Scottish Court of Session Decisions

Aberdyke v. Gall (t/a Donside Turkeys) [2003] ScotCS CSIH_39 (20 February 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Marnoch Lord Nimmo Smith	XA133/01 OPINION OF THE COURT delivered by LORD MARNOCH in APPEAL FOR THE DEFENDER From the Sheriffdom of Grampian, Highland and Islands at Aberdeen in the cause ABERDYKE LIMITED Pursuers and Respondents; against RONALD GALL, trading under the name of DONSIDE TURKEYS Defender and Appellant: _______

 

 

Act: I.F. MacLean; Simpson & Marwick, W.S. (Pursuers and Respondents)

Alt: D.E.L. Johnston; Brodies (Defender and Appellant)

20 February 2003

1. In this action the pursuers, suppliers of feed supplements to the livestock industry, sue the defender, a farmer and turkey rearer, for the cost of a variety of feed supplements which they supplied to him in 1989. The defender has lodged a counter-claim in which he seeks more than £30,000 from the pursuers on the basis that one of the items which he ordered was replaced without his knowledge by another item, that substitution resulting in the death of a substantial proportion of his turkey flock, and causing him to suffer certain consequential losses.
2. The substitution in question was held by the sheriff to be a mixture of hipro soya meal and sunflower oil in place of full fat soya in 5% by weight of the turkey food made up by the defender. The sheriff found that, when the turkeys were supplied with the food which contained this mixture, their intake dropped considerably. A day or two later a number of birds in each shed became unwell and a number suffered from diarrhoea. Two or three days later birds were beginning to die. It was not in despite that the immediate cause of the turkeys' deaths was a bacterium known as pasteurella haemolytica, and that the presence of that bacterium, which occurs in the upper respiratory tract of a substantial percentage of turkeys, was harmless unless something occurred to cause it to "fulminate" and enter the bloodstream, thereby killing the host by a form of septicaemia. The parties were in dispute as to (i) whether the substitution could have caused dietary stress; and (ii) whether such stress, in the absence of damage to the digestive tract, allowed the bacterium to fulminate and enter the bloodstream. The defender challenged the finding of the sheriff that "no material difference between soya oil and sunflower oil per se has been established in the present proof" (finding 8), and his finding that

"the identity of the agent which allowed the pasteurella haemolytica to fulminate in the present case has not been established. In particular it has not been established that the substitution of the hipro/oil mixture for the full fat soya played any part in the death of the turkeys". (Finding 14).

The dispute between the parties was also the subject of an appeal to the sheriff principal from which the present appeal has been taken to this court. However, as is so often the case, the arguments deployed before us took a materially different form from those considered by the sheriff principal and, since the ultimate question is solely one of fact, little is to be gained by traversing the opinion of the sheriff principal.

