If you keep your horse or pony on a livery yard, you should understand what to expect and who is responsible for what.
Claire Rawsthorn from Cartmell Shepherd Solicitors provides a legal viewpoint, one of a series running in Equine magazine. This article first appeared in September 2016.
The function of a livery yard
At a basic level, livery yards operate by providing accommodation for horses in return for payment.
There
are different types of livery available, from ‘full’ livery, where the
yard will attend to all needs of the horses in its care, including food
and even exercise, to ‘DIY’ livery, where the owner retains
responsibility for the horse’s welfare and provides feed and bedding,
with the livery yard providing only shelter. There are varying degrees
of livery in between.
Legal responsibilities of a livery yard owner
Whatever
the level of livery, both yard and horse owners are strongly advised to
enter into an agreement with each other before the horse arrives at the
yard. This ensures that both parties are aware of their obligations. An
agreement should deal with key issues such as fees, type of livery
offered, insurance, welfare decisions and set out clearly the
responsibilities and liabilities of each party.
However, in addition
to any contractual obligations owed under a livery agreement, any
individual with responsibility for a horse, whether on a permanent or
temporary basis, is required, in accordance with The Animal Welfare Act
2006 (‘the AWA’), to ensure that the horse:
• has a suitable environment to live in;
• has a healthy diet;
• is able to behave normally;
• has appropriate company; and
• is protected from pain, suffering, injury and disease.
DEFRA
has produced a ‘Code of Practice for the Welfare of Horses, Ponies,
Donkeys and their Hybrids’. This sets out the action required to ensure
compliance with the provisions of the AWA.
If an owner leaves an
animal in the care of another person, the Code makes it clear that it is
the owner’s duty to ensure the keeper is competent and has the
necessary authority to act in an emergency. An owner does not abdicate
responsibility by leaving their horse in the care of a livery yard; the
responsibility is ongoing.
By the same token, however, it is the
duty of a livery yard owner to ensure the safety and security of its
horses and those who use their yards, with serious legal implications
for failing to do so.
The main pieces of legislation governing the operation of livery yards are as follows:-
The Animals Act 1971
A
horse is classed as a ‘Non-Dangerous Species’ under the provisions of
The Animals Act 1971. Section 2(2) of the Act provides that the keeper
of a non-dangerous species may be strictly liable for damage caused by
that species if:
• the damage is of a kind, which the animal,
unless restrained, was likely to cause or which, if caused by the
animal, was likely to be severe;
• the likelihood of the damage or
of its being severe was due to the characteristics of the animal, which
are not normally found in animals of the same species or are not
normally so found except at particular times or in particular
circumstances;
• these characteristics were known to the keeper or
were at any time known to a person, who, at that time, had charge of
the animal as the keeper’s servant.
For the purposes of the Act, a
keeper may be the owner of the animal or the person in possession of it.
As a person in possession of a horse, a livery yard owner may therefore
be strictly liable for damage caused by a horse under its charge,
should the horse stray and cause injury to people or damage to property.
Strict liability means that negligence on the part of the yard owner
does not need to be proved; that the horse had escaped and caused damage
is usually enough for the yard owner to be liable.
In the leading
case of Mirvahedy v Henley [2003] UKHL 16, the claimant’s car collided
with the defendant’s horse which had escaped from a field and run across
a busy road, after being startled by a sudden noise. The claimant, Mr
Mirvahedy, suffered serious personal injury. The Henleys, as the owners
of the horse and of the paddock where the horses were kept, were held
strictly liable, as keepers of the horse, for the claimant’s injuries.
The Occupiers Liability Act 1957
A
general duty of care is owed by owners of property to those who come
onto their property. The duty owed to visitors is higher than that which
is owed to trespassers. For this purpose, visitors are, for example,
owners of horses on the yard, farmers, vets and other equine health
professionals attending to horses on the yard, delivery personnel as
well as grooms and other stable help.
The owner of a livery yards
will owe a certain duty of care to lawful visitors to their premises
under section 2(2) of The Occupiers Liability Act 1957, known as the
‘common duty of care’, which is :-
“..to take such care as in all the
circumstances of the case is reasonable to see that the visitor will be
reasonably safe in using the premises for the purposes for which he is
invited or permitted by the occupier to be there.”
It may be possible
for property to owners to discharge their duty of care by giving a
warning of the potential danger; though only if, in all the
circumstances, it was enough to enable the visitor to be reasonably safe
(s2(4)(a) of the Act). It is also possible to exclude liability for
damage to property, by way of a disclaimer. Note though, that an
occupier can never exclude liability for personal injury or death.
It
is therefore important for a livery yard owner to take reasonable steps
to ensure that their property is free from hazards, for example by
ensuring that the appropriate fire precautions are taken, that all
buildings meet building regulations and are structurally safe; that hay
feeds, tack and equipment are safely stored and that the design of floor
surfaces and layout of buildings are free from hazard.
Insurance
The
legal defences available to livery yard owners are limited. It is
therefore highly advisable to obtain some form of insurance cover.
Public liability insurance
An
occupier of property that has regular visitors should purchase public
liability insurance to guard against negligence claims by members of the
public, and those who house their horses at the yard.
‘Care, custody and control’
Depending
on the type of livery offered, careful consideration should be given to
extending your insurance cover to provide protection for Care, Custody
and Control, to insure against liability for loss or injury to the
animals themselves.
Employers’ Liability insurance
Employers’
Liability Insurance is compulsory where you employ any individual as
part of your business. This insurance must cover liability for injury or
disease caused to employees arising out of their employment.
The
owners of smaller, often family-run, livery yards should err on the side
of caution, because whilst a yard worker might not employed on a formal
basis, an owner may still be held to be an employer if a reasonable
degree of control is exercised by the owner over their workers’
activities.
Employers and yard owners who engage workers on an
informal basis should also be aware of the operation of the Health and
Safety at Work Act 1974, which places a duty on every employer “to
ensure, so far as is reasonably practicable, the health, safety and
welfare of all of his employees”.
Take home message
In
an age of litigation, operating a livery yard is a risky business. It
is important to think practically and mitigate against as much of this
risk as you can through comprehensive insurance cover. Livery Yard
owners are also advised to put in place a comprehensive livery agreement
to regulate the rights and responsibilities of both parties, and to
leave as little room for dispute as possible.
To read about the
property law considerations relating to the purchase of property for
equine use, please refer to our ‘Property Focus’ article, published in
July’s edition of Equine.
About Claire Rawsthorn
Claire grew up in Derbyshire, graduating with a degree in French and
German from Sheffield University before taking her postgraduate law
studies at Trent Polytechnic (now Nottingham Trent University). She
joined Robinsons Solicitors, Derby as a trainee and stayed with them
after qualifying, before moving to Cumbria in 1989.
In Cumbria,
Claire has worked in the area of property law, specialising in
agricultural property transactions and small estate development since
2002. She is a member of the Agricultural Law Association. She joined
Cartmell Shepherd in January 2013 and amongst her portfolio of clients,
she advises on the sale, purchase and lease of equestrian properties and
grazing and livery agreements.
Contact Claire at Cartmell Shepherd's Victoria House office in Carlisle City Centre, Cumbria. Tel: 01228 516666.
www. cartmells.co.uk
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