicitor at Travers Smith, the interpretation of this legislation has been debated at length in the courts.

“As a result, situations whereby a horse owner is liable for damage caused by their horse have been established on a case-by-case basis,” she says. “This makes it difficult to know whether, in any given context, an owner will or will not be liable if their horse injures a walker or family passing through a field.

“In the leading case on horse owner liability [Mirvahedy v Henley], a horse escaped from his secure field and collided with a car, causing the driver serious injuries. Although there was no fault or negligence on the part of the horse’s owners, they were nevertheless found liable for the driver’s injuries on the basis that it is natural for horses to panic, and the owners were aware of that.

“This case sets an unfortunate precedent for all horse owners in that, no matter how careful you are, you could still be held liable for damage caused by your horse. The fact that you know he is particularly quirky when turned out makes it more likely that you could be found liable if he injured a passer-by.”

According to Lucy, owners may be able to avoid liability where the damage was due wholly to the fault of the person suffering it, or if that person voluntarily assumed the risk of damage, or was trespassing.

However, it is unlikely that any of these defences would apply to people using a public footpath through a field of horses, unless the people seriously provoked the animals in some way.

“These principles apply not only to horse owners, but also to those who have horses ‘in their possession’,” adds Lucy. “For example, people taking horses on livery could be held liable for any damage they cause.

“Because of the risk of no-fault liability as detailed above, it is sensible for owners to obtain adequate insurance cover for third-party liability, which is provided by all leading equestrian insurers.”

Information

FOR legal advice, contact Travers Smith, Tel: 020 7295 3000 www.traverssmith.com

LANDOWNERS can request a copy of the Managing Public Access booklet from the Open Access Contact Centre, Tel: 0845 100 3298. For information on the Country Code, visit Natural England’s Countryside Access website www.countrysideaccess.gov.uk

WHEN taking third-party liability insurance, choose a reputable, well-known equine insurer. You may have cover included in membership to an equestrian organisation such as the British Horse Society or the British Show Jumping Association, but make sure you have adequate protection

LANDOWNERS should contact their local authority for clarification of legal status of rights of way

This Q&A was first published in Horse & Hound (19 April, 07)