Wandering stock can be a large cost to farmers

If your stock are persistent escapers, it would also pay to check you have good public-liability insurance cover.

Farmers may pay an expensive price if their fencing isn't up to scratch, warns Leandra Fitzgibbon.

Farmers have a duty to ensure their properties are adequately fenced to contain their livestock, and they're liable for any damage caused by their wandering stock.

The Fencing Act 1978 defines an adequate fence to mean its nature, condition and state of repair is reasonably satisfactory for the purpose that it serves or is intended to serve.

The courts have held that the appropriate test of whether a fence is adequate is what sort of fence a reasonable occupier would build, given its purpose and the surrounding circumstances. If sheep, for example, are put in a paddock which is only fenced for cows this may be inadequate.

To avoid the potential costs and liability of livestock escaping to greener pastures, it's important that farmers ensure boundary fences and gates are in good repair.

If your stock are persistent escapers, it would also pay to check you have good public-liability insurance cover.

Three key pieces of legislation relate to a farmer's liability and responsibilities for wandering stock.

Impounding Act 1955:

This Act protects road users from wandering livestock, sets rules for the management of livestock pounds and the impounding of wandering and trespassing livestock, and it protects the interests of private property owners.

If your livestock wanders on to private land you can be liable for any damage caused. This includes any costs incurred by the local council as a result of impounding your livestock. This could include transportation to the pound, advertising, impounding fees, animal-control officers' time and mileage, grazing costs and veterinarian bills.

As well, if your livestock wanders on to private land, the landowner can claim fees for trespass and sustenance. The trespass rates differ according to the type of livestock and the type of feed the livestock trespass on to. For example, a pig on crop will cost you $10 per day, and one sheep on grass will see fines of 50c per day.

If the owner of the land on to which your livestock has wandered isn't happy with the official trespass rates, he or she can claim for the actual loss suffered instead. The actual loss, however, won't be payable if you can prove your land was adequately fenced.

Animals Law Reform Act 1989: This covers the law relating to liability for damage caused by animals. In essence, it says those in charge of livestock have a duty to others to take reasonable care to see that damage is not caused by stock straying on to roads.

Reasonable care is to be assessed by what is the common practice in your area. This includes fencing and other measures you should take to prevent your animals from straying, and also any warning measures you might have taken in a particular case.

The Act allows for compensation to be claimed for any damage caused by wandering livestock.

Crimes Act 1961: If your stock wanders on to public roads, you can also be criminally liable if you haven't taken adequate steps to secure them.

Potential criminal charges include criminal nuisance (maximum penalty of one year's jail), breach of duty of a person in charge of dangerous things (maximum penalty of life in jail) or endangering safety (maximum penalty of three months' jail or a $2000 fine).

Reproduced with permission from the NZ Law member firm newsletter Fineprint.