Scottish High Court of Justiciary Decisons

WILLIAM AND MARGARET ADAMSON t/a JOHN ADAMSON & SONS v. PROCURATOR FISCAL, LANARK [2000] ScotHC 102 (31st October, 2000)

[1] The appellants were charged on complaint that:

[2] After a trial at Lanark Sheriff Court on 8, 9, 15, 18 and 24 June 1999, the Temporary Sheriff (J. McA. Penman) on 6 July found the appellants guilty as libelled. He imposed a fine of £2,500 on the first appellant and admonished the second appellant. He found the following facts admitted or proved:

[3] Although a number of questions were posed in the original stated case, counsel for the appellants restricted his submissions to three of these as follows:

[4] So far as bearing directly upon the remaining questions, certain passages of evidence have significance. A neighbour, Mrs. Renton-Jowett said that, when she had been out walking her dog on the road next to the field on the morning of 1 June 1998, the first appellant came from the opposite direction with a flock of sheep. He said to her that the bull had been giving workmen some "bother" such that they had not been able to finish their work. As she walked on, she saw the bull snorting and bellowing and pawing the ground.

[5] The appellants' son spoke to the bull having a chain attached to its nose ring for handling purposes. William Parker, a co-owner of the bull, said that such a chain would be fitted where a bull was difficult to handle. A longer chain could be used to hobble a bull.

[6] The procedure for testing the water was described by the co-employee of the deceased, Peter Smith, who normally carried out the sampling. The test was a daily one, which took about ten minutes to complete. Mr. Smith was in the habit of placing the testing kit used on the driver's seat. He had never been required to go over the fence into the field. Another co-employee, William Grieve, described how a sample would be taken, first by running the water for a short time, then by taking a sample and finally by taking it back to the van, where the testing kit would have been laid out. After the incident, Mr. Grieve had found the tap running but the kit unused. It appeared to him, therefore, that the stage of actually taking a sample from the tap had not been reached.

[7] Weston Todd saw the deceased's van arriving at the locus. It was only about five minutes later that he saw the deceased being gored by the bull in the roadway. Police officers found items of the deceased's personal property just inside the fence line (between one metre and one and a half metres).

[8] One fence post recovered from the locus by the Health of Safety Executive inspector James Young was found to be rotten. He and his colleague Kenneth Fawell inspected forty-four posts at the locus and found nine loose. The posts were, according to Mr. Fawell, suffering from old age. Neither inspector considered the fence to be in good condition and properly able to secure stock. Mr. Fawell was surprised to find that it had not been electrified as he thought that to be essential given the presence of a bull in a field next to a public highway. Although it was difficult to secure a determined or angry bull, fencing in good condition and with the added deterrent of an electrified strand would properly secure stock in ordinary circumstances, including bulls.

[9] Robert Frame, a farmer, said electrified fences were very effective. Bulls could still barge through them but his experience was that they got used to an electrified fence and avoided it. He would have fitted one at his own farm but for the high risk of vandalism there. Jan Downer, a veterinary surgeon, said that a waist-high electrified fence should be used to secure a field although in abnormal circumstances, where a bull panicked or was determined to mate, such electrification might not deter it. Mr Ranald Brown, who worked most of his time on the appellant's farm, regarded the fence as "stock-proof", even for bulls. He conceded, however, that an electrified fence, which had been fitted in the past, would probably have kept the bull in the field.

(a)  APPELLANTS

[10] Counsel for the appellants advanced four propositions. First, he submitted that the Sheriff was not entitled to be satisfied that any failure on the part of the appellant caused the risk to the health and safety libelled. That risk was one of being attacked by the bull. However, the existence of the bull in the field posed no risk of itself. There had been no direct evidence of where the attack had started and the absence of such evidence was decisive. The causal link between the failure alleged (the insecurity of the fencing) and the risk libelled (an attack outside that fencing) had not been made out.

