Marion Clode

REGULATION 28 REPORT TO PREVENT FUTURE DEATHS

THIS REPORT IS BEING SENT TO: Department of Environment, Food and Rural
Affairs, Kings Pool, Unit 4 Foss House, 1-2 Peasholme Green, York YO1 7PX

1. CORONER

| am Karen Lorraine Dilks for Senior Coroner for Newcastle and Acting Senior Coroner
North Tyneside Coroners

2. CORONER’S LEGAL POWERS

| make this report under paragraph 7, Schedule 5, of the Coroners and Justice Act 2009 and
regulations 28 and 29 of the Coroners (Investigations) Regulations 2013.

http://www. legislation.gov.uk/ukpga/2009/25/schedule/5/paragraph/7
http://www.legislation.gov.uk/uksi/2013/1629/part/7/made

3. INVESTIGATION and INQUEST

On 7 April 2016 | commenced an investigation into the death of Marian Elizabeth CLODE.
The investigation concluded at the end of the inquest on 22 October 2020 . The conclusion
of the inquest was

Accident

Medical Cause of Death

ta CARDIAC ARREST WITH ANOXIC-ISCHAEMIC BRAIN INJURY
1b NECK FRACTURES AND SEVERE SPINAL CORD INJURY

1c FALL (ATTACKED BY A COW)

ll

4, CIRCUMSTANCES OF THE DEATH

On the 2 April 2016 Marion Clode, her husband, daughter and son in law and 2
grandchildren travelled to Pine Cottage, Swinhoe Farm, Belford, Northumberland for a 1
week holiday.

On the 3 April Mrs Clode and her family went walking on a recognised walking route from the
farm. The family were unaware of the farmer sa plan to move cows and their
calves from their winter shed into a field adjacent to a public bridleway. The cattle were
assembled in a non secure holding area in preparation for movement. Some cattle broke
loose from the holding area onto the public bridleway. Simultaneously Marion Clode and her
family were returning to Swinhoe Farm via that same public bridleway. They had no warning
either verbal or by signage and due to the topography of the area were unaware of the cattle
coming towards them.

Marion Clode, leading the family group was attacked by a cow 3 times sustaining injuries
that lead to her death on the 5 April 2016.

5. CORONER’S CONCERNS
During the course of the inquest the evidence revealed matters giving rise to concern. In my

opinion there is a risk that future deaths will occur unless action is taken. In the
circumstances it is my statutory duty to report to you.

The MATTERS OF CONCERN are as follows. —

(1) There is a continuing risk to the public of serious injury or death in exercising their right to
walk on public bridleways on or adjacent to working farms.

(2) A robust system of Regulation of farming practice in the context of Public Rights of way
and guidance to the public is necessary to mitigate that risk.

6. ACTION SHOULD BE TAKEN

In my opinion action should be taken to prevent future deaths and | believe you Department
of Environment, Food and Rural Affairs have the power to take such action.

7. YOUR RESPONSE

You are under a duty to respond to this report within 56 days of the 29 December 2020,
namely by 23 February 2021. |, the coroner, may extend the period.

Your response must contain details of action taken or proposed to be taken, setting out the
timetable for action. Otherwise you must explain why no action is proposed.

8. COPIES and PUBLICATION

| have sent a copy of my report to the Chief Coroner and to the following Interested
Persons:

| am also under a duty to send the Chief Coroner a copy of your response.

The Chief Coroner may publish either or both in a complete or redacted or summary form.
He may send a copy of this report to any person who he believes may find it useful or of
interest. You may make representations to me, the coroner, at the time of your response,
about the release or the publication of your response by the Chief Coroner.

29 December 2020

for HM Senior Coroner for Newcastle and North Tyneside

2s

Department Seacole Building
for Environment 2 Marsham Street
: London
Food & Rural Affairs SW1P 4DF www.gov.uk/defra
Karen Dilks rs
Coroner’s Court ur ret:
Civic Centre

Barras Bridge 01 July 2021

Newcastle upon Tyne
NE1 8QH

Dear Ms Dilks,

| am writing in response to the ‘Regulation 28' report dated on 29 December 2020 and sent
to our offices on 7 May 2021.

