Malcolm Galloway secures fine for farmer after walkers seriously injured walking through field.
Malcolm Galloway instructed by Katherine Lingley of DAC Beachcroft (Bristol) represented BF a farmer in East Devon who pleaded guilty at the earliest opportunity to an offence under s.3(2) HSWA 1974 after members of the public, walking with dogs on a lead, were seriously injured (one spent 7 days in intensive care) while walking on a right of way through BF’s field where he was keeping ‘Cows with Calves’
The HSE’s case was that BF knew there was a ‘general risk of aggressive behaviour’ when cows are with their calves and that it would have been reasonably practicable to have placed the herd with calves at foot in a field without public access or to have provided a permanently fenced path for walkers to use.
At sentence the prosecution submitted that BF’s culpability was ‘High’ as ‘he was aware of the risk of harm presented by cows with calves at foot’ and that the likelihood of level B harm occurring was medium (harm category 3) with an uplift for the serious injury.
The judge accepted the defence argument that simple knowledge of a risk does not equate to ‘actual foresight of, or wilful blindness to, risk of offending but risk nevertheless taken’ and that a number of measures had been put in place by BF. Due to the seriousness of the injury she moved up to harm category 2 but accepted the defence financial arguments at step 3 and applied substantial mitigation reducing the fine to one of £555.
Malcolm has been instructed in a number of similar cases and two are presently in the Crown Court awaiting trial on the issue of reasonable practicability.
