Animals
Legislation
Animals Act 1985
Interpretation.
1.—(1) In this Act—
“the Act of 1851” means the Summary Jurisdiction (Ireland) Act, 1851 ;
“the Act of 1935” means the Pounds (Provision and Maintenance) Act, 1935 ;
“animal”, except in section 2 , means a bovine animal, horse, ass or other equine animal, sheep or goat;
“damage” includes the death of, or injury to, any person (including any disease and any impairment of a person’s physical or mental condition) and injury to or total or partial destruction of property;
“local authority” has the meaning assigned to it by section 1 of the Act of 1935;
“the Minister” means the Minister for Justice;
“public road” means a road the responsibility for the maintenance of which lies on a road authority and includes a toll road within the meaning of the Local Government (Toll Roads) Act, 1979 , and, for the purposes of section 2 , also includes any highway;
“road authority” means—
(a) the council of a county,
(b) the corporation of a county or other borough, or
(c) the council of an urban district.
(2) In this Act a reference to a section is to a section of this Act, unless it is indicated that reference to some other enactment is intended.
(3) In this Act a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.
Duty to take care to prevent damage by animals straying on to public road.
2.—(1) So much of the rules of the common law relating to liability for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying on to a public road is hereby abolished.
(2) (a) Where damage is caused by an animal straying from unfenced land on to a public road, a person who placed the animal on the land shall not be regarded as having committed a breach of the duty to take care by reason only of placing it there if—
(i) the land is situated in an area where fencing is not customary, and
(ii) he had a right to place the animal on that land.
(b) In this subsection “fencing” includes the construction of any obstacle designed to prevent animals from straying, and “unfenced” shall be construed accordingly.
Amendment of Dogs Act, 1906.
3.—The Dogs Act, 1906, is hereby amended by the substitution of the following section for section 1:
“1.—(1) The owner of a dog shall be liable in damages for damage caused in an attack on any person by the dog and for injury done by it to any cattle; and it shall not be necessary for the person seeking such damages to show a previous mischievous propensity in the dog, or the owner’s knowledge of such previous propensity, or to show that such injury or damage was attributable to neglect on the part of the owner.
(2) Where any such damage or injury has been done by a dog, the occupier of any premises where the dog was kept or permitted to live or remain at the time of the damage or injury shall be presumed to be the owner of the dog, and shall be liable in damages for the damage or injury unless he proves that he was not the owner of the dog at that time: provided that where there is more than one dwelling in any house, the occupier of the particular dwelling in which the dog has been kept or permitted to live or remain at the time of the damage or injury shall be presumed to be the owner of the dog, unless the contrary is proved.
(3) Where a dog is proved to have caused damage in an attack on any person, or to have injured cattle or chased sheep, it may be dealt with under section 2 of the Dogs Act, 1871, as a dangerous dog.
(4) Where cattle are injured by a dog on land on to which they had strayed, and either the dog belonged to the occupier of the land or its presence on the land was authorised by the occupier, a person is not liable under this section in respect of injury done to the cattle, unless the person caused the dog to attack the cattle.
(5) A person is liable in damages for any damage caused by a dog kept on any premises or structure to a person trespassing thereon only in accordance with the rules of law relating to liability for negligence.
(6) (a) Any damage or injury for which a person is made liable under this section shall be deemed to be attributable to a wrong within the meaning of the Civil Liability Act, 1961 , and the provisions of that Act shall apply accordingly.
(b) Paragraphs (a) and (b) of subsection (2) of section 11 of the Statute of Limitations, 1957 , shall apply in relation to any such damage.
(7) In this section—
‘damage’ has the same meaning as in the Animals Act, 1985;
‘premises’ includes any house or land.”.
Impounding of certain wandering or trespassing animals by Garda Síochána or local authorities.
4.—(1) In this section—
“public place” means any street, road or other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge; and
“State authority” means a Minister of the Government or the Commissioners of Public Works in Ireland.
(2) (a) Subject to paragraph (b), a member of the Garda Síochána or any local authority may impound any animal found wandering on a public road or in any public place, or trespassing on any public park or open space which is owned or occupied by a local authority or a State authority.
(b) In relation to any such public park or open space, the power to impound conferred by paragraph (a) may be exercised only on request by the authority by which such public park or open space is owned or occupied.
(3) The Commissioners of Public Works in Ireland may impound any animal found trespassing on any public park which is under the control and management of the Commissioners.
(4) Paragraph 11 of section 10 of the Act of 1851 and section 20 of that Act shall not apply in relation to the impounding of an animal by a member of the Garda Síochána or by a local authority or by the Commissioners of Public Works in Ireland.
(5) Where an animal is impounded in pursuance of the powers conferred by this section, the authority by which the animal is impounded may recover the cost of transporting the animal to the pound from the owner of the animal as a simple contract debt in any court of competent jurisdiction.
Control of Dogs Act 1986
Liability of owner for damage by dog.
21.— (1) The owner of a dog shall be liable in damages for damage caused in an attack on any person by the dog and for injury done by it to any livestock; and it shall not be necessary for the person seeking such damages to show a previous mischievous propensity in the dog, or the owner’s knowledge of such previous propensity, or to show that such injury or damage was attributable to neglect on the part of the owner.
(2) Where livestock are injured by a dog on land on to which they had strayed, and either the dog belonged to the occupier of the land or its presence on the land was authorised by the occupier, a person shall not be liable under this section in respect of injury done to the livestock, unless the person caused the dog to attack the livestock.
(3) A person is liable in damages for any damage caused by a dog kept on any premises or structure to a person trespassing thereon only in accordance with the rules of law relating to liability for negligence.
(4) ( a) Any damage or injury for which a person is made liable under this section shall be deemed to be attributable to a wrong within the meaning of the Civil Liability Act, 1961, and the provisions of that Act shall apply accordingly.
( b) Sections 11 (2) ( a) and 11 (2) ( b) of the Statute of Limitations, 1957, shall apply to such damage.
Annotations:
Modifications (not altering text):
C1
Reference construed (10.07.1991) by Statute of Limitations (Amendment) Act 1991 (18/1991), s. 3(4), commenced on enactment. Note that s. 3(1) is prospectively substituted by Legal Services Regulation Act 2015 (65/2015), s. 221(1)(a), not commenced as of date of revision.
Special time limit for actions in respect of personal injuries.
3.—(1) An action, other than one to which section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of [2 years] from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.
…
(4) The reference in section 21 (4) (b) of the Control of Dogs Act, 1986, to section 11 (2) (b) of the Principal Act shall be construed as a reference to subsection (1) of this section.
Cases
Moloney v Stephens
[1945] Ir Jur Rep 37
O Briain J: This case involves an interesting question oflaw, and one which, as appears from the reports, has not received much consideration. My personal reaction to the case apart from authority was that the defendant should not be held liable.
As I read M’Gibbon v M’Curry 43 IL TR 132 it is an authority binding on me and in favour of the defendant. The report is not free from ambiguity, but the several references in it to trespass, and the fact that Salmond on Torts, in repeated editions, has taken it as an authority on cattle trespass determine my attitude. I am faced with a decision of the courts prior to 1922 but incorporated into the law of this State by the Constitutions. I hold that the defendant has established a good defence in law to this action by showing that the trespass complained of was caused by the wrongful acts of a third party. Accordingly, I affirm the order of the learned District Justice, and dismiss the appeal.
Kennedy v McCabe
103 ILTR 110 (CC, 1969)
Judge Ryan: The plaintiff must succeed in this case. I reserved my judgment to enable me to refer to Glanville Williams on Liability for Animals. The following passage from that work at page 373 appears to cover this case:
“The animals that escaped must have been lawfully on the highway – ie, they must have been there in pursuance of the right of passage, and not merely straying upon it. This was laid down in Dovaston v Payne (1795); the rule is analogous to that which exists in the case of prescriptive and statutory duties to fence. Its justification at the present day is that damage done by straying cattle is not one of the risks that those who have property adjacent to a highway may be expected to assume. Where cattle stray in this way the landowner may lawfully replace them on the highway or distrain them damage feasant; in the former case he may also bring an action of cattle-trespass.”
Decree for the plaintiff.
O’Reilly v. Lavelle
[1990] 2 IR 372 Johnson J.
This is an appeal from a decision of the Circuit Court held at Castleblayney in the County of Monaghan on the 24th October, 1989.
This is an action taken by the plaintiff motorist who after dark at about 10.00 p.m. on the 25th June, 1987, at Tullybruck, Clontibret in the County of Monaghan collided with an animal, a fresian calf. The animal was killed and the plaintiff’s motor vehicle was severely damaged and he is claiming the cost of the repairs and damages. The defendant claims that the accident was caused by the negligence or contributory negligence of the plaintiff.
On the opening of the case counsel for the plaintiff submitted that while he had not specifically pleaded the doctrine of res ipsa loquitur he was entitled to rely on the doctrine provided his pleadings were adequate and that the facts proved show the doctrine to be applicable. This was strenuously opposed by counsel for the defendant.
In my opinion the submissions made on behalf of the plaintiff are correct and the law on this particular point of law has been well stated by Griffin J. in Mullen v. Quinnsworth Ltd. [1990] 1 I.R. 59 where he states at p. 62 of the report:
“This principle was stated as long ago as 1865 by Erle C.J., in Scott v. London and St. Katherine Docks Co. (1865) 3 H. & C. 596. There the Chief Justice said at p. 601:
‘There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’
In the instant case the floor was under the management of the defendant, or its servants, and the accident was such as, in the ordinary course of things, would not happen if the floors are kept free from spillage of this nature. The onus is therefore on the defendant to show that the accident was not due to any want of care on its part. On the hearing of the appeal, the defendant objected to the plaintiff relying on this maxim because it was not pleaded. In my opinion, this doctrine does not have to be pleaded before a plaintiff may rely on it. If the facts pleaded and the facts proved show that the doctrine is applicable to the case, that is sufficient see Bennett v. Chemical Construction (G.B.) Ltd. [1971] 1 W.L.R. 1572.”
Section 2, sub-s. 1 of the Animals Act, 1985, provides:
“So much of the rules of the common law relating to liability for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying on to a public road is hereby abolished.”
Counsel for the plaintiff further submitted that as there has been no reported decision either in the Circuit or High Court on the Animals Act, 1985, he was obliged to refer to an article in the Gazette of the Incorporated Law Society of Ireland July/August, 1988, dealing with the only reported case on the matter by District Justice Patrick J. Brennan in District No. 3 who saw s. 2, sub-s. 1 of the Act of 1985 as creating a res ipsa loquitur presumption (see McCaffrey v. Lundy (Swinford District Court, 8th April, 1988)) and who went on to say:
“. . . that where a plaintiff gives evidence of his motor vehicle colliding with animals straying on the highway and is able to identify the owner of the animals, then there is a prima facie case to be answered by the landowner to rebut the presumption of negligence on his part. The burden on the landowner is, of course, not one of strict liability, but it would be necessary for him to prove that he had exercised reasonable care, maintained his fences in stock-proof condition and taken all reasonable steps to ensure that his stock did not stray on to the public highway . . . . In such an example, the burden should shift from the plaintiff because of the impossibility in many situations, of the plaintiff ascertaining the condition of the landowner’s fences, which knowledge is peculiar to the landowner”.
This article having been read and considered by counsel for the defendant the plaintiff went into evidence.
The plaintiff in evidence stated he was driving along the main Castleblayney/Monaghan road on the night in question at about 50 m.p.h. with full headlights on, that when suddenly from his left hand side of the road 8 to 10 cattle darted across the highway into his path, he immediately applied his brakes but failed to avoid a collision with a fresian calf which was thrown up on the bonnet of his motor vehicle on impact but he believed he also struck another animal which continued across the highway with the rest of the animals who disappeared up a laneway which divided the defendant’s lands.
The animal fell from the bonnet of the plaintiff’s motor car when he came to a halt and fell to the ground dead some feet from the plaintiff’s vehicle which had come to a stop on the hard shoulder of the highway. The animal was identified as the defendant’s property by its ear tag and admitted to be so by the defendant’s son who arrived at the scene of the accident some twenty minutes later. A search failed to find the other animals when the gardaà arrived but an examination of the roadside fence and gate of the defendant’s field which was on the right hand side of the highway showed no defects by which the animals escaped. The gate was securely locked by an ordinary sliding bolt. However, the fencing along the laneway was not checked.
A Mr. Burke gave evidence that he observed animals grazing on the side of the highway at the spot where the accident occurred, when he travelled this road an hour earlier that evening. The accident had already taken place when he was returning home at about 10.30 p.m. and he observed the dead animal on the road but saw no other animals at this time.
A garda witness stated that the plaintiff’s car was badly damaged and the fact that the dead animal was the property of the defendant. He further stated that the defendant, who also had arrived at the accident scene, showed him his field on the right hand side of the highway which contained his cattle and that examination of the gate and fencing facing the highway showed they were not defective in any way but that he had not examined the fencing running up the laneway. The garda also stated that the accident occurred on a straight stretch of roadway which measured 25 ft in width and with a hard shoulder of 6 ft on each side with a further grass verge and that the plaintiff’s car was on its correct side of the road on the hard shoulder where the accident had occurred. He further stated that the lands in the area were such as that they required fencing.
This concluded the evidence for the plaintiff and counsel for the defendant applied for a direction on the grounds that no negligence had been established against the defendant. He referred to s. 2 of the Animals Act, 1985, and stated that there was no evidence that the defendant had not taken reasonable care, in that his fences were adequate and that the gate and fencing facing the roadway were sound, unless I was to hold that the doctrine of res ipsa loquitur applied. It was further submitted by Mr. Hanratty that while Mullen v. Quinnsworth Ltd. [1990] 1 I.R. 59 permitted a plaintiff to raise the doctrine of res ipsa loquiturwithout expressly pleading the same, it had not altered the doctrine and that in this case, it was possible that some stranger could have left the gate on the defendant’s field open and this could explain and show how the accident could have happened without negligence on the part of the defendant and therefore the doctrine would not apply.
I am most surprised that there is no reported decision in this important issue of straying livestock and I hold that the Animals Act, 1985, has changed the law in this matter. The change which this Act has brought about was long overdue and I refer to the doctrine of res ipsa loquitur as stated by Erle, C.J. as hereinbefore stated. District Justice Patrick J. Brennan was absolutely correct in his view of the law as above stated on the matter. Cattle properly managed should not wander on the road and therefore the burden of proof in this case shifts to the defendant to show that he took reasonable care of his animals. I believe that there is no matter more appropriate for the application of the doctrine of res ipsa loquitur than cattle wandering on the highway.
The defendant then gave evidence that he had passed the accident spot just prior to the accident and there were no cattle on the roadway and that all his cattle were then in his field. He had examined his gates and fences and they were in sound condition and could give no explanation as to how his animals escaped from and returned to, his field and he believes that it was only the dead calf which had escaped.
The defendant’s son Eamonn corroborated his father’s evidence and a neighbour gave evidence that his lands adjoin those of the defendant and in 10 years the defendant’s cattle had never broken into his land and he had never known of the defendant’s cattle being on the road in that period either. This concluded the evidence for the defence.
I hold the following facts proved on the balance of probabilities.
(1) That the plaintiff had been travelling on the highway towards Castleblayney when the accident occurred.
(2) That there were 8 to 10 animals straying on the side of the highway.
(3) That the animals were observed by Mr. Burke earlier in the evening on the side of the road at the accident spot.
(4) That 1 calf was killed when it collided with the plaintiff’s motor vehicle which was badly damaged.
(5) That the rest of the animals ran across the roadway and up the laneway which divides the defendant’s lands.
(6) The defendant was the owner of the animals in question.
(7) That the onus of proof shifts to the defendant in these particular circumstances.
(8) That the defendant failed to discharge the onus of proof that his fencing on this field was not defective in that his cattle escaped from and returned to this field on this occasion.
(9) That it was highly improbable that some stranger opened the gate of this field and remained there, until the animals at their leisure returned, and he then closed it. I will allow the plaintiff’s appeal and award him the damages claimed in his civil bill.
O’Shea v Tilman Anhold and Horse Holiday Farm Ltd.
3rd day of October 1996
‘Flaherty J.
On the 2nd January, 1990 the plaintiff was driving his motor car on the public road at Moneygold, Cliffoney, Co. Sligo, travelling from Bundoran in the direction of Sligo, when he collided with a horse which was owned by the second-named defendants. While it appears that the first-named deendant, Tilman Anhold, had a controlling interest III the second-named defendant company, it came to be accepted in the course of the trial that the horse in question was owned not by him but by the defendant company. The plaintiff sustained quite serious injuries.
