SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT ABERDEEN
A1726/05
JUDGEMENT
of
SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
MICHAEL DAVIDSON
Pursuer and Appellant
against
JOHN McIRVINE
Defender and Respondent
|
Act:
Mr D G Hamilton, advocate, instructed by Digby Brown, Edinburgh
Alt:
Mr R W Dunlop, advocate, instructed by Simpson & Marwick, Aberdeen
Aberdeen: 14th June 2007
The
sheriff principal, having resumed consideration of the cause, refuses the
appeal and adheres to the interlocutors of the sheriff dated 19 February and 28
March 2007; finds the pursuer and appellant liable to the defender and
respondent in the expenses of the appeal and allows an account thereof to be
given in and remits the same, when lodged, to the auditor of court to tax and
to report; certifies the appeal as suitable for employment by the defender and
respondent of junior counsel; quoad ultra
remits the cause to the sheriff to proceed as accords.
Note
[1] In this case the pursuer and appellant
sought damages from the defender and respondent following a collision on 31
January 2004 in which the car which the pursuer was driving collided with a
bull belonging to the defender. The
proof before the sheriff was restricted to the issue of liability, quantum
having previously been agreed in the sum of £3,500.
[2] The circumstances of the accident as
disclosed by the sheriff's findings in fact were briefly as follows. The defender is a retired farmer but still
looks after Culdrain Farm at Gartly, Huntly, with the assistance of his
son. At about 5.30 pm on 31
January 2004 the pursuer was driving his car on the A97 road near
to the farm. At the time it was dark and
the road was wet and quite slippery. The
pursuer drove his car round a left hand bend and suddenly and without warning
was confronted by a bull standing on the road.
The pursuer was unable to take evasive action and his car collided with
the bull with the result that the car sustained very severe frontal
damage. There was nothing that the
pursuer could reasonably have done which would have prevented the accident.
[3] Having narrated the circumstances of the
accident, the sheriff proceeded to make a number of findings in fact about the
circumstances in which the bull had come to be on the road. These were as follows:
(11) Prior
to the accident the bull in question had been kept in a barn forming part of
the defender's farm buildings. The barn
is approximately 500 metres from the place where the accident occurred.
(12) The
bull burst through the gate of the barn and entered a paddock area. It then jumped a fence into an adjoining
field before jumping another fence into a field located next to the road. Finally, it jumped the fence at the roadside
where there is a drop of about eight feet down to the level of the road.
(13) The
aforementioned fences are approximately three and a half to four feet in height
and are made of barbed wire and plain wire with pikey wire on top.
(14) There
were no damaged fences or gaps in the fencing anywhere near the place where the
accident occurred. Nor in the same area
were there found to be any open gates.
(15) None of the defender's
bulls had ever previously escaped from the barn.
(16)
The bull which was involved in the accident had not to
the defender's knowledge previously
behaved in this manner.
[4] In light of these findings in fact the
sheriff found in fact and in law that it had not been proved that the accident
had been caused by fault and negligence on the part of the defender or of any
one for whom he was liable, and he therefore granted decree of absolvitor in
favour of the defender.
[5] Before the sheriff it was argued for the
pursuer that the defender had been negligent in allowing the bull to escape
from the farm because it was obvious that, if it did so, it was likely to get
onto the road. It was said that the
defender should have ensured that the bull was secured within the barn and,
since it plainly had not been, it was reasonably foreseeable that the animal
would get onto the road where it would present a hazard to persons such as the
pursuer. For the defender, on the other
hand, the argument in short was that the pursuer had not established that the
defender had failed to exercise reasonable care, and further that it was not
reasonably foreseeable that the accident which took place would occur.
[6] In a nutshell therefore the issue before
the sheriff was whether the pursuer had proved that it was reasonably
foreseeable that, if the bull escaped from the barn, it would make its way onto
the road along which the pursuer was driving.