On behalf of the Department for Environment, Food and Rural Affairs (Defra), | would like
to take this opportunity to acknowledge the concerns you have raised regarding the tragic
incident which resulted in the death of Marian Clode on 2 April 2016.

Defra are undertaking a package of reforms to the rights of way system which will lead to
improvements in various areas, including an improved capacity for landowners to move
certain rights of way on their land. Under provisions known as the ‘Right to Apply’,
landowners will be able to make formal applications to local authorities to extinguish or
divert rights of way from their land with a right of appeal to the Secretary of State if the
authority refuses or fails to respond. These applications will be considered on a case by
case basis and the outcomes cannot be guaranteed. Guidance will however encourage
local authorities to remove public rights of way wherever possible from premises where
privacy, safety and security are of a significant concern, including family gardens and
working farmyards.

We have discussed the details of this specific case with the Health and Safety Executive
(HSE), Britain’s national regulator for workplace health and safety. HSE is the enforcing
authority for incidents involving cattle on farms. HSE are already aware of this case and
have provided the below information relevant to this situation. An overview of HSE
procedures is published online:

https://www.hse.gov.uk/foi/internalops/og/ogprocedures/index.htm

HSE investigates incidents following a specific procedure for this type of incident.
htips:/Avww.hse.dov.uk/foi/internalops/og/og-00058.htm and determines if farms have
established control methods giving consideration to their Agriculture Information Sheet
(AIS) 17 (https://www.hse.gov.uk/pubns/ais17ew.pdf) and other documented standards.

[52 disability |
GS confident |

LEADER

The legal duty on the farmer under the Health and Safety at Work etc Act 1974 is to
manage their herd so the animals within it present a low level of risk to members of the
public using public rights of way. HSE’s published guidance sets out the hierarchy of
control measures they would expect the farmer to have considered and where possible

_ implemented, before considering additional measures such as offering a voluntary
alternative route.

Examples of control measures include eliminating the risk by grazing cattle in fields without
public access or segregating people from the cattle by use of fixed or temporary fencing;
keeping cows with young calves in other fields; arranging field infrastructure so that
animals and people are kept apart (e.g. feed and water away from the path or stiles);
moving animals from fields with paths at busy times (e.g. bank holiday weekends).

HSE analyse and review cattle incidents each year looking for potential trends which are
published each year: httos://www.hse.gov.uk/aboutus/meetings/iacs/aiac/index.htm.

HSE has engaged with Natural England to look at cattle data, to enable them to analyse if
there are patterns in land use that are prevalent with regard to incidents. Natural England
administers grant schemes so that farmers could be paid to consider alternative land
management methods that reduce the risks to walkers.

Yours sincerely,

Deputy Director for Access, Landscapes, Peatiand and Soil - ALPS
Natural Environment, Trees & Landscape Directorate - NETL
Department for Environment, Food and Rural Affairs

Seacole Building, 2 Marsham St, Westminster, London SW1P 4DF

| 32 disability |
| BY confident

Swinhoe

- elford
J. M. Nixon & Son ie

NE70 7LI

23/6/2021

Karen L Dilks LLB
Coroners Court

Civic Centre

Barras Bridge
Newcastle upon Tyne
NEI 8QH

Dear Karen L Dilks LLB

Thank you for your letter dated 7 May 2021 attaching the Regulation 28 Report to Prevent Future
Deaths dated 29 December 2020.

| propose to address the coroner's Matters of Concern before going on to set out the current plan
for the movement of cattle.

Matters of Concern
1. Cattle movement being commonly undertaken in accordance with individual

farmers "custom and practice" and in the absence of:

(a) Formal plans for cattle movement (written or verbal);

(b) Contingency plans / strategies in the event of cattle breakout;

(c) Specific planning in respect of the heightened risk associated with the
presence of young calves and in the context of their first release from
winter shed.

in relation to the suggestions that there was an absence of a formal plan for cattle movement,
contingency plan or specific planning to take into account the presence of young calves, |
would wish to make the following observations.

Having heard all of the evidence, the HSE expert witness, HE contirmea in his evidence
to the court that, in his opinion, the plan in place for the movement of the cattle was a
reasonable one. In particular, he confirmed it was his view that the drive along the track to
check for members of the public was carried out within a reasonable timeframe.