In his judgment delivered on the 26th April, 1994, Costello J. (as he then was) found in favour of the plaintiff; he found that the second-named defendants were negligent; that there was no contributory negligence on the part of the
plaintiff and the judge awarded a sum In damages for the InJunes that the plaintiff had sustained. The defendants appeal.
At the outset, Mr. Nugent S.C., for the appellants, submitted that even if there was negligence on the part of the defendants (which, of course, he disputed) there should, nonetheless, have been a finding of contributory negligence against the plaintiff. I disagree. Here was a man driving his motor car along a busy highway, on a dark night, on dimmed headlights, and out of the blue a horse crashes onto the roof of his car. Mr. Fergus O’Hagan S.C., for the plaintiff, has said that this horse resembled Pegasus, the winged horse of Greek mythology, in performing such a feat and, he asks: how was the plaintiff expected to cope with that? There IS certainly substance in this submission. So, in my judgment, there was no negligence on the plaintiff’s part. But, from the plaintiff’s perspective, he still has to prove negligence on the defendants’ part. Was there such negligence?
The first-named defendant, Tilman Anhold, gave evidence that he had purchased the lands adjacent to the highway from which the horse strayed in or about 1984. He runs a holiday company. This is the second-named defendant company. The horses are the only assets of the company. There were four horses in the field at the time. Mr. Anhold fed the horses on the evening of the accident at about 4.30pm. The horses were in a concrete portion between two gates when they were fed. The gate leading into the field was open. He left the horses on the concr.ete portion. He walked out through the roadside gate and closed it. The gate was spring-loaded. He had to lift up the gate and only then could the bolt be moved freely. He was sure that he had closed the gate.
Mr. Anhold said that he was involved with horses for the past twenty five years. Previously he had a horse removed from his lands. Dr. Joe Hart, an agricultural consultant, gave evidence that he was satisfied that the fencing was adequate for ordinary commercial horse purposes. He said that the horse would not itself have got out. It would not jump over the wall onto the road. On the public road, the horse would have been in a panic and would behave differently. He believed that someone must have let it out onto the road. In a similar vem, Mr. Ray Gallagher, an equestrian expert, testified that the only way that the horse would get out was for somebody to have opened the gate. While he agreed that a horse could jump from three to seven feet, he said he would be surprised if a horse would do so without being urged or forced.
Section 2(1) of the Animals Act, 1985, provides:- So much of the rules of the common law relating to liability for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying on to a public road is hereby abolished.
The” rules of the common law” are well summarised for our present purposes in the decision of the House of Lords in Searle. v. Wallbank [1947] A.C. 341. For example, Lord du Parcq, in the course of his speech in that case said, at
p. 361:-
“Counsel disclaimed any suggestion that the respondent was bound to maintain a fence, and he recognised that for centuries both the law and the general sense of thecommunity have sanctioned the depasturing of cattle on unfenced land. He contended, however, that one who keeps his cattle on land adjoining the highway behind an apparently secure fence must see to it that it is in fact secure, for otherwise (he said) a deceptive feeling of safety will be induced in the passing cyclist or motorist. My Lords, I should have thought that, on principle, where there is no duty to maintain a fence at all, it cannot be a breach of duty to maintain one which is imperfect. But, however that may be, the argument takes little account of rural conditions. A stray horse, even if it has come from the nearest field and not from one a mile or more away, may have escaped, not through a gap in the fence, but through a gate left open by a trespasser. Moreover, the suggested duty could only be to take rasonable care to maintain a reasonably secure fence, and it must be a very high fence which a horse cannot jump; indeed, we have it on the authority of Byles J. that, in or about the year 1858, it was proved that a bull had leaped over an iron fence six feet high (Bessant .v. Great Western Ry. Co. [(1860) 8CB (N.S.) 368,372]. The truth is that, at least on country roads and in market towns, users of the highway, including cyclists and motorists, must be prepared to meet from time to time a stray horse or cow, just as they must expect to encounter a herd of cattle in the care of a drover. An underlying principle of the law of the highway is that all those lawfully using the highway, or land adjacent to it, must show mutual respect and forbearance. The motorist must put up with the farmer’s cattle: the farmer must endure the motorist.”
The position as recounted in Searle. v. Wallbank also represented the law in Ireland: see McMahon and Binchy, The Irish Law a/Torts (2nd ed.) pp. 518 – 521 and the cases cited therein. But then the legislature stepped in to change the law. This was a recognition, no doubt, that pub Iic roads had got much busier with the increase in motor traffic and so, from everyone’s point of view, it was best to impose a duty on landowners to provide proper fencing adjacent
to the highway to prevent animals from straying thereon except where “the land is situated in an area where fencing IS not customary” (see s. 2(2) of the Animals Act, 1985).
The trial judge was faced with “the question: in the circumstances, were the owners of the horse liable to the plaintiff? He concluded:-
“The situation was that either the fencing on the laneway or field was inadequate or someone had opened the gate, let out one horse and closed the gate again. On balance the first possibility was much more likely than the second. The problem of fencing is a difficult one and the defendant was unable to discharge the onus of proof on it. The plaintiff has shown a breach of duty. There was no contributory negligence on the part of the plaintiff.”
There is no doubt that having regard to the statutory provision an onus rested on the defendants to show that they had taken reasonable care;’nonetheless, that is the extent of the burden that rested on them. They disproved any negligence on their part through the evidence of their expert witnesses that the fencing was adequate, which testimony was not contradicted by the plaintiff’s engineer. They were not required to take the further step of proving how the animal came to be on the highway: whether through the act of a trespasser or however. The most that is required of a defendant in this situation where the onus of proof rests on him is to disprove any negligence on his part: cf. Lindsay .v. Mid-Western Health Board [1993] 2 IR 147. It is not as if this was a case of strict or absolute liability. The learned trial judge approached the matter on the basis that one possibility was more likely than another; however, that was not the proper frame In which to resolve the problem that was presented to him. The trial judge’s essential task was to decide whether reasonable care had been taken by the owners of the horse in the circumstances of the case, as required by the Act. The judge, in effect, went close to imposing strict liability on the defendants. This is to go too far.
–
Legislation enacted in the future may provide for strict liability dispensing with the necessity to prove negligence, but that is not now the law. In any event, as between the two possibilities, I would regard thepossibility that someone opened the gate and let the horse out as less unlikely than that the horse cleared the fencing.In the circumstances, I would allow the appeal.
Keane J.
…..
The facts have been summarised in the judgment of O’Flaherty J. and
Until the enactment of the Animals Act 1985, Irish courts applied, with reservations, it is to be said, in some cases, the law as laid down in England by the House of Lords in Searle v. Wallbank, [1947] AC 341. In that case, it had been held that the owner of animals which strayed on to the highway was not liable for damage which they caused. There were qualifications to that general legal principle which need not detain us, since the principle itself was repealed by statute in this jurisqiction by s.2 of the Animals Act 1985. Subsection (l) provides that
“so much of the rules of the common law relating to liability for negligence as excludes or restricts the duty which a person might owe toothers to take such care as is reasonable to see that damage is not caused –
by an animal straying on to a public road is hereby abolished.”
In the present case, it was accepted that the horse which collided with the Plaintiff’s motor car was the property of the second named Defendants and had escaped, in some fashion, from the first named Defendant’s land on to the highway. Although counsel for the Defendants was reluctant to concede the point, it seems clear that at that stage, as the trial judge ruled, the onus shifted to the Defendants to prove, on the balance of probabilities, that they had taken
such care as was reasonable to see that damage was not caused by horses escaping from the land on to the public road. This would seem to be a case in which the res ipsa loquitur principle clearly applies.
In Scott v. London and St. Katherine Docks Company, 3 HNC 596 Erle C.l. said:
“There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the Defendant or his servants, and the accident is such as in the ordinary circumstances does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the Defendants, that the accident arose from want of care.”
.
(I have used that classic formulation rather than the recent restatement of the doctrine by this court in Hanrahan v. Merck Sharpe & Dohme (Ireland) Limited, [1988] ILRM 629 which has been criticised and may need to be reconsidered at some stage. {See, for example, McMahon & Binchy on the Irish Law of Torts [2nd Edition], at p.p. 142 to 144.}) In the present case, the Defendants were the persons who brought thehorse into the field adjoining the highway and provided such fences and gates as were there. Matters were, accordingly, essentially under their control and the first element of res ipsa loquitur is present. As to the next requirement -that the accident was such as in ordinary circumstances does not happen if those who have the management use proper care – it is self evident that a horse will not normally escape from lands on to the public road if adequate fencing is provided and any gates are kept in a closed position. At close of the Plaintiff’s case, there was, accordingly, reasonable evidence, in the absence of explanation by the Def~ndants, that the accident arose from their want of care.
I am, accordingly, satisfied that the trial judge was correct in refusing to accede to the application for a non-suit made on behalf of the Defendants.
As we have seen, however, an explanation was offered by the Defendants. The evidence both of the first named Defendant and the experts called on his behalf was that all the standard precautions in the way of fencing and gates had been taken by the first named Defendant to ensure that horses did not stray from the land on to the road. In addition, the first named Defendant gave evidence, which the trial judge appears to have accepted, that, having fedthe horses in the feeding area, he then left the gate into the field open and closed the gate leading from the feeding area into the public road. The explanation offered by him as to how the accident happened was that someone had opened the gate and allowed the horse to get on to the road.
The trial judge considered it more likely that the fencing was “inadequate” and, accordingly, he found that the Defendants had been negligent.There is, with respect, a lacuna in this reasoning. Even if the trial judge was satisfied as a matter of probability that the horse had managed in some fashion to surmount the obstacle presented by the fencing, it would not necessarily follow that this was due to any want of reasonable care on the part of the Defendants. If. it were the case that the Defendants had taken all the precautions which a reasonable person in their position ought to have taken to prevent the horse escaping, then the fact that the horse succeeded in getting on to the road was not the result of any negligence on their part.
As to whether the Defendants had taken all the steps which a reasonable person in their position would have taken, the evidence before the trial judge was all to the same effect. Two experts, whose qualifications were not challenged, gave evidence that the fencing was adequate for its purpose and that they would be surprised if any of the horses in the field either attempted to jump over it or succeeded in jumping over it on to the road. They never resiled from that evidence and there was no evidence to suggest that they were wrong in that view. On the contrary, the experienced accident engineer who gave evidence on behalf of the Plaintiff notably refrained from expressing any viewas to the adequacy of the fencing. Section 2 of the Animals Act 1985 has abolished the somewhat anomalous immunity from the ordinary law of negligence which the owners of land from which animals strayed on to the highway previously enjoyed. It has
not, however, imposed any form of absolute liability on such persons. To hold the Defendants liable for negligence in the circumstances of this case where the admitted evidence was that they had taken all the precautions which a reasonable person wO!Jld take to prevent the particular animals, a herd of horses, from straying on to the road, would be to impose a higher duty than the duty “to take such care as is reasonable” recognised by the Oireachtas as
applying to such persons.I would also allow the appeal.
Murray v Millar and Brady
20 Ir L Times (ns) 252 Circuit Court Judge McMahon (14 November 2001)
The facts
Mr Paul Brady, an employee of the Department of Agriculture and the third defendant, was driving home on the evening in question when he was suddenly confronted by a black pedigree cow which jumped out in front of his car from the left-hand side of the road. Brady immediately braked, but failed to avoid a collision. After hitting the cow, he pulled into his own side of the road, turned his lights to dims, put on his hazard lights and went back to see what he had hit.
In his evidence, Mr Brady said that he saw the animal lying on the grass margin at the side of the road and, as he saw no movement from the animal, he concluded that she was dead. Aware of the hazard that this represented, Mr Brady attempted to flag down the passing cars. Unfortunately, good Samaritans were not much in evidence on that evening, and at least six to eight cars passed without stopping. Naturally, Mr Brady became concerned as the traffic was increasing and the evening was getting darker. Eventually, a small car pulled up and with some trepidation an elderly lady rolled down the window. Mr Brady enquired if she would phone the Garda, but she said that she did not have a mobile-phone. It became clear that the lady was somewhat reluctant to become involved, and Mr Brady did not want to insist since she was somewhat apprehensive. She did indicate, however, that there was a house some three to four hundred yards further up the road from which Mr Brady could make a call. She then drove off.
Mr Brady then found himself in a predicament. Having waited for a further period he decided that he would leave the scene and drive up to the house to phone for help. He considered this to be the best course of action in the circumstances. When he returned some ten minutes later, having made the phone call to the Garda station, he learned that the plaintiff, Mr Murray, had also collided with the animal while he was away. Mr Brady was a credible witness and I accept in general his version of events. In one respect,lights for an oncoming car. It was then that he hit something, low to the left hand side of
his car. The plaintiff said that he had just got out of the car and had walked back when the Garda came on the scene. The Garda, who had been out patrolling in the squad-car, was responding to an earlier call from the Garda station. Some minutes later, Mr Brady, the third defendant, returned to the scene to find that a further collision had taken place
in his absence.
The first named defendant, Marven Miller, gave evidence to the effect that his wife wned the dead cow and that the animal was kept in a field which Mr Miller rented fora number of years, and which at the tine, held only two animals. Mr Miller said that he never had any previous trouble with the fencing of the field and that he used to keep horses there at one time, but not at the time of this incident. The field in which the animals were kept does not immediately adjoin the road, but is one field further back from the highway. Mr Miller admitted that since the animal ended up on the road she must have broken out from his field into his neighbour’s field and then onto the road. Mr Miller gave no evidence that his field was stock-proof. Neither did he offer any photographic evidence of the fences, nor did he offer any engineering evidence. He was of the understanding, however, that the field was very safe and that the animal was ina secure holding.
The law
At common law, there was immunity from liability for damage caused by animals that strayed on the highway. This immunity was expressly abolished by the Animals Act
1985 . Specifically, s 2 of the Act declares that:
“so much of the rules of the common law relating to liability for negligence as excludes or restricts the duty whicha person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying ontoa public road, is hereby
abolished.”
The effect of this statutory provision is that reasonable care must now be taken to ensure that animals do not stray onto the highway and cause damage thereon. This normally translates into an obligation to ensure that the land is stock-proofed and that the fencing is sufficient to prevent animals from breaking out. Moreover, in relation to proof, the case law indicates that the onus of proof, that the land was properly fenced, is now on the
landowner or the owner of the animal who seeks to evade liability. In O’Reillyv Lavelle ([1990]2 IR 372) and again in O’Shea v Anhold and Horse Holiday Farm Ltd (unreported Supreme Court, October 23, 1996) the courts in this jurisdiction have clearly accepted that the principle of res ipsa loquitur applies to these situations. Accordingly, in cases such as the present, to escape liability, the first and second defendants must provide the evidence to show that they took reasonable care in the management of the land to ensure that the fencing was secure. As already mentioned, the first and second defendants in this case tendered no significant evidence in this regard,and on this ground,I have little hesitation in holding them liable for the damage which their straying animal caused to the plaintiff.
Recognising this to be the position, counsel for the first and second defendants advanced more vigorously another argument, namely, that the subsequent conduct of the third defendant was such that it relieved them of any liability they may have had for their initial negligence in failing to stock-proof the fields. In effect, they argued that, even if they were negligent initially, the force of their negligence was spent, and had become irrelevant, because of the subsequent conduct of the third defendant. In short, they argue that the sole cause of the plaintiff’s injury was the third defendant’s conduct in leaving pulnaginutairfdf.ed the injured animal which was a hazard to other traffic, and in particular to the
This argument brings us into contact with the defence of novus actus interveniens. This defence means that in some circumstances the causal link between the original negligence( of the first and second defendant in this case) and the plaintiff’s injury, is broken by an intervening act, frequently that of a third party( the third defendant in this case). It is not every intervening act, however, that will have the effect, in law, of rupturing the chain that links the initial negligence with the ulterior injury such as that of the plaintiff herein. Only some kind of acts have this legal effect. Although the courts, for many years, have tried to define the nature and the quality of the intervening act if it
is to have this disruptive effect in law, their efforts in this regard have not proved to bea total success.
The Latin phrase usually used by lawyers to describe the situation when the intervening act relieves the original actor, ie, novus actus interveniens, is of course an insufficient abbreviation to indicate the legal consequences when the principle comes into play. Lawyers frequently say, in a shorthand and misleading way, that the defendant is not liable because ofa novus actus interveniens, as if any intervening act will have this disruptive effect. Nothing could be further from the truth. It is only some intervening acts that possess this disruptive quality. In so far as the three Latin words novus actus interveniens are intended to describe the circumstances when it will provide the original wrongdoer witha full defence, it should more meaningfully translate as an intervening act which is of sucha kind that it attracts sole liability for the plaintiff’s injury or is of sucha kind that it becomes the sole legal cause of the plaintiff’s injuries.