On this critical issue the sheriff found in favour of the defender,
being satisfied that the risk of harm to the pursuer from the bull was not
reasonably foreseeable. Thus at page 6
of his note he wrote:
In the present case I have found that the bull managed to get out of the
barn by bursting through the gate of the barn and entering the paddock. So the defender may be open to the criticism
that he failed to put measures in place which were sufficient to keep the bull
securely in the barn. But I cannot
accept that the sequence of events described in finding 12 was reasonably
foreseeable to the defender, particularly since this particular bull had not
behaved in this way before. It is within
judicial knowledge that if one is travelling in the countryside it is not
uncommon to see bulls in fields and, therefore, it must be doubtful whether it
can be successfully argued that any farmer who allows a bull to be in a field
near a road, rather than securely locked away in a barn or other building, is
guilty of negligence.
Although I have sympathy with the pursuer who suffered losses through no
fault of his own I am quite satisfied that he is not entitled to damages from
the defender since in the whole circumstances of the case it has not been
established that the accident was caused by any fault or negligence on the part
of the defender. Accordingly, I have
granted decree of absolvitor.
[7] At the hearing of the appeal counsel for
the pursuer submitted that upon a proper consideration of the whole evidence
the sheriff ought to have found that it was reasonably foreseeable that, if the
bull escaped from the barn, it would end up on the road with the result in turn
that the defender should have been found liable in damages to the pursuer. Counsel accepted all the sheriff's findings
in fact subject to two minor qualifications.
In the first place he referred to the sheriff's finding in fact 11 where
it is said that the barn is approximately 500 metres from the place where the
accident occurred. Counsel drew
attention to the evidence of one of the police officers who were called as
witnesses for the pursuer to the effect that 100 metres would be a rough estimate
of the distance. By way of contrast the
defender's son said that the distance was about 500 yards. Counsel accepted that it was a matter for the
sheriff to decide whose evidence to prefer on this point but he suggested, as I
understood him, that the distance should have been stated as either 100 metres
or 500 yards, and not 500 metres. For my
own part, and bearing in mind that the distance as found by the sheriff was
"approximately 500 metres", I do not think that I would be justified in
interfering with the sheriff's finding, and in any event the difference between
500 metres and 500 yards is in my opinion immaterial in the circumstances of
this case.
[8] In the second place counsel drew
attention to the first sentence in finding in fact 12 where the sheriff found
that the bull burst through the gate of the barn. Counsel pointed out that according to the
evidence of the two police officers who had gone back to the farm on the day
after the accident the defender's son (who had not been at the farm at the time
of the accident) told them that he was aware of the accident and that the bull
had escaped from a shed. Later in the
evidence (at page 78D/E) it was put to the defender himself that his son had
stated that the bull had escaped from the barn and he was asked whether he
would dispute this to which the defender replied: "I wouldn't dispute
that. If he said that, that would be
right enough, I think". Counsel
submitted in light of this evidence that the words "escaped from" should be
substituted for the word "burst" in this finding in fact.
[9] In response to this particular
submission, counsel for the defender drew attention to two short passages in
the evidence of the defender in cross-examination where he referred to the gate
of the barn being burst open, and in my opinion the sheriff was quite entitled
to find that the bull had burst the gate open rather than merely escaped
through it. In any event, again I cannot
think that the distinction between the two expressions is at all material.
[10] Counsel for the pursuer further submitted
that three new findings in fact should be added to those which had been made by
the sheriff. These were as follows:
(a)
At the time of the accident, the defender was aware
that bulls could jump over fences of up to eight feet, approximately twice the
height of the fences in operation.
(b)
At the time of the accident, the defender was aware
that bulls and other animals often escaped onto the road running through his
farm and required to be put back into fields, often by the defender
himself.
(c)
The bull found to have caused the accident was at the
time of the accident being kept on its own.
Bulls kept on their own will often escape and seek out nearby cattle.
