Increased access brings Insurance worries too

WHATEVER OTHER benefits it may have brought, the opening up of land under the Countryside Rights of Way (CROW) Act is likely to mean increased claims for farmers and landowners. That has focused attention on identifying and reducing risk.

At the same time, public liability claims resulting from accidents caused by falling or fallen trees, farm vehicles, water, ice, mud and straying livestock on roads often lead to huge compensation claims and large legal defence bills.

“You can take every reasonable precaution, but things can still go wrong. Whereas in the past unintentional damage or inconvenience would have been settled amicably, many incidences are now finding their way to court, where the only certain winners are the lawyers,” says Sid Gibson, underwriting manager at NFU Mutual.

“There is an increasing danger that, unless you have effective public liability cover, an incident beyond your control could result in the loss of your livelihood. It could be something as simple as someone tripping over a stone you had put on a footpath while building a wall.”

The average value of public liability claims at the NFU Mutual has risen by more than 70% in five years. Diversification enterprises account for a significant proportion of these claims and insurers should be informed of the implications of any new enterprise, says Mr Gibson.

The average figure for claims hides the huge number of small claims, typically damage by straying livestock, trips, slips and bumps on the farm. Then there are the small but significant number of very large claims, sometimes of more than £2m and often the result of serious injury from motor accidents where long-term medical care and daily living support will be needed for the injured. But in the experience of the Mutual, the rise in the number of liability claims has steadied recently. As well as motor vehicle injuries caused by collisions with farm vehicles, fallen trees or straying livestock, those sustained by members of the public and employees as a result of building operations on farms are the source of some of the largest claims.

PUBLIC LIABILITY

Farmers and landowners should check the level of their public liability cover, says Mr Gibson. Many policies have a 5m indemnity limit, but some are still as low as £1m, now considered inadequate by most advisers.

The cost of public liability insurance has risen by up to 15% over the past year, which represents a significant slowing down in the rate of rises. Over the past three or four years, however, the cost of public liability insurance has doubled for many businesses.

So far, CROW has not added to those costs, say brokers and advisers. Nor do they expect insurers to restrict cover because of the new access rights. It is the number and types of claim and the opinions of judges about the nature of hazards and liability when cases are tested in court which will determine any changes to the cost of this cover.

CROW

The Countryside Rights of Way Act 2000 does not bring any new legal obligations for land owners, occupiers and managers. A general duty of care can be owed to anyone (including trespassers) on property, by the occupier of that property.

The Countryside Agency has detailed information about liability on its website, which explains that if a duty of care is owed to non-visitors, under the Occupiers’ Liability Act 1984, it is reduced for owners of access land (www.openaccess.gov.uk).

“Unless you set out to create a risk, or are reckless about whether a risk is created, you owe no duty and cannot be sued for any damage or injury caused by any natural feature of the landscape (including any tree, shrub, plant, river, stream, ditch or pond, whether natural or not); or people passing over, under or through any wall, fence or gate, except by proper use of the gate or a stile,” says the CA.

“Although you could still be sued by someone exercising the CROW access rights in respect of other types of injury or damage, the court – in deciding whether you owed a duty of care, and if so what duty of care you owed, under the Occupiers’ Liability Act 1984 – would be required to have particular regard to the fact that the CROW access rights ought not to place an undue burden (financial or otherwise) on you; the importance of maintaining the character of the countryside, including features of historic, traditional or archaeological interest.”

These special liability arrangements apply only while CROW access rights are in force. They do not apply while the CROW access rights are excluded or restricted or on land where CROW access rights do not apply at all, even if it has open access under other rights or arrangements. In these cases, liability would revert to that under the 1984 Occupiers’ Liability Act.

OTHER LIABILTY

CROW landowners and occupiers may have other liability under the Animals Act 1971, says the CA. You do not have to be negligent to be liable under this Act, says the CA. “But you won’t be liable if the damage or injury was wholly the fault of the person suffering it, or if they voluntarily accepted the risk of it happening to them. If they were trespassing on the land where the animal was kept, you won’t normally be liable, but remember that people are not trespassing while exercising CROW access rights.”

There are further provisions in the Animals Act 1971 about guard dogs and dangerous species.

Natural hazards or features on access land do not have to be signed to avoid liability under the occupiers’ liability legislation, but landowners and managers can do so if they wish, says CLA chief legal adviser Karen Jones. Any liability for injury or damage through a non-natural feature will have to be tested, but the fact that the statute stipulates that the CROW access rights should not impose an extra burden on the occupier should be remembered, says Dr Jones.

One potential problem area is land which has former mineworkings underneath it, where it is common for holes to appear in the ground with no warning, due to collapse of old workings and airshafts being uncovered through weathering and decay. There is no legal opinion as to whether these should be considered natural or man made hazards, and so liability is unclear.

“You cannot apply for closure or restricted access on the grounds of danger to the public from a natural feature – the onus is on the people who walk there to find out what is there and to look after themselves.”

NOT INTERFERE

The government’s policy is that CROW access rights should not significantly interfere with land management operations or with economic returns from the land, or with the integrity of key wildlife and heritage sites.

Closure and restrictions to access land are available on land management grounds. Some of these are automatic, subject to timing restrictions and notification to the relevant authorities, and some must be applied for.

At the Royal Institution of Chartered Surveyors (RICS), William Tew points out that many recreational users of the countryside simply want a good walk, often of not more than a mile or so. Landowners with access land may want to consider signposting walks of varying lengths to steer access users around certain routes, he suggests, as this may help to reduce risk.

“Genuine ramblers will have maps and can read them. The challenge is to manage access around sensitive land uses.” For some, increased access will bring business opportunities, says Mr Tew, director of the RICS rural faculty.

Gerard Salvin of insurance broker Lycetts says landowners should inform their insurers of the status of the land and of any material facts affecting risk, such as quarries or old mineworkings.