In these circumstances, we should first ask what is the general nature of the intervening act if it is to have this effect in these types of cases.
It can be said with some confidence that if the intervening act is predictable and inevitable, the original actor cannot shrug off responsibility since he practically programmed the intervention. [See Scott v Shepherd (1773) 2 Wm Bl 892.] In this case it can be truly said that the third party’s act is not voluntary or independent. Similarly, if the original actor intended the intervention he will be responsible. At the other end of the scale, however, it is equally clear that, ifhe could not reasonably foresee any intervening act, after his initial action, then he will not be responsible for the unpredictable intervention. [Citing Salmond and Houston on the Law of Torts, 21st ed 521. LambvCamden LBC [1981] QB 625; Muldoon v Ireland and AG [1988] ILRM 367 and Perl (Exporters) Ltd v Camden LBC [1983] 3 All ER 161.] In between these two extremes, the courts have been less sure-footed in defining when the intervening act will in effect hijack the causal element and erase the significance of the original wrong. The courts prefer to determine each case on its own facts. In examining the circumstances where the intervening act will have the effect of relieving the original perpetrator, two factors feature in the judges’ approach: first, whether, and to what extent the intervening act was foreseeable by the original actor, and second, how does one characterise the attitude of the subsequent intervenor – was he careless, negligent, grossly negligent, reckless or, did he intend to do damage? … If the intention of the intervenor can be properly characterised as being criminal or subjectively reckless, then it is likely (though not inevitable) that it would have the effect of breaking the chain that leads back to the initial wrongdoer. [Citing Conole v Redbank Oyster [1976] IR 191, and Winfield and Jolowicz on Tort, 15th ed, 1998, 226.] Where the conduct of the intervenor does not invite such opprobrium, however, the courts are not inclined to exonerate the first act, of all causative relevance. A third factor should also be noted: the greater the delay there is between the original conduct and the intervening act the more likely is the latter to be considered as the sole operative cause. [See Crowley v AIB and O’Flynn [1988] ILRM 225 where the failure by the first defendant constituted a novus actus interveniens.] If on the other hand, the intervening act is close in time to the original act the courts are more likely to say that the original conduct still possesses a causative relevance. The temporal proximity of the two acts to each other, therefore, is frequently relevant, although, in truth, it is only one of several factors which the courts will consider in coming to a conclusion.
Working from these principles, which are extracted from the case law, it is necessary now to examine the nature of the third defendant’s act to see if it possesses the necessary qualities to have the effect in the present case of rupturing the chain of causation back to the first and second defendants.
The case before the court is not particularly difficult to resolve since it is clear that the original wrongdoers could reasonably foresee the kind of intervention that occurred; moreover, the intervenor’s act was not unreasonable in the circumstances. In fact, in the present case, the liability of the first and second defendants is so clear that it could be rationalised in terms of their duty of care (or the risk they created) in terms of remoteness or, as was argued here, in terms of causal principles. In a different and more difficult fact pattern, one might have to embark on a deeper analysis of the degree of foreseeability required, the nature and quality of the intervening act, and even then it might not be possible to avoid resort to policy considerations in coming to a just decision. But not here.
In the present case, the cause of the initial collision was the failure of the first and second defendants to keep the animal safely corralled. Undoubtedly, on the evidence before this court, these defendants will be liable to the third defendant for his injury suffered in the first collision. This liability to Mr Brady (the third defendant) was not in issue in these proceedings, however, and because of that no evidence was adduced in this case that the third defendant had in any way contributed to his own injury. The sole concern of this court is to determine if the conduct of Mr Brady relieved the other defendants of their liability to the plaintiff.
When Mr Brady hit the cow, he pulled into his own side of the road put on his dims and hazard lights and walked back to the point of impact. The animal was motionless and he wrongly concluded that it was dead. He appreciated the danger and he began to flag down the passing traffic. He had little success and the one car that did stop was not too helpful. He began to consider his options. Having considered the matter further, he decided to go for help to a house which was no more than four hundred yards away. Ifhe took the car he would only be gone for a few minutes. In the circumstances was this conduct negligent, grossly negligent or reckless? Was it of such a kind that it relieved the original wrongdoers? Further, in considering the matter it must be relevant to acknowledge that the predicament in which he found himself was caused by the very people who now want to place the liability on him.
The first and second defendants, must have foreseen that if their cow escaped onto the road it was likely to cause an accident and that more than one vehicle might eventually become involved. In general, therefore, these defendants should be liable for all the reasonable foreseeable consequences of their initial negligence. Clearly, once a collision has taken place, a new sequence of events unfolds, involving the first driver (most likely), other motorists (probably) and rescuers (possibly). Provided the responses of such unwilling participants are not unreasonable guaged in the light of the emergency in which they find themselves, they will be rightly attributed to the original wrongdoers. Should the first and second defendants be relieved from liability by the act or omission of the third defendant in the present circumstances? In my opinion, the conduct of the third defendant, does not in the present circumstances possess such defective qualities as to wrest responsibility entirely from the original perpetrators. As I have already said, the conduct of the third defendant given the emergency the other defendants created for him was certainly not criminal or subjectively reckless as the case law seems to demand ifit is to amount to a novus actus interveniens which breaks the link back to the other defendants That a car might collide with the straying cow in the dark was foreseeable, and that a further collision might occur when the first parties injured were seeking assistance, was also foreseeable. To allocate liability to the original actors it is not of course necessary that they should foresee exactly the sequence of events that would follow from their initial negligence. In my view the general sequence of events was reasonably foreseeable by a reasonably prudent person, and the conduct of the intervenor was not so unreasonable or of such a nature as to hijack the causative aspect of the second collision. The first and second defendants must compensate the plaintiff for his loss. Moreover, from the facts of this case I have no hesitation in saying that the straying animal was the sole cause of the accident.
Gillick v O’Reilly
[1984] ILRM 402 McWilliam J:
It has long been a principle of the common law in England that there is no breach of duty to anyone in permitting domestic animals to stray on to the public road. Modern cases are those of Heaths Garage Ltd v Hodges [1916]2 KB3 70 which was referred to with approval by Maguire Pin Gibb v Comerford [1942] IR 295,a case concerninga dog which ran out from the defendant’s premises, and Searlev Wallbank [1947] AC 341 in which Viscount Maugham tried to trace the origin of the rule from the
thirteenth century onwards. At page 353 he stated:
“No facts, in my opinion, have been established which would tend to show that farmers and others at some uncertain date in our lifetime became subject for the first time to an onerous and undefined duty to cyclists and motorists and others which never previously existed. The fact that the duty does not exist if the road is unenclosed by fences and yet that accidents are rare is, I think, strong to show that the respondent was not bound asa reasonable man to think that his failure to fill up a gap in his fence was likely to cause such
an accident as the one which took place.”
Lord Porter said at page 356:
“If one comes to the later cases the whole tendency of the decisions is against imposing any liability to fence in ordinary circumstances. Hadwell v Righton [1907]2 KB 345: Higginsv Searle 100 LT 280: Ellis v Banyard (1911) 106 LT 51: and Jonesv Lee 106 LT 123 all show this tendency though in none of them was the exact point decided as negligence was negatived, and in Ellis v Banyard, Vaughan Williams and Kennedy, JJ were careful to guard themselves against deciding that cattle if allowed to escape in large numbers and obstruct the highway could not cause a public nuisance.”
With regard to this careful guarding reservation it is relevant to refer to the case of
Cunninghamv Whelan (1918) 52 ILTR 67 in which Moloney LJ, having referred to most of the cases mentioned said, at page 68:
“It is,I think, clear that while in ordinary circumstances an owner is not bound to prevent his cattle or other domestic animals from straying on the highway, he is bound to use such care or caution that they will not stray in such numbers so as to render the highway positively unsafe or dangerous to those who use it. If he omits to do so, and allows his cattle to wander and be there, it is a breach of duty on his part, and that if that breach is the approximate (sic) cause, he is liable.”
In the Heath Garage case Pickford J, referring to the reservation by Vaughan Williams and Kennedy JJ mentioned subsequently by Lord Maugham, said at page 381 “it is difficult to see, if there is liability for an obstruction, how there is any difference between its being caused by many or by few”. This observation would appear to apply with equal force to the decision in Cunningham case.
I am somewhat unhappy about the passage from the judgment of Viscount Maugham whichI have cited. It seems to me that, in each age, circumstances arise, different from those of previous ages, which entail that acting or failing to act in the way in whicha reasonable man might be expected to act constitutes a breach of duty to others. In determining negligence, the circumstances must be considered in each case so that there cannot be any hard and fast rule governing all cases. I am of opinion that this applies equally to the consideration of the liability for negligence with regard to animals wandering on the public road. An unfenced road running through rough mountain pasture gives rise to different considerations from those arising ona modern main motor road running through fenced farm land and I cannot see any logical reason fora principle which ignores the entirely different circumstances of each when considering the duty owed to users of the road.
O’Brien v Derwin
[2009] IEHC 2
JUDGMENT of Mr. Justice Charleton delivered on the 14th day of January, 2009
1. The plaintiff John O’Brien is a carpenter. On the 21st October, 1998, he drove in his van from his home, midway between Athlone and Moate, to Athlone. There, he picked up his son Dominic from his work at the MSL factory and drove back on the N6 roadway in the direction of Moate. The evening was damp, though it was not pouring rain. Nothing is to be inferred in this case from the timings, but it is as well to record that since his son left the factory after a shift that ended at 8.00pm, that they were probably in the vicinity of the landfill site operated by Westmeath County Council beside the N6 somewhat around 8.15pm. The evening was then particularly dark. John O’Brien had no memory of the accident that then happened. His son Dominic, however, described it. He remembers a very dark night and that both he and his father were wearing seatbelts. As this is a good straight road, now less used because of the opening of the M6 motorway, they were travelling quite fast, though not excessively. They were about 7 kilometres from Athlone. Suddenly, he saw horses pass by on his father’s side of the road. He said “horses”. Before there was any time to react there was a bang. The windscreen came in, a huge impact. There was an awful smell. There was another impact and their vehicle halted by colliding with a concrete fence post. Both he and his father were covered in blood. He tried to take his father’s hand, but it came away. As it turned out, this was a lump of horse flesh. There was an injured horse beside the road and a dead one in the middle of it. The plaintiff’s son called an ambulance for his father. He was brought to Portiuncula hospital. He was seriously injured having suffered brain damage in the collision.
2. The first named defendant is the owner of lands adjoining the N6 which are situated a little under 1.5 kilometres from the scene of the accident. The second named defendant, now deceased, is his father. At all material times they were both involved in horse buying and selling. About 20 to 40 horses were kept by them on the land of the first named defendant beside the N6, and in other places other members of the family had further land and kept further horses. The second named defendant also owned land in nearby places, where horses were kept. He is now dead and is represented in this action, pursuant to a court order, by a solicitor. The second named defendant played no part in defending these proceedings. Among the land that he owned or used was a property within about two kilometres of the accident site on the N6 off that roadway and down a side road in an area called Glen Wood.
Issue
3. Both defendants deny that they had anything to do with the collision between the plaintiff and the horses on the N6 roadway. The issue in this case is whether the plaintiff has proved as a probability that the horses were owned and controlled by one, or other, or both of them and that the manner of the keeping of the horses by the defendants was negligent so that they escaped onto the highway, thereby causing the accident.
4. This case is to be decided on the balance of probabilities. Various cases have been cited by counsel. From these, I am satisfied that there are only two standards of proof that are applicable in judicial determinations. The beyond reasonable doubt standard is that which the prosecution is required to meet in criminal cases. The probability standard is that which applies in civil cases. I note, as well, from the judgments that have been cited, that is important for this Court not to glibly reach a conclusion that may involve a determination of serious wrongdoing against a defendant. To this end, during the hearing of this case, I visited and walked all of the locations that are relevant to this judgment.
5. In Miller v. Minister of Pensions [1947] 2 All E.R. 372, Denning J. said this about the standard of proof in civil cases:-
“…[T]he degree of cogency…required to discharge a burden in a civil case…is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say: ‘we think it is more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.”
6. Where the circumstances of the case are such that the available evidence is so scanty as to render it impossible to reach a definite conclusion one way or the other, the party to suffer from this state of affairs must be the one on whom the general burden of proof lies, namely the plaintiff; Wakelin v. London and South Western Railway (1886) 12 App. CAS. 41 and see Jones v. Great Western Railway (1930) 144 L.T. 194.
7. Section 2 of the Animals Act 1985, reversed the rule in Searle v. Wallbank [1947] A.C. 341. This gave immunity from negligence principles where damage is caused by animals that strayed onto the highway. The 1985 Act provides at s. 2(1):-
“So much of the rules of the common law relating to liability for negligence as excludes or restricts the duty with which a person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying on the public road is hereby abolished.”
8. An exception arises where a roadway runs through an area where fencing is not customary, as in commonage. It does not apply here. In O’Shea v. Anhold and Horse Holiday Farm Limited (Unreported, Supreme Court, 23rd October, 1996) it was held to be self evident that a horse will not normally escape from its pasture and onto the public highway if the gates are closed and the fencing is maintained in an adequate condition. In O’Reilly v. Lavelle [1990] 2 I.R. 372, Johnson J. held that where cattle trespass on the roadway a plaintiff is entitled to rely on the doctrine of res ipsa loquitur, meaning that the facts themselves imply negligence, stating:-
“Cattle properly managed should not wander on the road and therefore the burden of proof in this case shifts to the defendant to show that he took reasonable care of his animals. I believe that there is no matter more appropriate for the application of the doctrine of res ipsa loquitur than cattle wandering on the highway.”
9. I take judicial notice of the fact that cattle are required by law to wear ear tags and that the identification of their ownership is thereby rendered easy. Horses are not so easily identifiable. They are individuals and unlike most cattle are usually given names. Some of them have a microchip inserted in their flank which gives an identification number so their breeding and jumping record, together with ownership details, can be checked against data held by the Show Jumping Association of Ireland. I will return to this point.
10. Had it been the case that the issue for determination here was the adequacy of the fencing of horses, the case could be easily resolved. Instead, the ownership of the wandering horses was strongly contested. No one claimed the injured horse, which was a fine animal, and ownership of the dead horse was specifically rejected at the time of the accident by the second named defendant, probably in the company of one of his sons, either the first named defendant or his brother.
11. I am satisfied from the treatment of this issue in McMahon and Binchy Law of Torts (3rd Ed. Dublin, 2000) at paras. 27.42 – 27.66, that to succeed the plaintiff is required to prove that one or other of the defendants, or both of them, had responsibility for these horses, in that they kept them under their control on their lands, and that they were negligent in allowing them to stray on the public highway.
Circumstantial Evidence
12. The law in relation to circumstantial evidence as it applies in criminal cases is well known. Circumstantial evidence can be the best that the nature of a case admits, but it is no less than evidence from the direct assertion of a witness; it can be more reliable. The duty of the court or the jury in a criminal trial is to examine that evidence piece by piece and to see whether each piece of evidence is proved beyond reasonable doubt. The evidence of an accomplice must be examined in the light of corroborating evidence. Independent evidence tending to show the accused committed the crime is examined before looking at what the accomplice asserts in the light of such corroboration, or bearing in mind the special warning on the dangers of relying on the evidence of an accomplice when it is not corroborated, in its absence. Such pieces of evidence as have been proven are then to be analysed together and the question is to be asked as to whether that evidence proves the guilt of the accused to the requisite standard and is inconsistent with any other rational hypothesis that may be based on the same set of circumstances. In every case, criminal or civil, the court of fact looks at every piece of evidence in the light of what other testimony supports it or undermines it or qualifies it and considers it with shrewdness and common sense. In applying circumstantial evidence in a civil case, the duty of the court is to look at each particular piece of evidence in isolation first of all. The court must ask itself the question as to whether that evidence has been proven as being probable. For instance, I have to decide on an individual basis whether a fence post was probably missing from the first named defendant’s field by the N6 on the day after this accident. I am then obliged to take all of these pieces of evidence that have been proven as a probability, and to put them together and to judge the issue as to whether the horses came from under the possession and control of one or other of the defendants, or both of them, by considering each piece of evidence in the light of every other piece of evidence that I find proved. If at the end of that analysis it is probable that the horses which caused this accident are the responsibility of the defendants, and there is no other probable scenario that is based on the same set of circumstances, which would thereby nullify that finding, the plaintiff succeeds.