Counsel proposed
that the new finding (a) should be inserted after finding in fact 13, (b) after
finding in fact 15 and (c) after finding in fact 16. Counsel then suggested that in light of these
additional findings the sheriff's finding in fact and in law should be deleted
and in its place there should be substituted a new finding in fact and in law
as follows:
Finds in fact and law that it is proved that the accident to the pursuer
was caused by fault and negligence on the part of the defender.
Although not
stated explicitly, counsel submitted that it was implicit in this new finding
in fact and in law that it was reasonably foreseeable that, if the bull escaped
from the barn, it would get onto the road.
[11] In support of his proposed findings in
fact (a) and (b) counsel for the pursuer drew attention to the evidence of the
defender, which is already reflected in the existing finding in fact (13), to
the effect that the fences in the area were three and a half to four feet in
height. Counsel then pointed out a
passage (at page 76B/D) in the evidence of the defender which reads:
If the bull had jumped the fence, it would have to jump down a height of
approximately 8 feet? - Yes, that's right.
In order to get back into the field, it would have to jump 8 feet? - That
would be more difficult.
Would any bull that you are aware of be able to jump that sort of height?
- You would be pushing it at that height.
I wouldn't say it would be impossible but virtually impossible, I would
say.
Finally in this
context counsel drew attention to another passage (at page 83D/F) in the
evidence of the defender as follows:
You have, all along, taken it for granted that it was your bull involved
in this? - Yes.
You are not now trying to suggest it is someone else's bull? - There is a
lot of times I have been got out of bed to put other people's bulls back and
sheep back into fields. That instance
you are speaking of, it might be my cattle, it might be the chap along the
road's, but it is nearly always me that is called to attend to it.
With reference
to this last passage counsel drew attention too to the evidence of one of the
police officers who confirmed that it was "not uncommon" for cattle to be on
the road where there is no damage to fencing.
[12] In support of his proposed finding in fact
(c) counsel founded on various short passages in the evidence of the defender's
son. At page 95A he was asked how the
animals were kept secured in steadings and he replied: "Heavy duty metal gates
and concrete walls" and he then confirmed that the animals were not allowed to
roam in the field. At pages 96F/97A he
spoke of the assumption having been put to him by one of the police officers
that it was a bull from his father's farm which had caused the accident, and he
stated: "I said there was a bull round the back which, for no other reason but
he is on his own, and sometimes when they are on their own, they can break out
and I said it could have been him. Could
have been". He made much the same point
at page 103E where he said: "I said to the police officer that I assumed this
bull was involved. The only reason I thought
that was because he was on his own. He
was one bull on his own and they can go looking for other cows and cattle", and
again at page 107D/E where he said: "I assumed that it was him because he was
on his own and didn't have any company with other cattle and he could have
strayed because they are like that. If
there is not the company of cows, they can go looking for other cattle".
[13] Counsel also referred here to a passage in
the evidence of the defender's son at page 99D/E which reads:
You didn't actually witness the accident? - Not at all, no.
So, you have mentioned the bull would have had to have gone over gates
and things? - Yes.
Is that something that is likely? - It's feasible.
Is it common, has an animal ever done it? - No.
Counsel referred
here also to a passage at page 100B/C where the defender's son was asked:
In your opinion, is it possible for a bull to get from the road? - That
would be his biggest hurdle, crossing the wall going onto the road.
Are we talking about getting back into the field? - Coming down wouldn't
have been a problem for him but going up would have been a big problem.
