As the Crow lies

With the new right to roam capturing the public's attention, David Murray Wells examines the implications of the Countryside and Rights of Way Act 2000 for brokers, farmers and landowners

The martyrdom of an activist under the hoofs of the King's horse in the 1913 Derby was hugely symbolic to the suffragette movement and, in a similar vein, ramblers revere the mass trespass on Kinder Scout as the first step towards emancipation. It was a great pity, therefore, that simultaneous celebrations to mark both the 70th anniversary of this event and the commencement of legislation to allow open access to such land should have been marred by pro-hunt demonstrators.

Nevertheless, the Countryside and Rights of Way Act 2000 has introduced new legal rights for people to walk freely on 'access land' - generally mountain, moor, heath, down and registered common land. Known colloquially as the 'right to roam', this groundbreaking law defines clearly mapped areas of the country, over which ramblers now have unrestricted access.

The new rights came into force in the south-east and lower north-west of England on 19 September and other areas of the country will be covered in a rolling programme ending in November 2005. Scotland and Wales are not included in this legislation.

Open day

Brokers will immediately recognise that open access for walkers creates serious liability issues for landowners and farmers. People will be entitled to wander wherever they wish, seeking out interesting features and exploring potentially dangerous sites. Opinions have already been aired about the risks inherent in disused Cornish tin mines and in marshy sinkholes, to mention only two of a multitude of dangers. The legislation is already in force, however, and brokers must advise their clients on the impact of CROW and their new responsibilities towards ramblers taking advantage of their right to roam.

The current duty of care owed by farmers and landowners to walkers is enshrined in the Occupiers Liability Act 1957 and its successor in 1984.

The former sets out the duty of care owed to visitors - people invited or permitted to use the land - whether expressly or by implication. Visitors in this sense also include postmen or children on a pre-arranged school visit. Occupiers must take reasonable care that these visitors will be reasonably safe, except where adults willingly accept risks on their own behalf or of anyone in their care.

Duty of care

The Occupiers Liability Act 1984 sets out the duty of care owed to people not entitled to be on the land, such as trespassers. Normally, a duty of care is still owed if there is a danger against which occupiers should reasonably be expected to offer some protection. It may be possible to discharge this duty of care by warning people about a danger, for example with a notice, except where extra precautions are obviously needed, such as with unsupervised children.

The good news is that there is a reduced level of liability whenever CROW access rights are in force. The higher duty of care under the 1957 Act does not apply at all towards people exercising the CROW access rights, even the lower duty under the 1984 Act is further reduced.

Unless an occupier sets out to create a risk, or is reckless about whether a risk is created, they have no liability for damage or injury caused by any natural feature of the landscape or by people crossing walls, fences or gates. In deciding whether there is any liability under the 1984 Act, the courts will have particular regard to the fact that CROW access rights ought not to place an undue burden on farmers and landowners. Attention will also be focused on the importance of maintaining the character of the countryside, including historic features.

There is some bad news, however. The combined effect of CROW and a recent court ruling has substantially increased the duty of care under the Animals Act 1971. Without examining the provisions of this Act, it is suffice to say that anyone controlling livestock will not normally be liable if the damage or injury was wholly the fault of the person suffering it or if they voluntarily accepted this risk.

Access all areas

If they were trespassing on the land where the animal was kept, farmers will not normally be liable - but remember that people are not trespassing while exercising CROW access rights. Consequently, with regard to the Animals Act, farmers should view all land within the access area on the same basis as a public footpath.

On the subject of public footpaths, a recent court case (Donaldson) concerned ramblers that left a gate open and allowed livestock to escape onto the road. A motorcyclist was badly injured when he collided with the livestock and proceeded against the farmer. The Court of Appeal supported the decision of the lower court - that the owner of the cattle had been negligent because it was reasonably foreseeable that ramblers may leave a gate open on a public footpath. The farmer should conduct a risk assessment and pay for extra precautions such as a self-closing mechanism or a kissing gate to be installed.

Clearly, the high-profile House of Lords' judgement involving horses, in Mirvahedy v Henley (2003), has now been extended to cattle, thereby imposing a higher standard of care on those keeping livestock beside public highways. If the field in question happens to lie within a CROW access area, it seems logical that precautions should be taken on the grounds that walkers have unfettered access to all parts of that field.

For brokers whose clients include livestock farmers, there is plenty to discuss during the renewal meetings in 2005. There is no doubt that many farmers and landowners will be as anxious about walkers exercising their open-access rights as was the government of the day about the suffragettes.

Mix in legislation to ban fox-hunting and brokers will soon recognise that they will have to choose their words carefully when meeting clients in the countryside.

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