13. I, therefore, turn to these circumstances.
Evidence
14. The plaintiff’s son Dominic was clearly in a state of shock on the day of the accident. He gave evidence that on the next day he went out with his brother to look at the first named defendant’s field beside the N6. This is a large field, with access to other fields. He was cross examined on this evidence and conceded that he could remember little after ten years and as to whether he had visited the field that day, or within a few days. I am satisfied on the balance of probabilities that Dominic O’Brien went the day after the accident to the field owned by the first named defendant on the N6. It is named after its previous owner, the Allen family, and for convenience I will call it Allen’s field. The reason I am so satisfied is that rumours were circulating at the scene of the accident that the horses which had caused it were owned by the Derwins. Although he was shocked, given that his father was now in hospital with serious injury, he and his family were under an imperative to attempt to ascribe responsibility. I regard it as highly unlikely that he would have spent the next day, or the next few days, simply sitting around. He did not impress me as that kind of person. He took photographs at this field. Separating it from the N6, there was a concrete post and palling fence and then a grass verge, less than 2 meters wide. One palling was down. He measured the height of the fence on the inside and outside, and took photographs. Two days later he revisited the field and the fence was still down. On the evidence, this field was a place where horses were always kept but on these two days on which he visited, there were no horses to be seen. On the 7th November, he visited the place again, together with his mother and took further photographs. The fence had been put back up and horses were visible. He could not recall if there were hoof prints in the vicinity of the broken fence the day after the accident, though he conceded that if there were obvious hoof prints he probably would have photographed them. Some few individual hoof prints were photographed on the 7th November, but there is nothing to say that these were referable to any escape of horses on the 21st October. Curiously, four hoof prints never appear in those images, just one two, not a continuity of prints along a line that a horse might have walked. That was one of the reasons making it prudent to inspect the scene.
15. John Watson is an equestrian expert. I prefer his evidence to that of Patrick Maguire, who is also an equestrian expert, and who was called on behalf of the defendants. One crucial issue leads me to prefer the evidence of Mr. Watson to that of Mr. Maguire. Mr. Maguire said that if ten to fifteen horses had escaped across the grass margin beside the N6 near Allen’s field that the effect would be like horses crossing a garden lawn. This is incorrect. Mr. Watson told me that the expectation of hoof prints on the grass margin if the horses walked out depended upon a number of variables, as to whether they were walking or galloping or jumping and the ground conditions. Marks could appear, he said, though there might not be marks because this depended upon the weather and the ground; if there were marks then nature would replace them over time, but over what time Mr. Watson could not say. On the issue of hoof prints, I cannot say as a probability whether these would be bound to be present had the horses escaped over the broken palling at some short time prior to the accident. I have walked this area and inspected it as to its firmness and its vegetation. The area of Allen’s field inside the fence is a bit lower than the grass margin beside the N6. At some places, however, the ground rises up close to the fencing. The drainage is different on both areas. Beside the N6, because of the elevated nature of the ground, the drainage is extremely good at that grass margin. I note that 12.5mm of rain fell on the previous day to this accident with only 3.6mm on the 19th October and 3.3mm on the day of the accident. The ground here obviously drains extremely easily, something apparent from visiting the scene. On the photographs presented, it is also covered with thick grass. This vegetation becomes obvious on walking it. The first named defendant made a mark in the grass by way of a test. I am satisfied that this required considerable force. I am not satisfied that hoof prints would have been obvious on the grass margin on the escape of several horses from this land. Inside the fence, the ground is soggy when there is heavy rain. There the ground marks very easily. That is not so on the outside and when I visited it was a very wet day.
16. I am further satisfied, on the evidence of Mr. Watson, that the fencing, when up, was inadequate and, I am satisfied, that the fencing was down on the day of the accident in at least one significant place beside the N6 allowing the horses to escape. When the fencing was up, the height inside was three feet and ten inches as a maximum. When the top fence paling is down, it is about a foot lower. I accept the evidence of Mr. Watson that in that broken position the fencing was woefully inadequate and that horses can simply walk out of the field. Some of the plaintiff’s later photographs showing a horse beside this defective fence make that obvious. I cannot accept the evidence of Jim Derwin, for the defendants, that a horse would not come out over that broken down palling “even if you put a horse collar on him”. To leave the pasture over this broken down fence a horse does not need to jump. As of the time of the trial, the fence, while still broken, is supplanted with strands of barbed wire. A year after the accident, I am satisfied, it was supplemented by what looks like an electric tape which, from the photographs, given that it passed around wooden, as opposed to plastic, posts did not seem to have a current passed through it. The time of the accident is also significant. As Mr. O’Brien was travelling into Athlone to collect his son, it was around dusk. Perhaps the clouds then quickly closed in, but when he was returning, and when the accident happened, it had become very dark. Mr. Watson told me, and I accept, that horses like to gallop and to wander about at dusk. If one horse were to leave this field, then the herd instinct would tend to bring several others, or certainly those within its group, with it. The position of dominance within the herd of a single wandering horse can also be important.
17. There is a large variability in the evidence as to the number of horses that were seen on the road immediately before and after the accident. In this respect neither the plaintiff nor his son could assist. Coleman Walsh, an experienced bus driver, described ten to fifteen horses galloping up the road. Martin Duffy, in the aftermath of the accident, saw four agitated horses on the roadway and about five others on the grass verge. Kathleen Seary, who got a lift home from the same factory in Athlone as Dominic O’Brien, described seeing two to three horses racing and similar evidence was given by David Nolan, who drove her. Michael Young, a resident of Moate, described four to five horses “flying up” the roadway. In this accident, one horse was killed and one horse was injured. It seems probable, therefore, that a figure of up to ten horses is correct. Two are now accounted for and the other seven or eight simply disappeared. I am satisfied that little can be learned from the times and places these horses were seen. The places ranged from beside Allen’s field to well beyond the county dump. As to where the horses were going, that was purposeless, towards Athlone according to some witnesses and in the direction of Moate according to others. The times of shocking events as testified to by witnesses can be unreliable and are vague here.
18. I am next concerned with the issue as to whether it should be inferred that these horses came from Allen’s field. I am satisfied that the first named defendant owned the relevant land, and that it is registered to him. As owner, his responsibility was to fence it correctly if he wanted to keep horses there. I am satisfied that he, together with his brother and his father kept horses there and that they jointly had responsibility for ensuring that they were properly kept in and fenced in an appropriate manner. Much evidence was presented to the court as to other people in the area who may have had horses. Significantly, the most powerful evidence, in that regard, was that of Gerry Tone. This witness works for Westmeath County Council since 1983, and is a supervisor since 1984. His job includes being called out by the gardaí when animals, meaning horses or cattle, are found wandering on the roadway. This can happen, on his evidence, at a very variable frequency of between once a month and ten times a month. Over the course of the last 25 years or so he could remember only about three accidents where horses were killed. He agreed that different people keep horses in or around Athlone. Having been called to the scene of the accident, a matter to which I will shortly turn, he was interested in ascribing responsibility. The next day he went down the Glen Road about two kilometres from the accident site. Down there, at a location which is now obliterated by the new M6, he found a field with lots of horses in it and which were held in by only one wire. He returned later and he saw two new gates tied across that wire, clearly with a view to keeping in the horses. He could not say if these were the strayed horses. Evidence was given by the first named defendant Francis Derwin, by his brother Jim Derwin and by Patrick Maguire of other people who may have kept horses within a three or four mile radius of this accident. I am satisfied that there were a number of people keeping horses in this area at the time of this accident. I am also satisfied that very few of them, and none that have been positively identified, would have been keeping at least ten horses in one field which might have escaped in one herd. It is also important to consider the quality of the horses.
19. I regard it as impossible, having driven the road, that the horses came from a halting site for Irish Travelling Community members beyond the first roundabout in Athlone. I am satisfied on the entirety of the evidence that the business of the defendants involved buying and selling good quality horses. Whereas the evidence was that over the years they had dealt in every kind of horse, I am satisfied that the predominance of their business was in dealing with good quality horses which were capable of jumping and hunting, whether ponies or larger, and which are generally called sport horses. At the time of the incident the defendants would have kept many horses in that field. I regard it as significant that on two occasions in the immediate aftermath of the accident horses were not present while the fence palling was down. The only evidence as to possession of the land viewed by Mr. Tone, on which there were horses on the day after the accident, is that the second named defendant used that field, but that does not determine the matter one way or another.
20. One horse was killed in this accident. The evidence has been that it was split in two and that its innards were all over the public highway. Mr. Tone had the task of getting a JCB digger, of putting the dead horse in it and of going to the landfill dump nearby to dispose of it. He, more than anyone, had a good look at the remains of this horse. I regard his evidence as being inherently reliable. He described the dead animal as “a fine big horse”. He said that it filled the loader of the JCB. This horse, he said, was “not a piebald, it was one of these nice bay horses”. I am also satisfied that Mr. Tone would have noticed if this horse had the characteristics of a working horse, such as having large hoofs or being thick set and that his description, in that regard, is of assistance.
21. The second horse involved in the accident, but surviving it with multiple cuts, was one called “Knockfune Dasher”. There was much debate as to the identification of this horse but I am satisfied to so identify it. This is also a fine horse, standing just short of 15 hands high. In its flank it carries a microchip which has an identification number 116569125A. The letter refers to the registering authority. At the scene of the accident, Gerry Tone arranged for this horse to be taken for temporary stabling to the premises of Seán Duffy, who lives about three miles from Athlone. It has been there ever since. Since it has not been claimed, Mr. Duffy and his son have bred a number of good foals from it. At the time of the accident they would have had very few horses. Garda P. J. Hoey of Ballinahowen Garda Station, gave evidence that in January, 2004 he went to Duffy’s farm with Olive Manning, a horse warden. Seán Duffy was there and pointed out a horse. Seán Duffy does not remember this. This was scanned for a microchip and, I am satisfied, this identification number was discovered and read and was given by Olive Manning Conroy, an experienced horse and dog warden, to Garda Hoey and thence to Sergeant Michael Shaughnessey who was investigating this incident. All of these are competent people. The relevant number is stored in the Show Jumping Association of Ireland records. I am satisfied on the evidence of Ronan Corrigan, the Chairman, that he personally imputed this number into his computer. His evidence was objected to on the basis he had never done this personally. I am satisfied of his honesty. I am satisfied from the evidence of Ronan Corrigan that there is a system of recording numbers and storing these for the business purposes of horse owners like the first and second named defendants. Anyone seeking information of a registered horse can inspect these through enquiry. I am satisfied that this horse was owned by a man called Eddie O’Connell, and that it was given a points record of success in jumping competition between the 14th February, 1998, and the 17th May, 1998. I am using this evidence only for identity purposes. Significantly, on the 6th June, 1998, a sale took place at Goresbridge horse sales. Eddie O’Connell sold a horse there for the sum of £2,205. Mr. Corrigan valued a horse of this kind at around to €3,000 to €10,000, but indicated that this was a very rough estimate from the information about it, as he had never seen the animal. Only three people in the purchaser’s ledger, out of 23 buyers, spent that amount or more. Among them was the second named defendant. The purchaser’s ledger records the total amount of sales and therefore any purchase could be based on buying a multiple of two or more horses. However, of the other two buyers who were potential purchasers, one is dead and lived at a very considerable distance from the scene of this accident and the other gave evidence to positively state that he had not bought Knockfune Dasher.
22. I have also had the benefit of the evidence of Eddie O’Connell. Regrettably, I find his evidence to be completely unreliable. He claimed that the horse which had been sold at the Goresbridge sales to the Derwins was one called “Queen of Manney”. He claimed this on the basis of something that the manager of the sales had said to him, but I am not satisfied that any such thing was ever said. He claims that Knockfune Dasher had been sold later at Ballinasloe Horse Fair in the first week of October immediately prior to this accident. He said this on the basis of his family having recently told him this. I do not accept this. On the 23rd January, 2004, Sergeant Shaughnessey rang Mr. O’Connell and asked him about Knockfune Dasher. I am satisfied that Edward O’Connell told him that he remembered the horse well, that she was the best that he ever had, that she was “a great pony” and that she once “won the league”. He told Sergeant Shaughnessey that he sold her in Goresbridge for over £2,000 and that Francey Derwin, who is the second named defendant, bought her and that he then got rid of her because she was involved in an accident. He told Sergeant Shaughnessey that he had inquired of the second named defendant “how the pony was getting on”, I am satisfied he did so because he was very fond of this animal, and that the second named defendant revealed to him that he had got rid of the pony because of “an accident”. Later, when Sergeant Shaughnessey attempted to take a statement from Mr. O’Connell, he said that he did not want to get the Derwins in bother as he did business with them. I am not satisfied that Sergeant Shaughnessey treated Mr. O’Connell in any improper way, as he alleged. It is beyond doubt that I am not entitled to have regard to what I am satisfied Mr. O’Connell told Sergeant Shaughnessey. Nor am I entitled to have regard to Sergeant Shaughnessey’s account of it. I am only entitled to have regard to evidence on oath, not prior statements by people who are not plaintiffs or defendants or their agents not on oath. These are not admissions but merely prior inconsistent statements that can be had regard to solely on the issue of credibility. This problem was recently the subject of reform in the Criminal Justice Act 2006, in respect of statements taken by the gardaí in the course of criminal enquiries which are later disavowed under oath. No such reform, however, has been made for non criminal cases.
23. I am therefore satisfied that I am only entitled to have regard to the fact that Edward O’Connell owned a horse called Knockfune Dasher; that on his evidence his son jumped it up to May of 1998; that he entered a horse for sale in Goresbridge sales the following June; and that the second named defendant there purchased a number of horses. I am satisfied that among the horses that he purchased was Knockfune Dasher. I regard it as a coincidence beyond comprehension, having looked at every reasonable possibility to otherwise explain this fact, that Knockfune Dasher should appear on this roadway as the injured horse. It could not reasonably have come from anywhere else other than the first named defendant’s field, Allen’s field, and its owner could not be reasonably thought to be anyone’s other than the second named defendant. It was under the first named defendants control as was the dead horse.
Conclusion
24. I am satisfied that the possession and control of these horses was in the first and second named defendants. I am satisfied that each of them was involved in enterprise involving the purchasing and selling of horses and that the main focus of this involved keeping the horses at Allen’s field. The horses that were involved in this accident were probably owned by the second named defendant. There were kept at the lands of the first named defendant who was in possession and control of them. These horses were inadequately fenced and left the land at around dusk on the 21st October 1998, and caused the serious accident whereby the plaintiff was badly injured. In reaching that conclusion I am not taking into account any evidence concerning the conviction of the first named defendant in respect of a wandering horse at this location about one year later, nor other wanderings of horses allegedly associated with the Derwin family at other places; I am not relying on the prior inconsistent statements of Eddie O’Connell, as these are inadmissible in evidence; I am not relying on any garda opinion as to liability; and, finally, I regard the search by Garda Robert McConnell around the area after the accident as being cursory and it told me little. These horses disappeared shortly after the accident, apart from the two mentioned. The gardaí never found them. They did not look very hard. So, where did they go, and how? It is clear that the owners of these horses spirited them away quickly after the accident as they were neither seen again that night, nor found wandering the next day.
25. I note, in addition to the evidence already analysed, that the second named defendant turned up at the county dump and spoke to Mr. Tone while the dead horse was in the loader of the JCB. I am satisfied that what occurred is evidence against him alone. At around 10.00pm on the day of the accident the dead horse was being put into the landfill site, which is a short distance off the road by the N6 roadway and very proximate to the scene of the accident. You would need a reason, however, having visited this dump, to go there. Francis Derwin Snr, the late second named defendant, drove up in a jeep. He had a young man with him. I regard it as probable that this young man was one or other of his sons, though they both have denied ever being there. Francis Derwin Snr looked out of the window of the jeep, but did not leave the vehicle. Gerry Tone asked him “is this your horse?” The late Mr. Derwin replied “No”. Gerry Tone then said “Well” and he replied “I am just here to make sure it is not one of our horses”. I do not accept the second named defendant, who had many horses, could have made this assertion as a matter of truth without getting out and examining the horse’s head and feet. I cannot accept, in addition, the evidence of Jim Derwin, brother of the first named defendant, that on the day after the accident he checked all of the horses belonging to the defendants; that he knew that horses “never came out” of Allen’s field; and that every fence was in order. Since this testimony for the defence conflicts with the evidence of Dominic O’Brien, I prefer that evidence in favour of the plaintiff. I also discount the evidence of Francis Derwin, the first named defendant, that the grass verge near Allen’s Field is easy to mark. It is not. Nor, is it any way like a garden lawn. I cannot accept his evidence that he did not know why there was a white electric-type tape put up as a kind of supplemental barrier when the plaintiff’s wife took a photograph of the fence on the 10th October, 1999. I cannot accept the evidence of any of the defendants’ witnesses that they never kept a list for horses and did not keep any reliable or proper records. I cannot accept their evidence that they never owned Knockfune Dasher, though I do accept their evidence that they knew nothing about a horse called Queen of Manney. Of itself that establishes by a different route, with Mr. O’Connell’s evidence as to sale and the Goresbridge records, that the injured horse was Knockfune Dasher.