[11] Secondly, the Sheriff was not entitled to hold that it was reasonably practicable to take further precautions in relation to the security of the bull in question. In particular, he was not entitled to hold that the precautions suggested would have given such a degree of security as to justify imposing a duty on the appellants to implement them. The point here was, it was said, that this bull had suddenly become agitated and excited. The evidence was that a bull in such a state could not have been kept secure even by a well-maintained and electrified fence of the type in use here. If an event was unusual and the steps suggested to prevent it could not guarantee such prevention, it was not reasonably practicable for these steps to be carried out (Marshall v Gotham Co. Ltd. [1954] AC 360, Lord Reid at 373, Lord Tucker at 376).

[12] Thirdly, in so far as the Sheriff proceeded on the basis that the appellants knew of any aggressive tendencies on the part of the bull, his findings-in-fact were inconsistent and contradictory. On the evidence he was not entitled to find such knowledge. The inconsistency was between findings in fact 6 and 7.

[13] Fourthly, as a separate point, although it also arose in the first submission, counsel submitted that, in order to prove the case, the Crown had to show that the attack occurred outside the appellants' field. On the evidence, the Sheriff was not entitled to hold that the onus on the Crown to prove that fact had been discharged.

(b)  CROWN

[14] On the first point, the Advocate Depute submitted that there was no need to prove a causal link between the failure alleged and the events that actually happened. It was sufficient that there existed a risk, that is to say the "possibility of danger" (R v Board of Trustees of the Science Museum [1993] 1 WLR 1171, Steyn LJ at 1177-1178; Lockhart v Kevin Oliphant Ltd. 1993 SLT 179 at 183). Once that risk was shown, it was for the appellants to demonstrate that they had taken all practicable precautions to prevent it occurring, in the sense of materially reducing the risk of an occurrence.

[15] On the second point, the Advocate Depute submitted that there was ample evidence from the Health and Safety Executive Inspectors, Mr. Young and Mr. Fawell, that the precautions desiderated would have materially reduced the risk of escape, and hence attack. The defence witness, Mr. Frame, had supported this evidence.

[16] On the third point, the Advocate Depute said that it was not necessary to show that the appellant had any knowledge of this bull's aggressive tendencies. The offence was one of strict liability and it was not doubted that bulls, as a generality, could be both unpredictable and dangerous. In any event there was evidence bearing upon the first appellant's knowledge stemming from what he said to Mrs. Renton-Jowett and the existence of the chain attached to the bull's nose ring.

[17] On the fourth point, the Advocate Depute argued that there was no need to show that the attack occurred outside the fence. Once the security system was shown to have been inadequate, that was enough to prove the offence in the absence of the defence of reasonable practicability being made out. In any event, the Sheriff was entitled to hold from the evidence of the system of sampling that the attack had occurred outside the fence.

[18] Section 3(2) of the 1974 Act creates an offence of absolute liability subject only to the defence of reasonable practicability. What requires to be proved by the Crown is that a particular operation exposed persons to the risk of harm, in this case physical injury. It is sufficient for the proof of the existence of risk that a possibility of danger is created. Actual harm need not be proved (R v Board of Trustees of the Science Museum (supra)). If such possibility is made out on the evidence then a conviction is bound to follow unless the defence is established. Of course the Crown is obliged, as a matter of fair notice, to specify in the charge the particular operation said to give rise to the risk. In this case, that operation was the keeping of a bull in a field, which was not secured. It was also libelled that, as a result of the operation, the bull escaped from the field and killed the deceased but that part of the libel did not require to be proved for the substantive element of the charge to be made out. That element would be made out if it were demonstrated that the field was not secured and, as a result, there existed a possibility of danger to others, such as people working at the other side of the fence on the verge of the public highway.

[19] Evidence that the deceased had been attacked outside the field was not necessary. However, we are satisfied that the Sheriff was entitled to infer and find, as he did in findings-in-fact 15 and 16, that the bull had gone through the fence and attacked the deceased on the road side of the fence. The Sheriff did so on the basis that at the time of the attack all the deceased had been doing was carrying out a routine task. This task, which had been described by his co-employees Mr. Smith and Mr. Grieve, did not require him to enter the field. There was no reason for the deceased to have done so. Given also the timing spoken to by Mr. Todd, the Sheriff was entitled to hold that the deceased had not entered the field but was somewhere between the water sampling point and the near-side door of his van. It followed from this that the bull must have come through the fence and attacked him. Equally, the Sheriff was entitled to take the view that the finding of the deceased's personal items within the fence line could not be taken as demonstrating that the attack must have occurred inside that line. Rather, the items could have been lost when the deceased had been thrown against the fence by the bull. In these circumstances, we feel unable to sustain the appellants' fourth proposition.