3. Mr. Johnston, advocate, for the defender and appellant, recognised from the outset that an appellate court does not lightly interfere with findings in fact made at first instance. However, under reference to Benmax v. Austin Motor Co. Limited [1955] A.C. 370, he submitted that the present appeal was essentially concerned with expert evidence and the question of what inferences could properly be drawn from primary findings in fact rather than with the primary findings themselves. He also relied on Dingley v. Chief Constable, Strathclyde Police 1998 S.C. 548 (affirmed 2000 S.C. (H.L.) 77) and submitted that in the present case the sheriff had given no adequate reasons for preferring the evidence of the pursuers' expert witnesses to those of the defender. That being so, the evidence was at large for this court.
4. So far as the immediate effect of the change in diet is concerned, the sheriff notes that the defender advanced two alternative explanations of its significance. Dr. Smith, a chemist, advanced the opinion that it would have led to the swamping of the digestive system, whereas Mr. Law, who was a veterinarian but not a nutritionist, favoured the view that it would have led to the turkeys being put off their food, hence suffering food deprivation. We are in no doubt that the sheriff was entitled to conclude that the defender failed to prove that the change in diet was sufficient to cause a dietary stress. The sheriff noted that one of the pursuers' expert witnesses, Dr. Acamovic, a nutritionist, said that the change in diet would not have the effects contended for by Mr. Law. The sheriff found Dr. Acamovic to be a "perfectly straightforward" witness on whose evidence he could rely. Although his expertise was as a nutritionist, Dr. Acamovic deponed that, in the course of researching a different matter, he had made a change in the diet of turkeys which was more extensive than that complained of in the present case without the birds suffering any ill effect. He did not consider that the increase in the level of added oil or any change in presentation was significant. Mr. Pennycott, another of the pursuers' expert witnesses, said that a primary lower respiratory tract infection might put the birds off their food and cause loose faeces. In our opinion this evidence was more compelling than the rather vague and hesitant evidence given by Dr. Smith for the defender, but we do not find it necessary to examine the evidence on this branch of the case in any detail since, in agreement with the sheriff, we think the case is best decided on the issue of causation.
5. As we understood Mr. Johnston's submissions in regard to causation, he did not go the length of maintaining that, had proper reasons been given, the sheriff would not have been entitled to accept the evidence of the pursuers' experts and, in particular, Mr. Pennycott, as providing a coherent set of reasons for repudiating the causal connection between the change in feed and the deaths of the turkeys. The first question, therefore, is whether Mr. Johnston is right in saying that the sheriff gave no adequate reasons for preferring that coherent body of evidence. And we, for our part, answer that question in the negative.
6. In order to explain why we reach that conclusion it is necessary, first, to summarise the essential differences in the evidence given by the defender's principal expert witness, Mr. Law, and the pursuers' principal expert witness, Mr. Pennycott. The general approach of the defender's expert witnesses was that by one means or another the change in feed stuff had caused stress to the immune system, thereby allowing "fulmination" to occur, whereas the approach of Mr. Pennycott was that some sort of "damage" had to be caused to one or more of the respiratory tract, digestive tract and reproductive tract of the turkeys in order to allow entry of the bacteria to the bloodstream. A sizeable part of the proof was taken up with the question of whether, shortly before the deaths, a portion of the flock was suffering from enteritis. In the result the sheriff made a finding in fact that "a number of birds suffered from diarrhoea." But in his accompanying Note he elaborates that by saying, "It cannot be affirmed that the birds were suffering from anything more than, at worst, mild enteritis." This reflected the evidence of the veterinary surgeon, Mr. Inglis, who carried out a post mortem examination of four of the birds (which were said by the defender to be typical) and who stated that, had severe enteritis been present, he would have expected to have noted that in the post mortem reports. At all events, Mr. Law regarded the presence of any enteritis, mild or otherwise, as in line with his theory, although it was not always clear in his evidence whether he was regarding the presence of such enteritis as simply manifesting the presence of stress or as adding to the stress which he claimed had affected the immune system of the birds in question. Mr. Pennycott regarded the presence of anything other than severe enteritis as irrelevant since only severe enteritis could cause the sort of damage to the digestive tract as would permit entry of the bacteria into the bloodstream. Mr. Pennycott's thesis was that the primary cause of death was an unidentified organism in the upper respiratory tract which had nothing to do with a change in the turkeys' diet but which so damaged the respiratory tract as to allow the ingress into the bloodstream of the pasteurella haemolytica bacteria. Mr. Johnston criticised the evidence of Mr. Pennycott in respect that he postulated an infection which was unidentified. However, Mr. Pennycott pointed out in his evidence that tests for identifying such an infection had not been carried out at the time. The sheriff was, in our view, entitled to accept the explanation advanced by Mr. Pennycott and, along with it, his evidence as to a number of factors in the rearing of turkeys by the defender which might account for the spreading of infection among them. In assessing the evidence on causation the sheriff addressed the issue, as do we, on the basis that the birds' food intake did drop considerably after the change in diet and also on the basis that some of the birds suffered from mild enteritis. Even so, the sheriff says that on this matter he found Mr. Pennycott "the more cogent and persuasive witness, and preferred his evidence to that given by Mr. Law." Mr. Johnston's leading submission was that the sheriff gave no reasons for that statement.
