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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wormald v H J Walker & Co & Ors [2003] ScotCS 346 (30 December 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/346.html
Cite as: 2004 SCLR 733, [2003] ScotCS 346
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Wormald v H J Walker & Co & Ors [2003] ScotCS 346 (30 December 2003)
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OUTER HOUSE, COURT OF SESSION |
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A1659/99
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OPINION OF LORD BRACADALE in the cause DEREK WORMALD Pursuer; Against H J WALKER & CO and OTHERS Defenders:
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Pursuer: Thomson; Bishops
Defenders: Jones; Brechin Tindal Oatts
30 December 2003
Introduction
[1] This case came before me on procedure roll on the defenders' first plea-in-law. The defenders moved me to sustain their first plea-in-law and dismiss the action. The pursuer moved for a proof before answer. The action arises out of a collision between a motor car being driven by the pursuer and a cow belonging to the defenders. At the material time the defenders were farmers at Port William, Newton Stewart. They had three farms: Barwinnock Farm, Auchness Farm and Low Drumrae Farm. The pursuer lived at Low Drumrae Cottage, which was next to Low Drumrae Farm. It is common ground that the collision occurred in darkness in the evening of 6 October 1996. The pursuer was driving his Ford Fiesta 1.8 diesel van along the B7021 near his cottage. At this point the road is single track. The pursuer avers that he had just driven past a telephone box where there is a dip in the road. A black cow belonging to the defenders was standing in the middle of the road. The pursuer avers that the cow had escaped from a neighbouring field of the defenders through a hole in the fence. He is unable to say through which hole or from which field the cow escaped. He avers that the fences on the farm at that time were in such a state of disrepair as to allow a cow a choice of escape routes from the fields. The pursuer avers that he was unable to avoid striking the cow, as a result of which the cow was killed and the vehicle was forced into a field. The pursuer avers that as a result of the accident, he suffered loss, injury and damage.[2] The pursuer bases his case in negligence. He avers that it was the defenders' duty to take reasonable care to see that the livestock belonging to them should be kept in fields which were securely fenced and to prevent their livestock, such as the cow in question, from straying onto the public road. He avers that it was reasonably foreseeable to the defenders that if livestock, such as the cow in question, were allowed to stray onto the public road an accident, such as befell the pursuer, would occur. He avers that the defenders owed a duty of care to users of the public road next to their fields to take reasonable care to maintain gates and fences in a stock-proof condition.
[3] When the case first came before me the defenders had lodged a note of arguments which related to specification in Articles 2 and 4 of condescendence. However, in his submissions Mr Jones, Solicitor Advocate, developed a much more fundamental attack on the relevancy of the pursuer's case. At the end of the defenders' submissions Mr Thomson, who appeared for the pursuer, moved me to adjourn the hearing in order to allow him to address the attack on the pursuer's case which had not been foreshadowed in the note of arguments. I granted that motion and when the case came before me again, I heard submissions from Mr Thomson and Mr Jones in reply.
Defenders' submissions
[4] Mr Jones submitted that there was no general duty in Scots law on a farmer to fence his land. However, he recognised that a farmer will be liable if he negligently allows a beast to do harm on the roadway. He referred to a passage in Walker on Delict, 2nd edition at pages 524-525. In addition, he referred to a number of cases including: Fraser v Pate 1923 SC 748, also reported in 1923 SLT 457; Searle v Wallbank 1947 AC 341; and Gardiner v Miller 1967 SLT 29.[5] Mr Jones' first submission was that the pursuer had failed to aver circumstances giving rise to a duty of care to users of the highway. The pursuer had failed to set out on record specific averments entitling him to prove that there was a duty of care, namely to fence and maintain fences. He submitted that in order to establish a duty to fence and to maintain fences, it is for the pursuer to aver circumstances giving rise to such a duty. He submitted that such a duty might arise if, for example, the road was a busy road such as a motorway, or if cattle had strayed before. Such situations might give rise to an obligation to fence. Mr Jones submitted that in the present case the pursuer did not aver any circumstances showing that there was a foreseeable risk of straying cattle causing injury to people using the highway.
[6] Secondly, Mr Jones went on to submit that if, contrary to his first submission, the pursuer's averments were sufficient to establish such a duty then there were insufficient averments in law to establish that the defender's had breached such a duty. Mr Jones submitted that there was insufficient specification of either the field from which, or the hole in the fence or wall through which, the cow was said to have escaped. In order relevantly to aver a case, the pursuer would require to show not only that there were holes in the fence but that the defender knew or ought to have known of such holes. He was also required to aver that the defenders had failed to do anything about it. He submitted that the Minute of Amendment made the matter worse because the pursuer was now averring that he was unable to say which hole or field the cow escaped from. In these circumstances he posed the question as to how the pursuer intended to show that the defender knew or ought to have known of the hole.