[20] In determining whether the possibility of danger existed, it was not disputed that bulls can be dangerous and unpredictable animals. Indeed over the years the characteristics of bulls have often come to the attention of the courts and bulls have long been seen as potentially dangerous. The Sheriff made an express finding of their propensities (finding-in-fact 4). If a bull is kept in a field next to the public highway, which is inadequately secure in the sense of being incapable of restraining a bull, then there can be little doubt that the possibility of danger will be made out. It was not disputed that a bull in an excited state could overcome the security of this type of fence. Should it do so, it might attack people going about their business on the public highway. That being so, as there was a bull in this field and bulls can become excited and go through such fences, the possibility of danger was made out. We therefore reject the appellants' first proposition.

[21] In looking at the question of whether practicable steps can be taken to avoid a perceived danger, the test is not whether steps can be taken which are guaranteed to prevent the risk being translated into injury but whether steps exist which can materially reduce the risk of such an injury occurring. The Sheriff accepted, as he was entitled to do, the evidence of the Health and Safety Executive inspectors, Mr. Young and Mr. Fawell, that this fence was not in good condition in that it was old and parts of it were loose and rotten. He accepted their evidence that the field could have been made more secure had an electrified strand been incorporated into it. The defence witnesses Mr. Frame and Mr. Downer agreed with this. There was no suggestion that it would have been difficult or costly to ensure that the fence posts were in a solid base or that the fence was electrified, as it had been in the past. That being so, there was little prospect ultimately of the defence of reasonable practicability being made out. In this regard, the case is quite different from Marshall (supra) where the risk of a mine collapse was created by an unusual geological condition not found in the mine for some twenty years. The danger was a very rare or remote one (Lord Reid at 373, Lord Tucker at 376). That cannot be said about the dangers arising from the presence of a bull in a field through which it might choose to wander. Furthermore, in Marshall, the trouble and expense required to reduce the risk were considerable (Lord Reid at 373) and of an elaborate nature (Lord Tucker at 376). That was not the case here. Although in both Marshall and the present case the steps taken would not have eliminated the danger as a matter of scientific certainty, there the similarity ends. If a precaution substantially reduces a risk of the type under consideration then, if reasonably practicable, it has to be adopted if criminal responsibility under the section is to be avoided. The fact that a precaution does not provide a guarantee of safety does not permit a person undertaking work to ignore it. We are satisfied that the Sheriff was entitled to hold that the precautions desiderated were reasonably practicable and that they would have materially reduced the danger involved in keeping a bull running with heifers in an open field. We therefore reject the appellants' second proposition.

[22] The Sheriff founded first upon the conversation between the first appellant and Mrs. Renton-Jowett in holding that the appellants were aware of this particular bull's aggressive tendencies. We are satisfied that he was entitled to do so. He rejected the first appellant's evidence where it was inconsistent with Mrs. Renton-Jowett. That being so, the situation was that, a week before the incident, the first appellant was aware that the bull was "bothering" workmen in the vicinity of the field. We do not have any difficulty in interpreting the word "bother" in the context of a bull and workmen as meaning that the bull was behaving in an aggressive manner such as caused alarm to the workmen. It is not without significance that the bull was behaving in that manner when Mrs. Renton-Jowett saw it shortly after the first appellant had passed by. In support of this evidence, the Sheriff noted that this bull had a chain attached to its nose ring and this, according to Mr. Parker, was a method of handling difficult bulls. The combination of such evidence was sufficient for the Sheriff to conclude, as he did in finding in fact 7, that the first appellant was aware of the bull's aggressive tendencies. We are unable to detect any inconsistency between that finding and finding-in-fact 6. We therefore reject the appellants' third proposition.

[23] This is clearly an anxious and distressing case but, from the stated case, it appears that the Sheriff dealt with the evidence and the submissions with considerable care. We are unable to detect any error in his reasoning and answer the second, fourth and tenth questions in the affirmative and refuse the appeal.