26. Given the condition of the fencing there is no doubt that a group of horses could easily stride away from their captivity in Allen’s Field. This is what happened and that is how the accident occurred. As to there being no horses visible on the next day after the accident, I am satisfied that what occurred was probably that the horses were rounded up that night and put hurriedly away from Allen’s field and probably on the second named defendant’s land near Glen Wood, as seen by Mr. Tone, later fenced in with loose gates, and that they were returned, and therefore were visible, some days later and were seen by the plaintiff’s son on the 7th November. As to negligence, the evidence convinces me that the fencing was inadequate. It was broken down. This happened because of horses leaning over it and eating the luxuriant grass verge while putting their weight against it and cracking the concrete of which it is made and weakening it. I am satisfied that horses were fed over that fence from the roadway with hay from a vehicle that was quite often parked there. This encouraged the horses to eat that way. In any event, the growth of long grass in the road margin is also a food source that no horse would fail to attempt to stretch over the concrete fencing for.
Damages
27. A number of helpful medical reports have been submitted to the court and, in addition to that, I had the benefit of hearing Dr. Simone Carter and Dr. Mark Delargey. The plaintiffs own evidence on this issue impresses me. Some days after this accident the plaintiff regained his sense of orientation and realised that he was in hospital. He was only in Portiuncula hospital for a week and he felt that, perhaps, nothing too bad had happened. He had snapped his collar bone and had chest and head injuries and he thought he would be fine. Working three months after the accident in his carpentry workshop, he lost concentration and cut off the top of one of his fingers. It was then he realised that he had a brain injury. This accident is too remote for me to ascribe responsibility to the defendants for it. For the first few years after the crash, the plaintiff describes information as disappearing out of his head. He had given himself only six weeks to recover and the realisation that he was now permanently affected was one that he has spent a great deal of time attempting to come to terms with. He now has difficulty concentrating on watching the television or reading more than a paragraph or so of a newspaper. He never got back to work. I am satisfied that even though his earnings were small prior to this accident, the plaintiff was a skilled carpenter from which he got the kind of satisfaction that men and women do out of usefully using their hands. After the accident, he got a supervisior job with a local business man, whom I infer was a friend. This job just involved opening and shutting a premises and being there as a kind of caretaker. He was unable even for this, however. He put a sun room on to his home, as a project. This would have taken him perhaps a month or less prior to his accident but it has taken him five or six years to bring it to completion. He says that he has now come to terms with the fact that he cannot work. Sometimes, even his ability to talk goes “a bit haywire”. He has become obsessive and unable to do more than one task at a time or to think about more than one issue at a time. He has suffered from anxiety and negative thought. Random headaches occur from time to time. He does not get chest pain but he does get back pain. His wife has had difficulty coping with him but has been tremendously supportive and decent.
28. I have had the benefit of a vocational assessment report done by the national rehabilitation hospital’s Catherine Logan. She says that he will not be able to seek and maintain secure open employment in the future. He may try to assist his wife, who had to abandon a small stained glass craft project to help him, but even the ability to do any kind of light employment is speculative. Dr. Mark Delargey, after reviewing the plaintiff, gave the following opinon:-
“Mr. O’Brien sustained a traumatic brain injury as a result of a road traffic accident on the 21st October, 1998 . While the reported Glasgow Coma Score was normal on initial assessment in Portiuncula hospital, the case for a significant traumatic brain injury is made through the extent of Mr. O’Brien’s facial trauma and the report of the CT brain scan reports involving multiple skull fractures, facial fractures, a depressed fracture of the right temporal bone, they comminuted fracture of the right orbit and the report of generalised brain swelling.”
29. The report on review from Dr. Simone Carter, dated 1st December, 2005, confirms the plaintiff’s view of himself. She gave the following summary of her views:-
“Mr. John O’Brien is now a fifty-eight year old gentlemen who sustained what would be classified as a very severe traumatic brain injury just approaching ten years prior to undertaking this latest review and assessment. The severity of the injuries indicated by the fact that he lost consciousness, his brain scan was positive and that he had a post traumatic amnesia of at least three days. Mr. O’Brien’s clinical course has changed over the last ten years, as would be expected. The initial signs of high levels of irritability, poor memory and concentration have reduced and infrequency and intensity, though they continue as residual cognitive and behavioural changes that were not reported features of his pre-morbid personality. Mr. O’Brien is fortunate that, prior to the accident, he was a bright gentlemen, whose pre-morbid intellectual ability was estimated to have been within the superior range of ability and he has been able to use some of these well-preserved cognitive strengths to compensate for his current difficulties.
On formal cognitive assessment, overall he performed very well with scores between the average to the superior range of abilities. It is significant however, that he demonstrated specific cognitive deficits with switching attention, attention and concentration, working memory and speed of information processing. Indeed, it is these persisting deficits that have interfered with Mr. O’Brien’s ability to resume his level of functioning as it was prior to the accident. In addition he has consistently reported a decline in his confidence and ability to undertake tasks that would be considered to be well within his ability. He also has the commonly reported physical problems of sensitivity to fatigue and headache that can also
While Mr. O’Brien has performed well on cognitive assessment, it must be borne in mind that these assessments are usually performed under ideal circumstances where there is minimal noise and distraction, instructions are clearly and carefully explained and patients are usually very motivated to perform to the very best of their ability. Unfortunately, in the “real world” there are often greater levels of distraction and not always the same opportunities for clarification and some of these factors interfere with Mr. O’Brien’s level of functioning and the day to day problems he experiences. He is fortunate that his family have been very protective towards him, especially to keep stress to a minimum and their attention to the clinical recommendations made has been a great benefit to him.
In relation to prognosis, given that he is now approaching ten years since he sustained these injuries, it is highly unlikely that his current status will improve sufficiently at this stage, that would allow him to resume his life as it was, prior to the accident. My opinion is that he is currently at his highest level of functioning and that the current strategies (cognitive and behavioural) he uses should continue for the foreseeable future.”
Special damages
30. The amounts that have been presented as to loss of earnings were entirely reasonable. There is also something that I must to take into account that over the course of the last ten years the plaintiff could have expected, as a skilled craftsman, to have been well employed for good money at a time when construction was a mainstay of the economy. Mr. Peter Beirne, who gave evidence, said that he could now expect to earn based on his previous income, at least a sum of €14,950 as a skilled operative. I would regard that as modest. If the plaintiff does not get a job from now until age 65, his loss is €83,700 based on his previous average. His loss of earning to date is in the sum of €82,570. These figures have been arrived at reasonably in my opinion. In addition the case has been made that his wife is entitled to a sum in respect of damages for home care and I am not satisfied that on the authorities I am entitled to make such an allowance. My sympathy goes very much in favour of the plaintiff’s wife and the tremendous work that she has done. It was apparent even as they were sitting in court that the plaintiff depends upon her and their mutual affection is obvious. It was argued that the alternative to making such an award was to make an allowance in respect of home care. I simply feel that there is no legal warrant for me to do so since the precedents opened to me concern the use of nursing skills to a badly injured plaintiff.
31. In addition, the following special damages are agreed:-
(1) Travelling €10,000;
(2) Subsistence €2,000;
(3) Doctor’s bills €932;
(4) Pharmacy €128.27;
(5) Physiotherapy €533.75;
(6) Miscellaneous €400;
(7) Destruction of motor vehicle €3,000;
(8) Destruction of equipment €2,500.
Adding all those figures together, the amount of special damages comes to €177,394.02 when the future earnings are reduced by 10% due to ordinary risks such as underemployment and redundancy.
Quantum of General Damages
32. Under the relative legislation, I am bound to have regard to the quantum of damages as worked out by the Personal Injuries Assessment Board. These figures are set out in its Book of Quantum. While some scepticism was expressed by counsel in relation to this exercise, I wish to record that I am grateful for the work done by the Personal Injuries Assessment Board on the issue of general damages. It provides a touchstone against which the cases can be assessed and it is a useful expert view which can help the court in coming to a conclusion on this difficult issue.
33. There is maximum level to the award of general damages that can be made in a personal injuries case. Counsel made some interesting observations on the contrast between that maximum amount and the kind of damages that juries can award in defamation actions and the amounts that have been secured by persons who have been wrongly convicted of crimes and who may have actually been innocent. With respect to the diligent submissions of counsel, these observations are beside the point. I am obliged to apply the law as it is and if the Supreme Court wishes to look at the question of the maximum amount of general damages as regards all cases in the future, I will, of course, regard myself as bound by that observation if it happens. In N.N. v. S.N., [2005] 4 IR 461 Denham J. indicated that the cap on general damages, previously set at £150,000, is now €300,000. I cannot see the condition of the plaintiff as attracting that maximum amount. The plaintiff is still able to drive and is coping better as the years have passed with the devoted assistance of his family.
34. In addition to the plaintiff’s main brain injury, there are other smaller bone injuries, a small degree of scarring and what would normally be highly significant in terms of an injury, the loss of his sense of taste and smell, which would otherwise attract an award of serious compensation. At p. 4 of the Book of Quantum the following passage appears, which seems to me to be correct:-
“If, in addition to the most significant injury as outlined above, there are other injuries, it is not appropriate to add up values for all the different injuries to determine the amount of compensation. Where additional injuries arise there is likely to be minor adjustment within the value range.
35. It is clear that the plaintiff has a serious and permanent condition. The Book of Quantum classifies skull fractures and brain injuries under three headings. The first, attracting the least significant amount of damages involves a skull fracture with no loss of consciousness. The second, leading to more significant damage, involves a skull fracture with a brain injury but with no loss of consciousness. Finally, the most serious category involves a skull fracture with intracranial injury and loss of consciousness. For a serious and permanent condition, the maximum amount set is €129,000. An argument was presented that this Book of Quantum was formulated in 2004. That does not mean that the values are out of date, especially at a time when property values are slipping rapidly and when the economy is in serious challenge. It could be that the deflation since that time makes the sums questionable in the other direction, but they seem to me to be a good guide. I think it is correct to award the plaintiff the sum of €120,000 under that heading, and it could be divided as pain and suffering to date in the sum of €80,000 and pain and suffering into the future in the sum of €40,000. As to his fractures, and as his scarring, I propose to add on the sum of €20,000, divided as €10,000 to date and €10,000 into the future. For his loss of his sense and taste and smell I will add the same figure.
36. Under the decision in Reddy v. Bates, [1983] I.R. 141, any award of loss of earnings into the future should take into account the uncertainties of the labour market and the fact that permanent and pensionable employment is no longer the norm. The amount of money awarded to the plaintiff in respect of loss of earnings into the future should therefore diminished by 10%.
Result
37. The defendants were each and jointly and separately liable in respect of the plaintiff’s injuries. The plaintiff is entitled to general damages in the sum of €160,000. His special damages as previously calculated should be reduced on the Reddy v. Bates principle, so the final decree for damages to the plaintiff is €160,000 plus €177,394.02 special damages making a total of €337,394.02.
M’Morrow v. Layden
[1919] 2 IR 399
MOLONY C.J. :
In this case the plaintiff originally brought a civil bill against John Layden and others, claiming £17 damages “for that Michael Layden, senior, during his lifetime entered into an agreement with the plaintiff that he would erect and maintain a suitable protection fence around a quarry on the plaintiff’s lands in Tullymurray in the said division and county, yet, contrary to said agreement, the said fence has no been properly erected and maintained, in consequence of which the plaintiff’s bullock on the 16th August, 1918, fell into said quarry and was killed, to the plaintiff’s loss in the said amount. The defendants are sued as executors de son tort or otherwise of the said Michael Layden, senior, deceased.” On the cause of action thus stated in the civil bill the plaintiff did not succeed because it was found by the Judge on the hearing of the appeal at the assizes that there was no agreement which could be enforced against the defendants. However, Mr. Fetherstonhaugh at the hearing of the appeal got leave to amend the civil bill by adding the following claim:”Alternatively for that the defendants as executors and legatees of Michael Layden, deceased, are possessed of the minerals and right of mining under tenancy from George Marsham beneath the surface of the said lands of Tullymurray, held by plaintiff formerly as tenant to George Marsham, and now as purchaser under the Land Purchase Acts, and the defendants as such owners of the said rights have and keep open a certain quarry surrounded by plaintiff’s lands on which he keeps cattle to graze, and which if unfenced was dangerous to plaintiff’s cattle, and defendants neglected and omitted to fence said quarry so as to prevent plaintiff’s cattle falling into the quarry, whereby a bullock, plaintiff’s property, fell into said quarry and was killed, to the plaintiff’s loss in the said sum.” It thus appears that the claim upon which the case was fought and the decision given was a claim that there was a quarry on these lands which was in itself dangerous unless certain precautions in the nature of proper fencing were taken. These precautions, it was alleged, were not taken, and in consequence of the failure to take them the animal fell into the quarry and was killed.
That at once raises the question as to whether the defendants as successors in title of Michael Layden, deceased, were under an obligation to fence and maintain the fencing of that quarry so as not to be a source of danger and nuisance to the plaintiff.
It was proved at the hearing that the plaintiff had been for many years prior to 1899 tenant of these lands, which he had now purchased under the Land Purchase Acts. It was proved that on these lands there were a shaft of a coal mine and a quarry connected with this shaft, and that the mine and quarry had been worked by Michael Layden, senior, for many years under lease from the landlord of the plaintiff, granted by George Marsham to Michael Layden. That lease is incorporated in the case stated, and is for a term of twenty-one years from the 24th March, 1899. It is a lease of certain beds, veins, and seams of coal; and it gave the lessee full and exclusive liberty and licence to work and carry away for his own use all coal there found, he paying a yearly rent of £20, and a rent of 6d. per ton on all coal taken in excess of 1,500 tons per annum.
It is admitted that there were certain alterations made by Michael Layden, senior, who was working the mine in the year 1897, and that he enlarged the quarry, and in consequence of this enlargement it is alleged that the quarry became and still is a danger to the plaintiff’s cattle.
Michael Layden died on the 25th November, 1916, and the defendants have succeeded to his rights in the lease of 1899 under a provision in his will by which he left all his interest in the mine and quarry to his sons, and appointed two executors.
It is found by the learned Judge, first that the quarry was dangerous to cattle owing to its not being fenced, and that it was because of this the plaintiff’s bullock was killed; second, that Michael Layden, having by enlarging the quarry made it dangerous to plaintiff’s cattle, was bound to fence it in such a way as to prevent it from being dangerous. So far as these findings of the learned Judge are concerned, they are acquiesced in by both parties. The argument of the plaintiff’s counsel, however, is that the defendants, having succeeded to the interest of Michael Layden in a quarry which at the time they succeeded was not properly fenced, and which was then a danger and a nuisance, and they having allowed it to remain in that unfenced and dangerous condition, in consequence of which the plaintiff’s bullock was killed, are liable to the plaintiff for their breach of duty to him. On the other hand, it is said that, although there might have been a right of action against Michael Layden in 1897, that right does not exist now, and that the defendants are not liable.
In cases of persons entitled to dig for minerals in respect of, 1, mine-shafts and the working of mine-shafts, and 2, as regards the legal effect of subsidence, there have been a number of decisions to which I will refer in a moment.