[7] Thirdly, Mr Jones submitted there was lack of fair notice as to the cause of the accident. The pursuer failed to set out any relevant averments as to how he came to hit the cow. The pursuer averred that he was driving along a single track B road, it was dark and there was a dip in the road. The pursuer came across a stationary obstruction in the road, the cow. He failed to make any averments as to how the presence of the cow on the road caused the accident. The pursuer made reference to a dip in the road but did not offer to prove that the dip was relevant to the accident. The pursuer averred that "he was unable to avoid the cow" but he did not offer to prove why he was unable to avoid the cow.
Pursuer's submissions
[8] Mr Thomson on behalf of the pursuer moved me to allow a proof before answer. He referred to the dictum of Lord Keith in Miller v The South of Scotland Electricity Board 1958 SC (HL) 20 at page 33:
"In claims of damages for alleged negligence it can only be in rare and exceptional cases that an action can be disposed of on relevancy."
He submitted that in this case there was enough material to allow the case to go to proof before answer. The ambit of the duty can often only be stated after the evidence has been led.
[9] Mr Thomson submitted that in the present case there was a duty incumbent on the defenders to take reasonable care to prevent cows straying on to the road after dark. It is reasonably foreseeable that if they fail to do so then injury might happen. The defenders comply with that duty by taking reasonable care that livestock are kept in securely fenced fields.[10] Mr Thomson recognised that in Fraser v Pate Lord Ashmore held that the pleadings did not disclose any actionable wrong and his decision was upheld by the Second Division. In particular, it was held that no relevant duty of care had been averred. However, Mr Thomson drew attention to the observations in the Opinions of Lords Ormidale and Anderson that the situation might be different at night in darkness. He referred to the passage in the Opinion of Lord Ormidale at page 754:
"The principle seems to be that, in the case of a sheep, which is an animal of a mild and peaceable nature, the owner is not bound to anticipate, if it should stray onto the public highway, at any rate in daylight, that it will by obstruction or in any other way, bring about the downfall of a member of the public to his injury and loss, the reason being that that is not a natural consequence of a sheep being upon the public road."
He also referred to a passage in the Opinion of Lord Anderson at page 754:
"It seems to me that the result might have been different if this accident had occurred in the darkness by reason of the presence of a sheep on the highway".
Mr Thomson submitted that in daylight the road user can observe the situation and take suitable precautions. Should an accident occur, the road user has had an opportunity to do all that he can. In the dark, the road user is unable to observe the situation as he could in daylight.
[11] Mr Thomson did not take issue with what was said in Searle v Wallbank but he submitted that the case required to be viewed in its proper context and referred to the analysis of Lord Thomson in Gardiner v Miller. Mr Thomson also relied on Lord Thomson's analysis of Fraser v Pate. Mr Thomson pointed out that in Gardiner Lord Thomson allowed a proof before answer.[12] On the question of the adequacy of specification, Mr Thomson sought to distinguish Fraser v Pate on its facts from the present case. In Fraser v Pate the pursuer averred that he was riding his motor cycle in daylight. He saw sheep ahead grazing at the roadside and slowed down. When he was opposite the sheep, two of them suddenly rushed across the road and collided with his motor cycle, causing him injury. The gate and the fences of the field skirting the road were insufficient to contain the sheep. In the present case, the pursuer offers to prove that he was driving along a single track road. It was dark. The locus was near to his cottage. He had just driven past a telephone box where there was a dip in the road. The cow was black. The cow escaped from a neighbouring field. The fences were in such a state of disrepair so as to allow a choice of escape routes. Mr Thomson submitted that the specification of the pursuer's pleadings was sufficient to enable the defenders to locate the locus with precision. He said that the issue for proof is a straightforward one, namely, whether the neighbouring fields at this particular point in the road were in the state of disrepair that the pursuer suggests. Mr Thomson submitted that at proof the pursuer's evidence would be restricted to a section of the road which is close to the pursuer's cottage and just past a phone box where there is a dip in the road. He submitted that in Fraser v Pate the locus and the fences were described with less clarity than in the present case.
Defender's reply
[13] In reply, Mr Jones was critical of Mr Thomson's submission that the proof would be restricted to the section of road which was close to the pursuer's cottage and just past the phone box where there was a dip in the road. That is not what the pursuer said in his averments. The averments as to the locus of the accident do not narrow the point at which there was a hole in the fence to that area. In the Minute of Amendment the pursuer was making it clear that he was unable to say where the cow had escaped. Further, there were general averments about the state of fences on the farm. The pursuer was intending to lead evidence about fences on the farm because he was unable to say through which hole or from which field the cow came. Mr Thomson was simply trying to avoid the difficulty that the pursuer in Fraser v Pate experienced. If the pursuer was now saying that the cow had wandered from a field adjacent to the accident then he should amend to say so.[14] Turning to the question of darkness, Mr Jones pointed out that in Searle it was war time, it was dark and blackout conditions and yet the plaintiff still failed. Mr Jones submitted that the suggestion that a duty arose in darkness did not hold water. Mr Thomson appeared to be suggesting that while he accepted there was no general duty to fence one arose in darkness. It was being suggested that where there was a dark cow on a dark road in darkness, there was a duty to fence. He submitted that the absurdity of that proposition could be demonstrated by posing the question as to what would happen if an accident occurred with a white cow in a blizzard on a snowy road on a snowy day.
