Shoot owners cannot ignore the law governing workers, guests, neighbours, buyers and even trespassers
We live in an increasingly litigious age with civil claims that often beggar belief. However, regardless of who we think is to blame for our increasing willingness to go to law, the fact remains there is no such thing any more as an ‘Act of God’ in the common consciousness. The maxim ‘where there is blame, there is a claim’ has, to many, become a creed. Here I look at five commonplace legal liabilities for anyone running a shoot or stalking syndicate within the English and Welsh legal jurisdiction. This is not intended as a scare story, just a reminder that, without due care and attention, you could end up in an entirely avoidable spot of bother.
1. Liability owed to trespassers
If someone enters your land without your permission and injures themselves, it can’t be your problem, right? Wrong. Under the Occupiers Liability Act 1984, an ‘occupier’ (meaning someone in control) of ‘premises’ (which includes farmland, woodland, buildings, vehicles or farm machinery) could owe a duty of care to a trespasser who injures themselves in certain circumstances.
For a liability to be imposed it would need to be proved that; (a) the trespasser injured themselves on a danger which the occupier knew about; (b) the occupier knew or had reasonable grounds to know that a trespasser may come into contact with the danger and; (c) the danger was one which the occupier ought to reasonably be expected to have provided some protection from. This duty is likely to be more liberally imposed in cases where the trespassers concerned are children.
So, should a shoot owner know that people regularly shelter in a condemned shoot shed, or a stalker is aware that children often play in an unstable and abandoned high seat, he or she will run the risk of a civil liability should they not take all reasonable steps to remove the danger or at least warn the trespassers to keep away.
2. Liability owed to guests
It will, therefore, be of no surprise that an occupier owes a duty to take all reasonable steps to ensure an invited person is reasonably safe when using their premises, this time pursuant to the Occupiers Liability Act 1957.
A broken handrail up some rickety stairs in a lodge, a very slippery set of garden steps or a badly maintained shoot wagon are all likely to be held to be causes for the imposition of a civil liability should an invitee fall foul of them. The key to avoiding such a problem is one of common sense. One should identify, remedy and continue to monitor anything which may pose a risk to others. Records, if possible, should be full and kept for at least three years.
3. Liability owed to workers
The Employment Rights Act 1996 defines an ‘employee’ as someone who has entered into or works under a contract of employment. This contract could be written or oral. It is likely to be deemed operative even should the pay be in kind: for example, beaters being paid in pheasants and lunch or with a days’ shooting.
A shoot owner or syndicate may well owe their employee a far greater range of obligations than they may have anticipated, such as providing training for any lifting or manual handling or the provision of protective clothing. Stricter duties are also likely to apply in relation to the provision by the employer of safe ‘places’ and ‘systems’ of work.
4. Liability owed to neighbours
Most people will be aware that anyone owning or running a shoot will owe a duty to their neighbours not to unreasonably cause them any danger or nuisance. However, here, I shall focus upon a usually less considered means by which liability could be imposed upon the sportsman – that of retrieving a runner or following-up a wounded deer.
In the case of even a well-shot deer or well-hit cock pheasant, such runs can be of several hundred yards. A lightly wounded deer could plausibly run miles. However, if those following up do not have an amicable arrangement with their neighbours, doing so could be fraught with legal difficulty.
Entering another’s land without permission is a trespass – both a civil and criminal offence. The tort of trespass does not require the establishment of any actual loss or damage, but a disgruntled neighbour could expect to receive an award of damages of a few hundred pounds or so. Such damages may well be inflated should the trespasser still have their gun under their arm or rifle over their shoulder, or come within the locality of a public place.
Removing dead game from land belonging to another could constitute a theft, be classed as poaching or be held to be a conversion (civil theft). The latter could be alleged with a demand to pay damages commensurate to the value of the carcass.
5. Liability owed to buyers
As in any kit-heavy sport, we are all likely to buy and sell things we need. Various acts of parliament impose legal liability upon anyone selling any item or service not meeting certain criteria, particularly should the seller be construed as acting in the course of a business. Their provisions are, however, largely unsurprising and unobjectionable.
For example, there is an implied warranty that the goods or services are actually owned by the seller; they meet the reasonable description the seller supplies; are of reasonable quality and that all pertinent information relating to them and their delivery is made known to the purchaser up front.
The law has long recognised that sellers are entitled to talk up their wares, but should something for sale be significantly mis-described, the seller could end up facing a civil claim. Thus, it may be fine to describe your labrador puppies as ‘beautiful and well behaved’, as this inherently is acceptable opinion. But to describe them as of ‘perfect working temperament’ could be unlawful if this description does not meet the reality.
Prevention really is better than cure in cases of law
Litigation – particularly for a defendant party – is not only very stressful, time-consuming and unpleasant, but it can also be ruinously expensive. Even the legal costs one would have to meet before an action goes anywhere near a court could run into thousands of pounds. Therefore the consequences could be life-changing for those without any or sufficient insurance. Please take heed and think about any steps you could take to avoid legal pitfalls.
Thomas Crockett is a barrister specialising in civil law, with a particular interest in countryside related law.