The plaintiff relies on the case of Williams v. Grovcott (1),and also on Hawken v. Shearer and Another (2). Williams v.Grovcott (1) decides that where a person is entitled to the minerals under the land of another, with licence to make a mine-shaft opening into it, he is, in the absence of any stipulation to the contrary, under a legal obligation to the owner of the surface soil to fence the shaft so as to prevent its being a source of danger to his cattle which may be upon it, and is liable to an action for injury accruing to those cattle for want of such fencing. It is unnecessary to examine the facts of that case. The principle is clearly stated by Cockburn C.J. as follows:”On the one hand, the owner of the surface may say to the owner of the minerals, ‘You have licence given you to dig this that, still it is incumbent on you to fence it.’ On the other hand, the man who sinks the shaft may say, ‘In making this shaft I did no more than I was given a right to do; and if, in consequence of that, dangerous consequences are likely to arise to your cattle on the surface, it is for you to guard against them.’ And the question is, whether the man sinking the shaft is entitled to make that answer, or is he under an implied obligation to fence the shaft? I am of opinion that it is more reasonable to expect that the man whose act produces the danger should do all that is reasonably necessary to prevent injurious consequences to the owner of the surface soil, who does not know that a shaft will be sunk, or, if so, when or where it will be sunk.” Now, hat principle has been followed ever since. A similar case, Hawken v. Shearer and Another (1),came before Mathew J., a great authority in this class of case, and he deals with the argument before him as follows:”The scope of the arguments on either side in his case amounts to this, that we are presented with two well-known legal maxims: the one, Sic utere tuo ut alienum non laedas; the other, Volenti non fit injuria. On the one hand, we have it that here there is an obligation upon the quarry-owner to fence in the quarry; and upon the other that no such obligation exists, and that it is the duty of the owner of the land to protect his cattle. The authority on the subject is certainly scant, but I am inclined to think it sufficient. It appears to me that the true principle has been well laid down in Williamsv. Grovcott (2), which is this, that where an alteration has been made in the normal state of things, calculated to cause injury to a neighbour, an obligation is cast upon the person who makes such an alteration to protect his neighbour from injuryin this case to place a fence so as to prevent cattle from falling into the quarry.”
It is unnecessary for me to do more in the present case than to refer in passing to the case of Clarke v. The Midland Great Western Railway Company (3), where the whole subject of continuing damage was considered.
Counsel have referred us to cases of subsidence, and the first case relied on was the case of Greenwell v. Low Beechburn Coal Company (4). That was a decision of Bruce J. on the trial of an action to recover damages for injury done to the surface of the land by subsidence caused by working mines. In a considered judgment Bruce J. held that where the buildings of the plaintiffs erected more than twenty years before action, on land, the mines under which were worked by the defendants under a lease, were injured during the currency of the lease, and within six years before action, by subsidence caused, not by the acts of the defendants, but by the acts of their predecessor in title, done prior to the date of the lease, the defendants were not liable. The same principle was followed in the case of Hall v. Duke of Norfolk (1). In that case Kekewich J. cites with approval, at page 499, Bruce J. as follows:”Until the actual subsidence happened, there was nothing unlawful in the state in which the land was left. At no moment prior to the subsidence can it be said that there was any duty upon anyone to provide artificial support; and, therefore, it seems to me that it cannot be said that the defendants are guilty of a default of duty in allowing a state of things to continue which was a perfectly lawful state of things.” In that sentence the distinction between the two classes of cases is tersely put. In the one case, until actual subsidence, there is nothing unlawful in the was the lands are left; whilst, in the other case, there is something unlawful unless proper pre cautions are taken to protect a neighbour, and that is the distinction I see between a case of subsidence and this case, where there is on the lands an unfenced and dangerous opening. The defendants succeeded to the rights and liabilities in respect of this unfenced opening, and there is clearly a continuing obligation on them to keep it so as not to be a nuisance to their neighbour. The question put must be answered in the affirmative.
Dunphy v Bryan
District Court
17 April 1962
[1963] 97 I.L.T.R 4
District Justice Coghlan:
The plaintiff’s claim is for £15 1s. 10d. for damages alleged to have been caused to her motor car (driven by her husband on the occasion), when, by reason of alleged negligence and breach of duty on the part of the defendant, a lamb the property of the defendant ran in front of and collided with the said car, at Maddoxtown, Co. Kilkenny.
The lamb appears to have been one of three pet lambs which were habitually fed about the defendant’s kitchen door or in the yard.
There was evidence that other animals, including pigs, the property of the defendant, had previously strayed upon the road and been the subject of the complaint to the defendant, but the receipt of the complaints was denied.
There was also a conflict as to what the defendant’s wife said, immediately after the event, in regard to her reactions to those lambs frequenting the step of her kitchen.
I think, and hold as a fact, that there had been previous trespasses on the road on the part of the defendant’s animals, and the defendant’s wife herself admitted that she might have said that these lambs were a nuisance. The evidence, however, falls short of proof that this animal or any others were actually put out on the road by the defendant or his agents.
The fact that their respective contentions were put forward with equal force by two careful and experienced practitioners made me feel that this was a case in which I should reserve judgment and look into the law, although the amount involved is small.
Mr. Lanigan cited Salmond on Torts to the effect that there is no liability for damage done by animals, not known to be vicious straying upon the highway. He cites also Gibb v. Comirford 73 I.L.T.R. 224; [1942] I.R. 295 and in answer to Mr. O’Hanrahan’s submission, ictorts that, if the law is to be changed, it is only the Oireachtas can change it. He adds that it would be an intolerable *4 burden upon the farming community if escape or trespass on the highway, as distinct from trespass into a neighbour’s field, were to attach liability to the owner of the animal.
Other text books bear out Mr. Lanigan’s submission. Charlesworth on Negligence third edition (1956) at page 108, gives a formidable list of instances of non-liability, not only in respect of escapes, but of animals being allowed to stray on the highway. The learned author points out, however, that on the criminal law side, there are many instances of owners being liable to penalties for such escapes or trespasses. Bevan on Negligence gives similar guidance.
Glanville Williams on the Law of Animals, at p. 380 takes Mr. O’Hanrahan’s point, and says that the divergence between criminal and civil law on these matters is not justified, and the law should be expanded to meet the changed needs of the age. The learned author points out that, of all the territories which have adopted the “common law”, the Canadian Province of Ontario shows the only exception. There, the Courts have taken the view that, as there are so many statutory and other prohibitions on such trespass, on the criminal law side of legal administration, such liability is superimposed upon, or flows over into the civil law, and so makes the owner of the straying animals liable to the person who suffers.
In Somers v. Reilly [1946] Ir. Jur., Rep. 44, Haugh J. held the plaintiff entitled to assume that the defendant would observe by-laws at a crossing. This could not, however, justify an assimilation of criminal and civil law.
In a recent paragraph entitled Animals on the Highway 96 I.L.T. & S.J. 89 (quoted from the English journal, The Law Times), an English Judge, Lord Justice Holroyd Pearce, refers to the law relating to animals on the highway as “unsatisfactory, archaic and uncertain.” He expresses the regret that the findings of a governmental committee, on which he had sat ten years ago, had not been put into effect.
This matter is also one which is listed for consideration in the law reform intended in this State, but, for the present, we are bound by the law as it has stood for such a long time. It is succinetly reviewed in an interesting article on Liability for Animals in the Irish Courts Northern Ireland Legal Quarterly No. 3, Vol. X (November 1953, under subtitle Cattle-Trespass on the Highway. The article says: “This constitutes an exception to the general rule of cattle-trespass. The owner or occupier of land adjoining the highway is under no duty to prevent his domestic animals not known to be dangerous from straying on the highway Searle v. Wallbank [1947] A.C. 341. The reason for this is that in early times, very few roads were fenced off from the adjoining land, and it would have been a considerable imposition on the owner of cattle if he had been compelled to prevent them from straying. The exception appears to apply also to cattle straying from the strip of grass along the highway on to the road itself, and it applies to an occupier or mere licensee of the land whose animals escape from it.
“Difficulty has arisen in cases where there was negligence on the part of the owner of the animals. In Heath’s Garage Ltd. v. Hodges [1961] 2 K.B. 370, it was held that even though the animals strayed on the highway through the defendant’s negligence, yet there was no liability. Conversely, in the Irish case of Cunningham v. Whelan, 51 I.L.T.R. 67 Molony J. held that liability existed where a mass of twenty-four bullocks and heifers straying on the highway pressed on the plaintiff’s cart and upset it. He followed Pickford L.J. in Heath’s Case in the reasoning that a large number of straying animals must necessarily lead to an obstruction. This view was followed by Andrews L.J. in Hall v. Wightman [1926] N.I. 92 where he observed that if it could have been proved that there were sufficient animals on the road to constitute an obstruction, the plaintiff might have been able to recover.
“There appear to be two limitations on the exemption:
“(a) Where the highway is in a town or city. Thus, in Howard v. Bergin, O’Connor and Co. [1925] 2 I.R. 110, some bullocks were being conveyed to Dublin by train and while they were being unloaded by the defendants’ servants, two of them took fright, escaped through an open gate, and did damage. It was held by the Supreme Court in the Irish Free State that the defendants were liable in negligence, although both Kennedy C.J. and O’Connor J. appear to have gone further, and held them liable in scienter as well. O’Connor J. said: “I am inclined to think that the common law proposition has no application to the conduct of business in cities, and I feel almost driven to this view by a consideration of the consequences, which would ensue from non-liability for escape of animals from enclosures abutting public streets. It is, further, very remarkable that all the cases which have been cited were concerned with escapes from enclosures in rural districts.” In the latter case of Deen v. Davies [1935] 2 K.B. 282, *5 Slesser L.J. appears to have based his judgment on this distinction between the standard of care in the country and town, and both Romer L.J. and Singleton J. adverted to it, but the true distinction appears to be the historical one suggested by Romer L.J. that in early times, before country roads existed, cattle were grazed at will, yet this could not apply to a highway through a town because there was ‘no known habit on the part of the public to let their domestic animals roam over the road between the houses of the town.’ (See 52 L.Q.R. 9; 66 L.Q.R. 457). It has been held in Ireland, however, that the driving of a single bullock quietly along a public road in a country town, in charge of a drover, did not constitute negligence so as to render the owner liable for injuries caused to a cyclist with whom it collided: Scully v. Mulhall, 85 I.L.T.R. 18; also Wright v. Cullwood [1950] 1 K.B. 515, 530.
“(b) Where the animal is known to have such characteristics as to impose upon its owner a duty to prevent it from endangering the public by escaping on to the highway; Brock v. Richards [1951] 1 K.B. 529, 535. But negligence cannot be established merely by proof that a defendant has failed to provide against the possibility that an animal will do something contrary to its ordinary nature; Gibb v. Comerford (supra); though it was held in Campbell v. Wilkinson 43 I.L.T.R. 237, that it was contributory negligence to drive foals along a country road so as not to be able to control them in the event of sudden fright from a barking dog.
“The general tendency seems to be to restrict the operation of the exemption of animals on the highway whenever possible. In Hughes v. Williams [1943] K.B. 574, for example, Heath’s Case was followed by the Court of Appeal in England, although all the members of the Court expressed strong disapproval of it. In this connection, it should be noted that, if cattle are lawfully on the highway, there is no liability for trespass upon adjacent land in the absence of negligence on the part of their owner; Tillett v. Ward (1882) 10 Q.B.D. 17, Hughes v. Williams (supra). This rule applies to town as well as country roads; and it is immaterial whether the land to which the cattle stray is fenced or not.”
At one stage I thought that it might be in point to consider whether any guidance on these matters should be afforded by the Brehon Laws, which were operative in this country for so many centuries. There is appropriate material in An Seancus Mor, Volume IV, and in a work known as Duala, compiled by Cormac MacArt and others, to which I had not access, but to which reference is made in the handbook, Ireland’s Brehon Laws by Rev. J. E. McKenna, P.P., M.R.I.A.
For various reasons those early laws have been so long inoperative (appropriately, the Statute of Kilkenny, 1367, being contributory to their cessation) that it would be wrong to throw them into the scale against the common law, even if I were not bound by higher authority to follow the common law. It is to be hoped, however, that they will be carefully studied when we embark upon law reform.
On the present law, the defendant is entitled to a dismiss of this action.
O’Gorman v O’Gorman
King’s Bench Division.
21 November 1902
[1902] 36 I.L.T.R 237
Kenny J., Barton J., Wright J.
Nov. 20, 21
Kenny, J.
The doctrine of scienter is altogether inapplicable in such a case as this. Bee-farming, if carried on in a proper manner, undoubtedly constitutes a natural user of the land. But I consider that the jury were perfectly justified in coming to the conclusion that it was an unreasonable user of the land to have so many hives in close proximity to the plaintiff’s holding. The defendant is liable for keeping animals which to his knowledge, as shown by the repeated complaints, were a danger and annoyance to his *237 neighbours: Rylands v. Fletcher; Brady v. Warren. It has been argued that the damage is too remote, but the whole occurrence took place within a minute, and the injury was the natural and reasonable result of the attack by the bees. Therefore the verdict must stand.
Barton, J., I concur.—The question of scienter does not enter into the case. At the same time, the defendant’s knowledge as to the habits and character of the bees is material on the question of negligence. I mainly rest my decision on the finding of the jury, that the honey was not removed with reasonable skill and prudence. The defendant protected his own person, but took no steps to prevent the bees from attacking other people.
Wright, J.
Scienter has no application in the case of an aggregate of animals, where the propensity of each particular animal cannot be traced. Liability through overstocking exists not only in the case of animals ferae naturae, but also in the case of tame animals.
James Coady v Player and Wills (Ir.) Limited
Circuit Court
30 March 1979
[1980] 114 I.L.T.R 32
Judge Sheridan
Judge Sheridan:
Although the defendant in this case would be unable to maintain an action in negligence against the plaintiff, I am, however, of the opinion that it is possible to find the plaintiff guilty of contributory negligence, namely fault in relation to the protection of his own property, in allowing his own animal to stray onto the highway in the manner described. I find him so guilty and attribute 20% of the fault to him and 80% to the defendant, damages to be assessed accordingly.
Edmond Noonan v Mary Hartnett
Circuit Court.
2 February 1950
[1950] 84 I.L.T.R 41
Judge O’Briain
Judge O’Briain:
In this case the plaintiff claims the sum of £120 5s. 0d. loss and damage sustained by him for trespass of cattle grazing on the defendant’s lands, pursuant to a grazing contract entered into between the defendant, through her agent, and one James Harte, at St. Mary’s, Chesterfield, Knockaderry, in the months of August and September 1948, on portion of the lands of Grange Lower, Newcastle West, in the county of Limerick, of which the plaintiff was then in occupation, as a result of which oats, straw and aftergrass, the property of the plaintiff, was damaged and destroyed to his loss in the above amount.
The defendant contests the plaintiff’s claim on the grounds, inter alia, that the Civil Bill does not disclose a sustainable cause of action and that the cattle mentioned in the Civil Bill were not the property of the defendant and were not in the defendant’s custody or possession or under her control. The said cattle were, at all material times, the property of one James Harte and in his custody and under his control.
I am satisfied that the cattle which were on the defendant’s lands, pursuant to a contract between the defendant and James Harte, did trespass on to the lands where the defendant had his corn crop and caused considerable damage to the crop. I am also satisfied that the defendant endeavoured to ascertain who was the owner of the cattle, and the circumstances under which the cattle trespassed on to the lands. It has been established in evidence that one David Walsh took the lands from the defendant’s agent and that he took them for James Harte who undertook the responsibility for fencing and for herding his cattle.
This Court has already held in Dalton v. O’Sullivan [1947] Ir. Jur. Rep. 25, that where cattle in the possession of an agister escaped and caused damage to the property of a neighbour, the owner of the cattle was not liable for the damage caused, as he was not in occupation of the lands from which the cattle escaped, nor in possession of the cattle at the material time. The question whether the basis of liability for cattle trespass depended upon occupancy of the land from which the cattle had strayed or upon possession of the cattle was not decided, and it is only right to say that the decision in that case was a negative one and that in the particular circumstances it was held that liability did not attach to the owner of the cattle.
But, in the course of the judgment, I went on to say: “I find that in Hunt on Fences and Boundaries the view is expressed that liability for trespass of animals is based upon the rule in Rylands v. Fletcher. In Underhill on Torts (8th edn.) it is stated at p. 180 that this rule (with some modification) is the foundation of the liability for damage done by animals. Mr. Williams points out at page 197 certain differences between liability under the rule in Rylands v. Fletcher and in cases of cattle trespass and observes in Note 5 at page 199: ‘Liability under Rylands v. Fletcher in some sense presupposes the use of ‘dangerous things’ and the ‘non-natural user of land’—expressions that can hardly apply to the age-old practice of keeping cattle. Hence, in Manton v. Brocklebank [1923] 2 K. B. 212, it was held that an injury by the defendant’s mare to the plaintiff’s horse did not come within Rylands v. Fletcher although had there been a trespass to land damages could undoubtedly have been recovered in cattle trespass.’”