[15] Mr Jones accepted that while there was no absolute duty to fence, there may be a duty if there are circumstances which give rise to such a duty. He sought to distinguish Gardiner v Miller from the present case. In Gardiner the road, which was the main Glasgow to Carlisle road, was a dual carriageway whereas in the present case the road was a single track, 'B' classified road. This was a major distinguishing factor. In addition, in Gardiner there was specification as to where the horse came from and the means by which the horse escaped. That was in sharp contrast to the pursuer's averments in the present case.
Discussion and decision
[16] In seeking to ascertain the law on this matter I derive most assistance from the opinion of Lord Thomson in Gardiner v Miller. In this case Lord Thomson reviewed the Scottish and English authorities including Fraser v Pate. I do not consider that it is necessary or appropriate for me to attempt to repeat the exercise. I was not referred to any cases subsequent to Gardiner v Miller. The law in England is now subject to the provisions of the Animals Act 1971. The law of Scotland in this area remains common law negligence. In Gardiner Lord Thomson made the following observations on Fraser v Pate:
"The case may be an authority for the proposition that the owner of lands adjacent to a public highway owes in general no duty to the user of the highway to fence his lands so as to prevent animals straying therefrom onto the highway in daylight. It is not, in my opinion, an authority for the proposition that in no circumstances can the owner of such lands be liable to the user of the highway for injury done to him by an animal straying from the field onto the highway unless proof that the owner knew of some vicious or mischievous propensity in the animal."
I respectfully adopt Lord Thomson's conclusion at page 33:
"In my opinion according to the law of Scotland there is no absolute duty to fence or keep gates shut so as to prevent domestic animals straying on to the public highway, but there may be, and in certain circumstances there is, a duty to take reasonable care to prevent such animals from straying on to the highway where there is a foreseeable risk of such straying causing injury to people using the highway. I think Sheriff Garrett in Wark v Steel at page 22 states the law correctly thus: 'In my opinion then the owner or occupier of a field adjoining a highway is bound to take reasonable care that his horses or other animals do not cause damage. It would not be reasonable to expect him to put up fences in areas where lands are not normally fenced nor in a fenced countryside could he be responsible if some unauthorised person opened his gate or a horse escaped through a gap the existence of which he could not reasonably be expected to have known. He could not be liable because he would not be negligent, but if he opens the gate himself or otherwise negligently allows his horse to escape onto the road then he may be in breach of a duty if he had put it in a position in which having regard to all the circumstances it is likely to cause damage to persons lawfully using the highway.' I do not think it is possible to define the exact circumstances in which such a duty arises, and I doubt if it would ever be desirable to attempt to do so before the facts of any particular case had been determined."
In Gardiner a motorist travelling on the main Glasgow to Carlisle road, which was a modern dual carriageway, struck a horse which had escaped on to the road from an adjoining field. The pursuer averred that children frequently played with the horse in the field, entering the field either by climbing over the gate or by undoing the rope and opening the gate. He averred that shortly before the accident, children had been playing in the field and had opened the gate such that the horse escaped.
[17] Lord Thomson was critical of the pursuer's averments in Gardiner. He pointed out that there was no averment that the gate had been left open before and no averment that this horse or any other animal had ever strayed from the field before. However, he went on to say:
"But I fully appreciate that what risks of injury are reasonably foreseeable and what is reasonably practicable to prevent such injury are very much and inevitably questions of fact that can ordinarily be answered only after proof of all the relevant circumstances of any case, and I am mindful of the now well known dictum of Lord Keith in Miller v The South of Scotland Electricity Board 1958 SC (HL) 20 at page 33: 'In claims of damages for alleged negligence it can only be in rare and exceptional cases that an action can be disposed of in relevancy'."
[19] In relation to the questions as to the adequacy of the specification of the averments in support of a breach of duty by the defenders and the precise cause of the accident, the pursuer's averments may be described as minimal. There are no averments as to the identity of the field from which the cow is said to have escaped, nor as to which hole in the fence the cow is said to have used to escape. There are no averments that cows had strayed there before. There are no averments as to the state of knowledge of the defenders with respect to holes in the fences. However, there is introduced by the Minute of Amendment a general averment that the fences on the farm were in such a state of disrepair so as to allow a cow a choice of escape routes from the fields. In addition, it is averred that it is not possible for the pursuer to identify the particular field or the escape route. The averments as to the precise circumstances of the accident are very limited. On the other hand the accident does not appear to have occurred in particularly complicated circumstances.
[20] While I consider the pursuer's pleadings as to the existence of a duty of care to be of doubtful relevance, and their specification to be minimal, I have come to the view, particularly being mindful of the dictum of Lord Keith in Miller v South of Scotland Electricity Board, that the question of relevancy can only be answered after proof and that there is sufficient specification to give the defenders fair notice of the case which they require to meet. In these circumstances I shall repel the defenders' first plea in law and I shall allow a proof before answer.