[14] Counsel for the defender submitted that
these three new proposed findings in fact were not warranted by the evidence
and in any event did not support a finding that it was reasonably foreseeable
that, if it escaped from the barn, the bull would end up on the road. Referring to the proposed finding in fact
(a), counsel pointed out that the evidence of the defender had been that it
would be "virtually impossible" for a bull to jump up eight feet. As for the proposed finding in fact (b)
counsel pointed out that, in speaking of having to get out of bed to put bulls
and sheep back into fields, the defender was referring to other people's animals,
and not his own, and further that the route taken by these animals to the road
was not known. Counsel also emphasised
here that the existing findings in fact 15 and 16 had not been challenged by
the pursuer. Finally, with reference to
the proposed finding in fact (c), counsel pointed out that the pursuer did not
have a case based upon the proposition that it was negligent to keep a bull on
its own, and no criticism had been made of the defender during the proof on
account of the fact that the bull in question had been on its own at the
material time. In any event the passages
in the evidence of the defender's son relied upon by counsel for the pursuer
merely established why the bull might have broken out of the barn and further
that a bull left on its own had a tendency to roam. But, said counsel, none of this evidence was
apt to support the proposition that bulls and other animals "often escaped",
nor did it establish the foreseeability of the bull vaulting over three fences
on its way from the barn to the road.
[15] In my opinion it would not be right to add
a new finding in fact in the terms proposed in finding in fact (a) without
adding a qualification to the effect that it would be virtually impossible for
a bull to jump over a fence of up to eight feet in height. As for the proposed finding in fact (b), this
is in my view misleading in its present form since, as counsel for the defender
pointed out, it is clear from the passage in the evidence of the defender upon
which counsel for the pursuer founded that the defender was talking about other
people's bulls, and moreover the route taken by these bulls to the road was not
stated. As for the proposed new finding
in fact (c) it is true that the bull which caused the accident was at the
material time being kept on its own. But
it seems to me to be an overstatement in light of the evidence to which I was
referred to say that bulls kept on their own will "often escape and seek out
nearby cattle", and in any event this seems to me to be beside the point. In the present case, it is one thing to say
that a bull might escape from a barn in search of cows, but quite another to
say that a bull in search of cows will travel approximately 500 metres jumping
over three fences in the process, the last of these involving a drop of some
eight feet down onto the road.
[16] Even if I had been disposed to add the
additional three findings in fact in the precise terms proposed by counsel for
the pursuer, I do not think that I should have been prepared to add a further
finding to the effect that it was reasonably foreseeable that, if the bull in
question escaped from the barn, it would end up on the road. I refer here in particular to the existing
findings in fact (14), (15) and (16) and the evidence of the defender's son at
page 99D/E.
[17] Counsel for the defender submitted that,
even if it had been shown to be reasonably foreseeable that, if it escaped from
the barn, the bull would end up on the road, it had not been proved that there
had been any failure to take reasonable care on the part of the defender to
prevent the bull escaping either from the barn into the adjacent paddock or
from the paddock onto the road. Counsel
submitted too that I should not be entitled to depart from the sheriff's
conclusion that it was not reasonably foreseeable that, if it escaped from the
barn, the bull would end up on the road unless I was satisfied that he was
plainly wrong about this. Reference was
made here to Thomas v Thomas 1947
SC(HL) 45, Thomson v Kvaerner Govan
Limited 2004 SLT 24 and Macphail's Sheriff Court Practice (3rd Edn) at
paragraphs 18.103-106. In view of what I
have already said, I need not express a concluded opinion on these submissions
and I will merely say that I thought there was considerable force in them.
[18] On the whole matter I am quite unable to
say that I think that the sheriff was wrong to have granted decree of
absolvitor in favour of the defender, and I have refused the appeal
accordingly.
[19] It was agreed that the expenses of the
appeal should follow success and that certification of the appeal as suitable
for the employment of junior counsel should be granted to the successful
party. I am satisfied that this would be
appropriate in this particular case.
[20] For the sake of completeness, I should
record that in addition to the authorities which I have already mentioned I was
referred to Wark v Steel 1946 SLT
(Sh.Ct.) 17, Gardiner v Miller 1967
SLT 29, Swan v Andrew Minto & Son
1998 Rep LR 42, Bolton v Stone 1951 AC 850 and Dobbie v Henderson 1970
SLT (Sh.Ct.) 27.