The first question which I have to decide in the present case is whether the contract between the defendant and James Harte was an agistment contract or not. In Mulligan v. Adams (1846) 8 I. L. R. 132, the defendant, by a parol agreement with the plaintiff, took a portion of his land for grazing, the plaintiff undertaking to watch the defendant’s cattle, and reserving to himself the grazing of a horse. The day following the agreement, the defendant put his cattle on the land and left them there for about five or six weeks and he afterwards allowed other cattle, not *42 his own, to be put on the land, which cattle the plaintiff removed saying that he would not allow the defendant to sub-let. Upon this state of facts, counsel for the defendant called for a non-suit on the ground that the declaration, which contained a count for the grazing of certain cattle and the common money counts, ought to have contained a count for use and occupation as the agreement amounted to a demise. Counsel for the plaintiff submitted that there was no demise of the land, nothing that gave the defendant possession generally but merely a right to use the lands. The agreement gave the defendant no right of occupying the lands for any purpose but grazing. The word sublet was used by the plaintiff himself and was not used in its legal sense. It was argued by counsel for the defendant that agistment meant the owner of the land taking the cattle of another to graze, he having exclusive possession all the time. By the terms of the agreement possession of the lands had passed, the plaintiff had treated the defendant as a tenant and the count should have been for the use of the lands by depasturing. It was held by the Court, however, that the action was well sustained. The true meaning of the agreement was not that the party should have the land for depasturing, but the grazing of the land and he had no right to use it for any other purpose whatever. The plaintiff, it was held, had remained in possession of the land.
In the present case I am of the opinion that the contract between the defendant and James Harte was in the nature of an agistment contract. In Dalton v. O’Sullivan (supra) I stated in the course of the judgment: “It is to be observed that the liability for cattle trespass may be attributed on the one hand to occupancy of land from which the cattle stray as appears to be the ground for the decision in Hammond v. Mallinson and Bowie [1939] L. J. C. C. R. 357, or, on the other hand, to possession of the offending cattle. I refrain from going further than expressing the view that the strict liability for cattle trespass is attributable to one or the other, if in law they be distinct. I do not think that for the purpose of this case it is necessary to go further because the defendant living in Killarney—nearly 100 miles away from the lands of Mr. Lloyd, where the cattle were agisted, cannot be liable on either view.” Mr. Danaher has argued in this case that the rational basis is that the person who has control of the cattle is the proper defendant in an action of this kind. Mr. Lee has pointed out that difficulty would arise for a plaintiff in determining the nature of the contract between third parties, the terms of which may be unknown to him, and that the Court should not interfere with the rule that the agister who has allowed the cattle to be brought on his lands is prima facie answerable for the damage which is the natural consequences of their escape. I have considered the matter and must confess that the majority of the authorities take the view that the rule in Rylands v. Fletcher (1866) L. R. 3 H. L. 330, applies to cattle trespass. The view expressed by Mr. Williams in his Liability for Animals at page 199, Note 5, that “Liability under Rylands v. Fletcher in some sense presupposes the use of ‘dangerous things’ and the ‘non-natural user of land’—expressions that can hardly apply to the age-old practice of keeping cattle,” does not appear to me to be well founded.
In Rylands v. Fletcher, the Lord Chancellor referred to the ‘non-natural use’ of the land at page 339, and stated:—“On the other hand, if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities or in a manner not the result of any work or operation on or under the land—and if in consequence of their doing so or in consequence of any imperfection in the mode of their doing so the water came to escape and to pass off into the close of the plaintiff then it appears to me that that which the defendants were doing they were doing at their own peril; and if, in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away to the close of the plaintiff and injuring the plaintiff then for the consequences of that, in my opinion, the defendants would be liable.” Later in his judgment the Lord Chancellor says:—“The same result is arrived at on the principles referred to by Mr. Justice Blackburn in his judgment in the Court of Exchequer Chamber where he states the opinion of that Court as to the law in these words: ‘We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequences of its escape. He can excuse *43 himself by showing that the escape was owing to the plaintiff’s default; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule as above stated seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth of his neighbour’s privy or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequence. And upon authority this, we think, is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches.’”
This judgment seems to me to state clearly that if a person, for his own purposes, brings on his land something which was not there before, and that thing is likely to do mischief if it escapes, it is kept on the land at the peril of the person who brings it thereon. Consequently, I am of opinion that if the agister makes a bargain with a third person that he may graze his cattle on the agister’s lands, these cattle have been brought on the lands for his own purposes by the owner of the land and, in the present case, the defendant brought the cattle on to her lands for her own gain, and, consequently, the plaintiff is entitled to succeed notwithstanding the defendant’s contract with another person.
I give a decree for £60 with costs.
Winters v. Owens.
[1950] IR 226
Lavery J. 226
LAVERY J. :
27 July
The plaintiff, Mr. Patrick Winters, took from Mr. Stephen Kearney, as executor of his deceased brother, certain lands at Killineer, Drogheda, for the season, 1948-1949, on what is ordinarily described as a conacre letting. The area taken was, I think, 15 acres, but in this case we are concerned only with one field in which the plaintiff sowed a crop of barley in 2a. 0r. 14p. and crop of oats in 1a. 3r. 18p. Such lettings are very common and their nature is well understood. The conacre tenant acquires a special possession for a particular purpose, the general possession remaining with the landlord. The owner of the land retains the occupation, the conacre tenant having a licence to till the lana and take the crop and a right of entry on, and of use of, the land for that purpose. It is well established, and is not contested, that such a tenant can maintain an action of trespass for damage to his crop.
Special terms may, of course, be introduced into the contract in particular cases.
The defendant, Mr. Owen Owens, for the same season took from Mr. Con Kearney adjoining lands for the purpose of grazing sheep and cattle. Such a letting is generally described as grazing letting and is of the same general character as a conacre letting. Lettings of this kind give the exclusive right of grazing to the holder, and we are not concerned here with contracts where the owner of land takes in for grazing the stock of one or more person at a price per head of stock. The only special terms to which it is necessary to advert are that in the plaintiff’s case nothing was said or arranged as to the repair and maintenance of the fences, whereas in the defendants’ case he said that the owner, Mr. Con Kearney, was “to herd and fence the lands.” Mr. Con Kearney, in evidence, said that he was “to look after the stock and do the herding,” but that “nothing was said about looking after the fences.” He agreed, however, that the appellant was not to do any fencing and he stated the duties undertaken by him to be to count the stock daily and, in his own words, “if they broke out, I’d fence.”
The second-named defendant, Eugene Owens, was, I understand, the son of the first-named defendant. The Circuit Court Judge dismissed the action as against him and he is not concerned in this appeal.
During the winter, 1948-1949, the defendant foddered a number of cattle on the lands, but no complaint is made of trespass by them.
About the 12th May, 1949, the defendant put a number of sheep and lambs on the land. He says, about 27 sheep and 27 lambs, but the plaintiff asserts that the numbers were larger. These sheep and lambs on several occasions broke into the plaintiff’s lands and did serious damage to the crops then in course of growth. These animals were removed after about eight days, according to defendant, but on the 12th June a very large number of sheep, described as wethers, were put on the lands. The defendant says the number was about 107, though, again, the plaintiff says the number was larger. It was not a constant number as the defendant from time to time sold some and bought others, and the evidence of Mr. Kearney is that they were constantly coming and going. The defendant says that all were removed after about eight days, but no precise dates were given, and I am inclined to think they were there for a somewhat longer period. During this period there was constant and serious trespass on the plaintiff’s crops and it is not denied that serious injury was caused, though its extent is in controversy. No complaint is made of trespass after the early days of July.
It is admitted that the fence between the lands was in a bad state and quite inadequate to prevent the passage of sheep.
The plaintiff contends that the intensive grazing of the lands by cattle during the winter and by sheep in such numbers in the spring and early summer left the land so bare and the sheepdescribed by Senator J. T. Magee as”wild Leitrim sheep”so hungry that their trespass on his growing crops was inevitable. He describes them as”roaring with hunger.” There was evidence that the number of sheep was larger than the land could carry, though the defendant contended they were there for such a short period that the grazing was adequate. In any case, there can be no possible doubtcertainly, there is none in my mindthat the conditions were such that the escape of the sheep into the plaintiff’s lands to devour his green and growing crops was inevitable and was, or should have been, obvious to anyone who considered the position.
The plaintiff claims damages for trespass. He does not found his claim on allegations of negligence or want of care; that is to say, he has not brought his action “in case,”but as a common law action in trespass.
The defence, apart from a denial of the facts which was not, save as to the extent of the damage, persisted in, is thus stated in para. 5 of the defence, so far as material: The defendant at all material times was not “in occupation of the lands from which the said sheep escaped or in possession of the said sheep.” Ownership of the sheep by the defendant is admitted.
The legal question so raised is clearly of great and general importance. This system of farming and letting of lands is, and has been for many years, in general use, and, if the question is not well settled by authority and practice, it is strange indeed.
There is no doubt as to the legal position between adjoining owners of land. A. landowner is under no legal obligation apart from special cases of custom or contractto fence his lands so as to prevent the entry thereon of trespassing animals. A landowner is bound by law to fence his land so as to prevent animals escaping therefrom and trespassing on adjoining lands, and he is liable for damage done to his neighbours’ land and crops if he fails in this duty. We need not in the present case consider the special case of trespass from the highway. It is contended, however, that this liability does not fall on a tenant of a grazing letting such as we have here. It is argued by Mr. Bell that the defendant is not owner or occupier and that he has not undertaken by contract any liability to fence; that, on the contrary, his landlord has contracted to perform this duty. The defendant’s liability, if any, can only arise from his ownership of the animals, and such liability, he says, must depend on the possession and control of the animals which, he says, the defendant had not, and on negligence in that control, which, he says, is not alleged. It was proved that in some cases of agistment lettings the owner of the land undertook, as here, the herding of the stock, and that in other cases the owner of the stock did this for himself. In this latter type of case there could be no doubt that the possession and control of the animals remained in their owner. One of the questions to be determined here is the effect of the undertaking by the owner of the lands to herd the stock.
So far as it is a question of fact on the evidence I hold that the defendant acquired a special possession of the land for his particular purpose, which was the exclusive right to graze the lands in such manner as he should think fit, though, no doubt, some limitation against over-grazing which would injure the lands would be implied.
There was a conflict of evidence as to the degree of supervision which the appellant and his sons gave to the stock on the lands. On the one hand, Miss May Kearney said that many a time she would see the Owens there, feeding cattle and going through the sheep and, she supposed, counting them. The plaintiff said the ownerthat is, Mr. Owens, the defendantand his son were there every day, “haying cattle,” during the winter and that he saw them there during the spring, but “they might come late and I might miss them.” The defendant, on the other hand, said that he or his sons would not go out every day but that they would bring hay out to the cattle and, if a customer came, one of them would go out with him, that this might happen four times one week and then, perhaps, not for a month. Having regard to his evidence as to the period the sheep were on the land, it is difficult to explain this absence for a month, unless at times when there was no stock, or only one or two sheep, on the land. I regard the foddering of the cattle as important as showing that the stock generally remained under the care and supervision of the defendant, and I have no doubt that if sheep were missing or sick or needed foddering or other attention the defendant would have looked after the matter. Mr. Owens would, I think, have been very surprised if he were told that he had not possession and full control of his sheep, notwithstanding that Mr. Con Kearney had undertaken to check and count them daily.
In my view the obligations undertaken by the owner of the land to herd was as agent for the owner of the stock.
This conclusion of fact would distinguish the present case from the case of Dalton v. O’Sullivan (1), where Circuit Court Judge O’Briain held that the owner of cattle who had placed them on lands of an agister in pursuance of an agistment agreement was not liable for damage caused by the cattle which escaped and caused damage to the property of a neighbour. The report of the case does not set forth the terms of what is referred to as an agistment agreement, and it may be that its terms did not differ materially from those of the contract in the present case; but from the Judgment of the learned Circuit Court Judge I would infer that there was the essential difference that the cattle there passed into the possession and control of the agister. At any rate, the Judge so found and it was this finding which was the basis of the decision. Given his findings of fact I by no means dissent from the conclusion of Judge O’Briain in his careful and learned Judgment, though it is unnecessary for me to decide the issue which he then had to decide.
In a later case, before the same Circuit Court Judge, Noonan v. Hartnett (2), the facts so closely resemble those in the present case as to be indistinguishable. The plaintiff, however, brought his action against the owner of the land, and the learned Judge held he was liable. The decision does not cover the present case and therefore it is unnecessary for me to express an opinion on it. I recognise, however, that the contract in question was similar to that in the present case and is described by the Judge as “in the nature of an agistment contract.” There is authority, apart from this decision, that the owner of the land may in these cases be liable, but it does not follow that the owner of the stock may not also be liable.
In Hickey v. Cosgrave (3) the contract was a special one where the defendant had the pasturage of the plaintiff’s land and his cattle broke into the plaintiff’s garden and did damage. The observation of Pigot C.B., at p. 255, that “the person whose cattle are agisted does not own the ground, it would be absurd that he should be compelled to make fences where there is no obligation,” is certainly true, but does not cover the liability of the owner of cattle, who has, at least, certain possession and control.
I may refer to the case of Wellaway v. Courtier (1). There the plaintiff and the defendant were the purchasers, the plaintiff, of a crop of growing turnips, and the defendant of a crop of grass, from the same tenant farmer. A condition of the sale of the turnips was that the plaintiff should not remove more than half of them, the other half having to be consumed on the ground. The sheep escaped into the turnip field and damaged the crop. The plaintiff was held entitled to maintain damage for trespass, notwithstanding the limitation on his right to dispose of the crop.
I find the following statement of the law in de Moleyns’ Landowner’s and Agent’s Guide, 8th ed., at p. 240, a textbook sometimes treated lightly, but the work of a writer with a very wide practical experience of land questions in Ireland:”The owner of the land is liable for all injuries to his neighbour by trespass of the agisted cattle through defective fences” [for this proposition a number of authorities are given]; “but, while thus liable to his neighbours for the consequences arising from the mode in which he takes his profits, the owner of the cattle is also liable to them, as the animals, in contemplation of law, continue in his possession, though grazing on the land of another.”
The net question for decision is the liability of the owner of animals remaining in his possession for damage done by them, apart from liability arising from the ownership of land from which they have escaped.
The law was thus stated by Williams J. in the well-known case of Cox v. Burbidge (2) in a passage which has been often quoted with approvalnotably by Atkin L.J. in Menton v.Brocklebank (3):”I apprehend the general rule of law to be perfectly plain. If I am the owner of an animal in which by law the right of property can exist, I am bound to take care that it does not stray into the land of my neighbour; and I am liable for any trespass it may commit and for the ordinary consequences of that trespass. Whether or not the escape of the animal is due to my negligence, is altogether immaterial. I am clearly liable for the trespass, and for all the ordinary consequences of the trespass, subject to a distinction which is taken very early in the books, that the animal is such that the owner of it may have a property in it which is recognisable by law. For instance, if a man’s cattle, or sheep, or poultry, stray into his neighbour’s land or garden, and do such damage as might ordinarily be expected to be done by things of that sort, the owner is liable to his neighbour for the consequences.”
I do not overlook the apparent inconsistency of the statement that the owner is “bound to take care that the animal does not stray” into the land of the neighbour, with the statement that his negligence “is altogether immaterial.” I think, however, that they can be reconciled. Somervell L.J. observed in Sutcliffe v. Holmes (1):”The owner of livestock is, according to English law, under a duty to keep it from straying on to the lands of others. The duty is not absolute, but it is more than a duty not to be negligent,” and he cited Fletcher v. Rylands (2).
The owner of a straying animal is not liable if the escape is due to something unavoidable, and he will have an answer to a claim for damage done if he can show that the plaintiff was under a duty owed to him to fence so as to keep out straying animals. These are matters of defence to be established by the defendant and in that sense the duty is not absolute. No such defence is established in the present case. Whatever obligations to fence may have rested on the respondent or the appellant towards their respective landlords, there was no such duty between themselves, and it is such a duty which alone would excuse the trespass: see Holgate v.Bleazard (3).
The right of the owner of land to take and keep straying animals damage feasant, irrespective of where they have come from, as an alternative to bringing an action of trespass, illustrates the responsibility of the owner. I may also refer to the statutory jurisdiction given to Justices by the Summary Jurisdiction (Ir.) Act, 1851 (14 & 15 Vict., c. 92) s. 20, sub-s. 3, to award against the owner of trespassing animals not only the nominal rates of trespass provided for by the section, but also “in any case where any actual damage shall have been done by such trespass . . . a like payment of such further sum as, together with any rates awarded, shall be equal to the value of such damage as shall be proved to their satisfaction to have been actually caused by such trespass.”
In my opinion the defendant is liable for the damage caused, and the special defence fails.