7. In our opinion, however, the only reasonable inference is that what the sheriff found "cogent" about Mr. Pennycott's evidence was the substance of his evidence as summarised on the previous page of the sheriff's Note. In that summary the sheriff notes the fundamental point made by Mr. Pennycott, namely that the bacterium in question could only enter the bloodstream if "damage" was somehow caused to the digestive, respiratory or reproductive system. According to Mr. Pennycott, mere stress did not cause such damage. He rejected the suggestion that an upset to the digestive system made it possible for the bacterium to fulminate. In addition, the sheriff notes that in the course of his evidence Mr. Pennycott had "pointed to a specific feature in relation to one of the post mortem reports which he said demonstrated clearly that the respiratory tract damage had preceded the fulmination". In our opinion this is a further important aspect of Mr. Pennycott's evidence which, on this point, is to be found at pps. 75 et. seq. of the Notes of Evidence. In this passage Mr. Pennycott deduced from a particular form of liver damage found in one of the birds that the initial problem must have been that the lungs were not working properly. He then goes on to conclude (at p. 77) that the two post mortem reports (which together covered the four birds) presented a "consistent picture of a respiratory tract infection associated with the bacterium pasteurella haemolytica." So far as we can see he was not challenged - and certainly not successfully challenged - on either his deduction or conclusion on this important matter. Moreover, we do not think that the sheriff is entirely correct in saying that this part of Mr. Pennycott's thesis was not put to Mr. Law in cross-examination. At page 235 of the Notes of Evidence it seems to us that the general point is put to Mr. Law without, however, any very clear response from him. As counsel for the respondents pointed out, there was no post-mortem evidence of disruption to the digestive tract.
8. In the result, we are respectfully of opinion that in this case the sheriff can be seen to have given adequate reasons for preferring the evidence of Mr. Pennycott on the essential issue of causation. This was not a case in which either Mr. Pennycott or Mr. Law were cross-examined in great detail as to the bases of their respective approaches and the matter was left, rather, as a conflict between two conflicting assertions. In that situation it is, in our view, unrealistic to expect the sheriff to say much more than he did as to why he preferred the evidence of Mr. Pennycott.
9. What we have said so far is, we think, sufficient for disposal of the present appeal. If, however, it were necessary to go further and express a view de novo on the evidence, then we are ourselves in no doubt that the essential finding in fact (14) was properly made in the terms set out above. For our own part, we find the evidence of Mr. Law and his supporting witnesses as being somewhat vague and at times inconsistent. One example of vagueness is the failure to explain how general stress can so affect the immune system as to allow the ingress into the bloodstream of the bacteria in question. One example of inconsistency is the matter to which we have already adverted, namely differing accounts of the enteritis as being merely a symptom of stress, on the one hand, and, on the other hand, as in some way adding to or causing the stress which in turn led to a "fulmination" of the bacteria. Moreover, although great emphasis was laid on the coincidence in timing as regards change of feed and onset of illness, the defender in fact gave evidence that the bulk of the birds died "within the first two to three weeks" which Mr. Pennycott said represented too long a delay for there to be a connection, particularly where the birds were treated with a digestive tract antibiotic in the interim.
10. There is one further aspect of the evidence given by Mr. Law and Mr. Inglis which calls for particular comment. It is fairly clear from the evidence given by both witnesses, in our opinion, that what they envisaged was not that every dead turkey had previously had present in it the pasteurella haemolytica bacteria which stress had then allowed to fulminate but, rather, that only a few of the birds would have been affected in that way with infection then spreading directly to other birds in the flock. This part of the thesis advanced by Mr. Law and Mr. Inglis was, however, again firmly rejected by Mr. Pennycott at p. 115 of the Notes of Evidence where he gave what we believe to be unchallenged evidence that

"experiments have been carried out to take pasteurella haemolytica from infected birds and put it into healthy birds and if there is no underlying problem with these birds, the organism stays at the upper respiratory tract and doesn't cause problems so that the ripple effect wouldn't happen."

Mr. Pennycott said that the same underlying condition would require to be present in all the affected birds. He repeated that in his opinion the cause of death of the turkeys was "a primary respiratory infection with a secondary pasteurella haemolytica involvement."

11. In the result, we are bound to say that, in common with the sheriff, we also find Mr. Pennycott's evidence, not only coherent, but cogent and, were it necessary to do so, we would be prepared to accept it in preference to the competing expert evidence. It is, however, on any view sufficient for the disposal of this appeal to uphold the sheriff's finding in fact that the defender had failed to prove the causal connection which he alleged.
12. For all the foregoing reasons this appeal will be dismissed.