Deer is the journal of the British Deer Society. In the 2013 summer edition there is an excellent article on page 33 called ‘Good, Better, Best’ by John Thornley, the author of ‘Fair Game’ and ‘Deer Law & Liabilities’. In his article, John Thornley defines best practice as a “method or technique that has consistently shown results superior to those achieved by other means and which then becomes used as a benchmark.” He goes on to trace the introduction and development of best practice in deer management in England and Wales, and in Scotland, and then tackles the link between best practice guides in deer management and the larger legal picture associated with the risks and liabilities of deer management.
In this article, I would like to swing that approach towards one of the activities of the gamekeeper, with the intention of helping gamekeepers reduce their exposure to civil and criminal liabilities arising out of their work. I will concentrate here on best practice relating to deer vehicle collisions. The examples discussed will demonstrate the links between best practice, risk assessment, and legal liabilities.
My subject covers an activity that gamekeepers are routinely requested to perform: dealing with wild deer that have been injured as a result of encounters with road traffic. It conveniently happens that there is a best practice guide dedicated to describing how to deal with injured deer at the roadside (www.deercollisions.co.uk).
First, it describes local deer dispatch schemes. I recommend all gamekeepers not currently in such a scheme to ascertain if there is one covering the roads in their patch. If there is, it will take the pressure off them to act as unofficial deer dispatchers. If a gamekeeper is likely to need to dispatch deer however, then he should plan ahead. He should at all times have ready a box of ‘dispatch kit’ containing such items as a high visibility jacket, roadside warning triangles and a powerful torch. This equipment will reduce the risk of injury to the gamekeeper and other road users and may be useful in doing the job.
On arrival at the scene a risk assessment is the first task. Depending on the circumstances of each individual case, aspects to be considered include the gamekeeper’s own safety, the safety of the public and the police, the whereabouts of the deer, it’s status – dead, alive, mobile, immobile – and the feasibility of its removal. These assessments may enable the gamekeeper to decide whether to safely dispatch the injured deer (if dispatch is required and possible) with a knife or firearm and, if the latter, the choice of firearm to achieve this.
Although the gamekeeper dispatcher may not naturally see it like this, the links between best practice, risk assessment and legal liabilities are already falling into place. If anyone disagrees with me and says in effect all he is doing is slotting an injured deer at the side of the road, I would invite him to consider a number of possible scenarios with tearful endings. The dispatcher who screeches to a halt on the wrong side of an unlit road and whose unseen truck is hit by a passing car has endangered the public he is meant to be assisting, an action which could result in injury or death. He would likely be found guilty of road traffic offences and suffer liability for negligence in civil law. If his vehicle insurance did not cover driving in these circumstances then there could be personal liability. In other words, the negligent dispatcher would have to meet the whole claim and costs out of his own pocket.
The gamekeeper who approaches an injured deer and causes it to jump up and run into a passing car that has not been alerted to the danger by signs or traffic management is likely to be liable to a claim for damages in civil law. It is arguably foreseeable that if an injured deer is approached it will get up and run, and in any direction.
The gamekeeper who uses a firearm, particularly a rifle, when no safe shot presents itself does so at his peril. If his shot injured or killed any person – onlooker, car occupants, local residents or police – then he would likely be prosecuted, sued in the civil courts and have his firearms and shotgun certificates revoked.
If the injured deer is still alive and is to be dispatched, then it has been suggested the planned method should be approved by the police if they are at the scene. I have heard of one case, possibly apocryphal, in which the attending police officers observed the dispatcher killing the injured deer with a knife and reported him for prosecution. The police officers who attend are likely to be from urban backgrounds, and what we regard as humane dispatch they may classify as out-and-out cruelty. There’s a minefield here for the deer dispatcher that is best avoided by not using knives where there are any witnesses present.
If an injured deer has legged it onto adjoining private land that is not covered by the gamekeeper as a course of his duties, he should not pursue it or try and trace it without the permission of the landowner. If apprehended while doing so, he could be reported for prosecution for armed trespass and for poaching. While there are defences in Section 1(3) of the Deer Act 1991 that might be deployed by the bona fide deer dispatcher, it is advisable he should not follow the injured deer on to private land without the landowner’s authority.
I recall a gamekeeper friend of mine returning home late one night after a fox lamping trip. He was stopped by the police at the scene of an accident involving a parcel of fallow deer and a car. Two fallow had been injured, and were on private land adjacent to the highway. The police asked my friend to shoot these two deer and he obliged with the aid of rifle, lamp and a lean off the bonnet of his car. Immediately after he had done this and the emergency was over, the police started to detain him with invasive questions as to who he was and so on. My friend, concerned by this and by what the landowner might say if he turned up, had to remind the officers he had acted in accordance with their request and had to be on his way. He breathed a sigh of relief as he drove off, but later told me he would be reluctant to assist in that way again.
The best practice guidelines of course go into other aspects of dealing with deer that have been in collisions, particularly the various methods of humane dispatch. It’s not my intent to rehearse these here, only to say that if a gamekeeper was to dispatch a deer by a method contrary to the relevant and applicable method in the best practice and there was a resultant accident, the best practice would be the benchmark mentioned by John Thornley, and defending criminal charges or civil claims would be consequentially more difficult. It would be naïve to suppose that things never go wrong when ‘best practice’ is applied but, if it has been applied, its application at least provides the gamekeeper dispatcher with the means of fending off the legal bees that will soon be buzzing round his head.
This point applies equally to all of the gamekeepers’ activities. Any gamekeepers who have not already done so could do worse than make a list of all these now, and then check their modus operandi against the applicable best practice benchmarks.