In relation to my contingency plan, IEEagreed that | had a contingency plan in place and
that the plan to follow the herd, enter the field on the left hand side by the metal gate and
travel up the field in order to overtake the cattle, was a reasonable one.

An experienced cattle farmer, [EEE also answered questions at the Inquest about
the plan. He confirmed his view that any plan to move cattle has to be flexible. He also stated
that, as one cannot predict what might go wrong, any contingency plan involves weighing up
the risks at the time. In answer to a specific question about a breakaway group that
disappear from view, he responded by saying that he would try to get around and past them,
but that if that wasn’t possible, he would go slowly and ensure that he didn’t push them further
away.

| maintain that a plan for the movement of the cattle was in place at the time of the incident
and that it was one that had been used for many years, without incident. That plan very much
took into account the fact that young calves would be in the group of cattle that were being
moved. Further, there was a reasonable contingency plan in place.

Ce

2. Cattle movement undertaken without appropriate measures in place to mitigate

the risks of cattle breakout

(a) Cattle held prior to movement in a holding area pen which was insecure.
Cattle contained only by quadbike and trailer (driven by farmer) at the front
of the herd;

(b) No warning to the public of impending cattle movement and the risks
thereof either by temporary warning signage or farm staff placed at
strategic points on the planned route to give verbal warning.

When giving evidence at the inquest EEEstated that in his view the method of using the
quadbike and trailer, together with my being at the side of those with the flexible stick, was a
reasonable practice.

It is accepted that at the time of the incident there was no temporary signage in place, as it
was believed that the check of the route prior to the movement commencing was sufficient.
No guidance issued by the H.S.E. suggests that signs should be used when moving cattle.

3. Secure gate at the entrance to the bridleway unable to be utilised due to
direction of opening which with some limited alteration may have gone some
way to mitigate the risk in this case.

The gate opens "inwards" (ie towards the sheds rather than away from them down the track).

During a visit from representatives of the H.S.E. on 17" November 2020, it was discovered

that, following some significant alterations, the gate can be opened outwards (away from the

sheds). However, it has to be lifted, with significant effort, over the slope of the ground
because of both the gradient of the track and its camber. That is, the gradient and camber
are such that the gate hits the ground and cannot be pushed any further without it being lifted.

This would clearly cause problems, and potentially increase the risk of cattle breaking out, if it

were done at a time when cattle were about to be moved along the bridleway. This is the

reason the gate hadn't been altered previously.

As explained in evidence at the Inquest, the use of the gate no longer forms part of the cattle

movement plan (see below).

Details of action taken to address the coroner's Matters of Concern

1. Whilst | maintain that there was a plan in place at the time of the incident | have
revisited the plan and changes were made following the incident. The plan is not
required to be documented but all parties involved understand the plan and their role
in it.

2. There are two cattle sheds. Each shed has its own secure holding area and the cattle
are moved out of the shed into the secure holding area immediately outside it. That is
the same as before.

3. However, as stated at the Inquest hearing, cattle are not now moved into a second
holding area requiring the use of any barrier at the entrance to the bridleway. That
second holding area and the gate are no longer part of the movement plan. Cattle are
moved one shed at a time so there is no need for this second holding area.

4. The gate to the bridleway is left open and | ride my quadbike along the track to check
the gates along it and to warn any walkers on the track. As | explained during my
evidence at the inquest, | then return to the brow of the first hill. From this point | can

see if any members of the public come along the track in the period between my
check and the cattle being moved. If | see any members of the public, | will ride to
them and warn them of the imminent cattle movement or wait until they are clear. If
there are none, | will call the staff members in the holding pen and tell them to
commence moving the cattle (as long as it is clear where they are). There are always
two members of staff moving the cattle from the holding pen to the bridleway and
then, depending on the numbers of cattle, either one or two will follow the cattle up
the track to the field. Once the move has started | stay well ahead of the cattle
(around 200m — 300m) so that if anyone comes onto the track | have plenty of time to
ask them to stand in a field until the cattle have passed.

We also now have "Warning — Cattle being Moved” signs which are placed around
the farm yard to warn any members of the public coming up behind the sheds that
cattle are being moved ahead of them.

Yours sincerely