The damages are the difference between the value of the crops, as realised, and the value of the estimated yield if the trespass had not occurred.
The actual yield and its value is clearly proved.
The barley crop was 17 barrels and the price 57s. 6d. per barrel
£48 17 6
The oats crop was 11 barrels and the price, 32s. per barrel
17 12 0
——-
Total value £66 9 6
The value of the estimated yield is more difficult and, as it is purely an estimate, it is not surprising there should be a wide divergence of opinion. A great many factors enter into consideration, the quality of the land, the manner of cultivation, climatic conditions of the season, and so on.
That plaintiff and Senator McGee estimated the yield which should have been obtained of barley crop at 20 barrels to the acre, giving 40 barrels, approximately, for the area of 2a. 0r. 14p. and Senator McGee allowed for a loss of half the crop (in fact, the yield was less) giving a loss of £57 10s. 0d. Senator McGee estimated the oats yield should have been 35 barrels, and, again, a loss of half the crop, that is, of 171/2 barrels (in fact, the yield was less) and made the loss, £30 12s. 6d. I have not calculated this; I think he took a different price. On the basis of the actual barrellage Senator McGee made the loss:
On barley £66 2 6
On oats 36 0 0
On straw 4 0 0
——-
£106 2 6
Senator McGee who inspected the lands on the 11th July, 1949, said the crop, both of barley and of oats, was universally attacked, with the tracks of stock all over it where the stock had eaten the crop and lain and rolled in it.
Mr. George Taaffe, also a valuer of great experience, inspected the lands on the 29th June, 1949, and says he found an average crop, eight inches high; that the barley was clipped by sheep in two circular spots, eight feet to nine feet in diameter, but no other observable damage to that crop. He found the oats clipped by sheep to the extent of two-thirds of the area, but there was then no sign of shooting ears. He described the quality of the land as rather poor and estimated the barley should have yielded no more than 12 barrels to the acre and the loss as no more than a stone of barley. He allowed £2 10s. 0d. for what he called “invisible damage.”
The oats yield he estimated at 16 barrels to the acre, and a loss of 4 barrels on 1 rood and 4 barrels loss on 2 roods
and 21/2 barrels loss on the remaining 2 roods, being a total loss of £16 16s. 0d. on oats. His evidence was corroborated by his partner, Mr. Kavanagh, and by an employee, Mr. Peter Byrne, who saw the crop at a later date, on the 28th July, 1949, who added that, of the barley, practically nothing was damaged, and of the oats, just a rood with odd areas here and there. These estimates were not relative to the actual yield.
It is very difficult for me to determine the loss as between these two very divergent accounts.
I am satisfied that there was during May and June and, probably, in early July, persistent trespass by large numbers of sheep. The damage of such trespass at that period of the year must in my opinion have been serious. The Circuit Court Judge fixed the damages at £56, but I do not know how he calculated that sum.
Realising that it is little more than a guess, I would allow a loss of 10 barrels of barley, at 57s. 6d. per barrel, which would give £28 15s. 0d., and a loss of 20 barrels of oats, at 32s. per barrel, which would give £32, making the total loss, £60 15s. 0d. This is practically the figure which the Circuit Court Judge reached and I do not propose to vary his decree for £56, which will be affirmed.
Cunningham v Whelan
Circuit Case.
1 January 1917
[1918] 52 I.L.T.R 67
Molony L.J.
This civil bill was brought by the plaintiff to recover damages for personal injury, and raises an interesting question as to the liability of owners for cattle straying on the highway. There has been no great conflict of evidence in the case, as no person representing the defendant was present, or had any knowledge of the occurrence at the time. According to the evidence of the plaintiff, he was proceeding in an empty cart from Ballynahanagh to Kilmacthomas, and when he was going along the public road he saw 24 bullocks and heifers, the property of the defendant, some distance in front of him: There was nobody in charge of them, and when he came near he slowed down his horse and came to a standstill, but notwithstanding this the bullocks and heifers pressed in on the cart, upset it, and threw him out, and thereby damaged the cart and injured the plaintiff. John Walsh was examined on the part of the defendant, and said the defendant had land adjoining the roadway, and that it was most likely the cattle had got on to the highway through the gate, which was open. It is not necessary to discuss how the cattle were on the roadway, as it is admitted they were there when the plaintiff came up, and that nobody was in charge. Now, in these circumstances, what is the liability of the owner of the cattle, apart from the Petty Sessions Act or from the Highway Acts, as they are in England, in respect of cattle straying on the highway? There is abundant authority for saying that, apart from an animal of a vicious propensity, there is no liability on the owner of cattle for the mere trespass of an animal on the highway. He is liable for proceedings summarily for trespass of cattle on the highway: but the mere fact of the animal being on the highway and not known to be of a vicious propensity does not create liability in respect of the animals for the mere act of trespass. The ordinary rule is well illustrated in the case of Jones v. Lee, 106 L. T. R. 123. In that case a young horse escaped owing to a defective hedge on to the highway, and caused injury to a motorist. The County Court Judge held *67 that the horse was not vicious, and the defendant was not liable, and this decision was affirmed on appeal. Bankes, J., stated that “by common law the owner or occupier of land adjoining a highway is under no duty to fence, so as to keep his animals off the highway.”Jones v. Lee was, in the same year, considered by the Court of Appeal in the case of Ellis v. Banyard (106 L. T., p. 51, C. A.). In that case the plaintiff was cycling along the highway and was injured by a cow the property of the defendant, which had strayed on to the highway from the adjoining lands of the defendant through a gate, which had been left open by the defendant. The County Court Judge held that the opening of the gate was evidence of negligence. That, of course, would be a decision on the main facts in favour of the plaintiff here; but when it went to a Divisional Court the judges differed, because Mr. Justice Horridge adopted the view of the County Court Judge, and Mr. Justice Phillimore said it should be shown that the opening of the gate should be proved to be an act of his servant. In the Court of Appeal all the three judges entered judgment for the defendant, and adopted the judgment of Bankes, J., in Jones v. Lee. We have here to deal with the negligence of not a single cow, but of 24 cows, being on the highway at the same time, and the accident being the result of these 24—not one or two, but of the 24 being there together. There is no doubt that if in the ordinary course the plaintiff was going along the roadway if there were two or three cows he would have escaped injury—the cows would have gone to one side or the other, and nothing would have happened. But in consequence of the cows being there in one mass when he came up to them, and they dispersed, their combined force was sufficient to upset the cart. But when you are dealing with the combined mass, sufficient in themselves by their impact to overturn the cart, then we must see the difference between such a case and Ellis v. Banyard. Well, that very point was dealt with in that case. Lord Justice Vaughan Williams (p. 52) said: “At the same time I am far from saying that it is impossible that a man should be sued for putting his cattle in such a place or position that the natural result is that they go out of that place or position and, if in large numbers, obstruct the highway, and cause damage to those who use it.” Kennedy, L.J., in the same case said: “I should be also slow to infer that because a harmless cow or sheep is allowed to get into the highway without giving rise to a cause of action, that rule applies to crowds of cattle, whose mass might constitute an obstruction to travellers along the highway.” There may be a case of duty arising in the case of a mass or number, even of the most “harmless animals, which would not apply where it was only the case of a single animal.” Both Jones v. Lee and Ellis v. Banyard were considered by the Court of Appeal in Heath’s Garage, Limited, v. Hodges, [1916] 2 K. B. 370, where it was again laid down in express terms that an owner or occupier of land adjoining an ordinary highway is not bound to fence it, so as to prevent harmless animals like sheep from straying on the highway. Pickford, L.J., refers to the observations above quoted of Vaughan Williams and Kennedy, L.JJ., and suggests that the distinction may be that although a single animal may probably so act as to cause an obstruction, it will not necessarily do so, and whether it so acts or not depends upon its own will, and that, therefore, the owner cannot expect an obstruction to be the natural consequence of its straying; whereas, in the case of large numbers, the obstruction is inevitable merely by reason of the numbers. It is, I think, clear that while, in ordinary circumstances, an owner is not bound to prevent his cattle or other domestic animals from straying on the highway, he is bound to use such care or caution that they will not stray in such numbers so as to render the highway positively unsafe or dangerous to those who use it. If he omits to do so, and allows his cattle to wander or be there, it is a breach of duty on his part, and if that breach is the approximate cause, he is liable. I am satisfied that no damage would have occurred if it were only a single cow, or two or three, but here it was caused by “a mass” of cattle, to use the words of Lord Justice Kennedy, forming an obstruction and danger to travellers on the highway. Now, the only possible suggestion to negative the liability of the defendant was that this man might have got off and led his horse, or might have driven the cattle away; and I daresay it is true that if he had done so, and walked his horse along and waited for the cattle to disperse at one side and the other, nothing would have happened; but still, it was not unreasonable for him to act as he did. While it is clear that an owner is not liable for the consequence of a harmless animal straying on the highway, I hold in the present case that the defendant is liable by reason of the mass of animals forming an obstruction of the highway, and thereby causing the damage, and I affirm the decree.
Howard v. Bergin, O’Connor, & Co.
[1925] 2 IR 118
Johnston J. 118
KENNEDY C.J. :
On the 7th November, 1923, between 1 and 2 o’clock in the day, the plaintiff, a girl then aged about fifteen and a half years, was walking along Lord Edward Street, on the footpath, in the direction of the city, when a bullock coming up behind her, struck against her left shoulder (that nearer the roadway), and knocked her down into the roadway. The collision occurred with such suddenness and violence that the plaintiff sustained very severe personal injuries involving a serious surgical operation and treatment, which has been successful, though there remain some minor consequences which may be permanent. The bullock was the property of the defendants, who are cattle-salesmasters. The action was brought to recover damages for the plaintiff’s injuries alleged to have been suffered by reason of the negligence of the defendants or their servants in the driving and care of the bullock on the public highway. The surprise of the whole thing and her sufferings were sufficient to deprive the infant plaintiff of an opportunity to take in the surrounding circumstances, while the only eye-witness who gave evidence at the trial was a woman who was a short distance away and was also struck by the bullock. The plaintiff’s advisers, when preparing her statement of claim, had not the whole facts before them, and, not unnaturally, assumed that the bullock was in charge of a drover at the time and place of the occurrence, and, in their particulars, attributed the alleged negligence to the imaginary drover. The facts, however, which were proved at the trial were as follows:
The defendants bought seventeen head of cattle in Roscrea. They were taken in charge by a Mr. O’Connor on behalf of the defendant firm. He had them driven through the town of Roscrea to the railway, where they were loaded in two railway waggons and despatched to Kingsbridge. Eight of the animals were put in one waggon and nine in the other. Three men took part in the bringing of the cattle to Roscrea station and the loading of them into the train. Mr. O’Connor stated in his evidence that there was no difficulty in loading the cattle and that “he saw nothing flighty in them.” He said he would like to have three men at the unloading of them. The two waggons were attached to a passenger train which arrived at Kingsbridge station at 11.30 in the forenoon of the day of the happenings we are considering. The defendants sent their foreman drover, John Nugent, to meet the train and receive the cattle. Nugent, who gave evidence on behalf of the defendants, was the most important witness at the trial. He had been the defendant’s foreman drover for a number of years, and accustomed to dealing with cattle. Nugent brought with him one drover only, a man named James Hannon. I will now read Nugent’s evidence as to what occurred at Kingsbridge:”When we got to Kingsbridge at about 11.30 a.m. we went to the passenger platforms. The two waggons were drawn up. A train was shunting out with the waggons. We got two waggons of cattle at the departure platform. We got eight cattle out of one waggon. They came quietly. When the nine cattle were let out, the black and the red bullocks got wild on the platform. They ran up on the plots. James Hannon and a porter turned them back. I was standing at the gate. They burst out and ran past Kingsbridge down the quays. The other cattle turned up Kilmainham Road. I got before them, and I and James Hannon drove the fifteen cattle down the quays. We had no sign of the two cattle. We drove the fifteen down the quays and across Watling Street Bridge and on to Prussia Street. I met a drover called Heffernan in Prussia Street. He was a casual acquaintance. He went off in search of the two cattle, and I said to him to come back and tell me if he could find the cattle, so that I could go down with more cattle to bring them back quietly. Heffernan came back to me, and I sent James Hannon and Heffernan with a bunch of cattle to bring back the strayaways. When they got there the strays were gone. I saw the red beast when it was brought back to the yard. I never saw the black one again.” It appeared, and is not questioned, that this black bullock was the animal which caused the plaintiff’s injuries. Its age was not stated. It was said to be without horns. On cross-examination Nugent said:
“I am foreman drover of the defendant firm. I was in control of the unloading of the cattle. These cattle waggons were attached to a passenger train. There is a cattle bank for the unloading of the cattle at Kingsbridge. There are strong wooden fences to prevent the escape of cattle when they are being unloaded. We have to take precautions when unloading. They are liable to take fright when they are being unloaded. I was entirely in charge of the unloading of the cattle, and not the Railway Company. If the waggons were not in a suitable place for unloading, it would be my duty to request the Railway Company to put them at a suitable place. This was on Wednesday. The cattle market is on Thursday. These were intended for the market on the following day. I was anxious to get them up as soon as I could and give them a good rest before the market. At this place there were no pens at all. They were unloaded on to the passenger platformthe departure platform. This platform was not under the roof, but was further out. It was on St. John’s Road or Military Siding. There is a gate near the platform leading out on to St. John’s Road. It was through this gate that the two bullocks escaped. I was standing at the gate. It is a gate that can be closed. It moves on wheels and can be closed very easily. I did not close the gate. I used the stick to stop them. I and James Hannon were there. There are vegetable plots near the Siding. There was cabbage in the plots. Re-examined:When these animals get out of the trucks they are frightened? I never had a case like this before. The cattle bank is a mile away. It is the usual practice when cattle are brought in on passenger trains to unload them at St. John’s Road. There is a wall round the place and a gate. I did not close the gate.”
Hannon, the drover, also gave evidence for the defendants. He said that the two bullocks, after he had driven them back from the plots, “went straight through the other cattle. No two men could have stopped them. I’ve seen cattle fidgety and restless, and I never saw cattle as restless as these before.”
He stated that cattle on passenger trains would not be put off at the cattle bank. He expressed the opinion that “it would take a bigger man than Nugent to close the gates.” He said:”There was no place to close up the fifteen to go after the two.” O’Connor, Nugent, and Hannon were the only witnesses examined for the defendants. Two witnesses were, however, examined for the plaintiff, whose evidence showed the movements of the bullocks after they bolted from the Kingsbridge railway station. A man named O’Hara, who carries on a grocery business in Chancery Street, saw them running up Bull Lane which is a cul-de-sacat the head of which a man named Kelly, who deals in metal goods and general stores, has a yard. A few minutes later O’Hara saw a drover come to the place. The drover, who appears to have been James Heffernan, referred to by Nugent, said he would go and get other cattle to keep them quiet. A few minutes after he had left, the two animals rushed back down the lane towards the quays. The drover returned with four or five head of cattle in about twenty minutes. Kelly related that the two bullocks, one black and one red, came into his yard where they did some damage, for which he has been compensated. He drove them out of his yard “to save his stuff from being smashed up.” He followed them. They separated when they reached the quays. The black one went up Winetavern Street, and so reached Lord Edward Street. Kelly followed the red one, and, having discovered where it had escaped from and to whom it belonged, brought it to the defendants. He did not recollect seeing any drover.
The action was tried by Johnston J. with a common jury. At the close of the plaintiff’s case and again at the close of the defendants’ evidence, the defendants’ counsel asked for a direction on the ground that there was no evidence of negligence to go to the jury. The Judge put to the jury and took their findings on five questions, and allowed the case to stand for argument. The questions and findings were as follows:
“1. Was the bullock which knocked down and injured the plaintiff the property of the defendants? Answer: Yes.
2. If so, was the said bullock at the time of the occurrence on the public street unattended by any servant of the defendants? Answer: It was not.”
Note.It was admitted and agreed by both parties here that this answer should read “it was,” the jury having mistaken the word “unattended” for the word “attended.”
“3. Did Nugent and Hannon take proper precautions at the unloading of the cattle at Kingsbridge to prevent them escaping on to the public street? Answer: No, inasmuch as the cattle should have been unloaded at the proper cattle unloading bank.
4. Were the defendants’ men guilty of negligence in not following the escaped bullocks and getting them under proper
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Kennedy C.J. 123
Supreme Court.
control? Answer: No. If we regard Heffernan as one of the defendants’ men we consider he was guilty of negligence in leaving the bullock at the yard.
5. What damages? Answer: 250.”
The case was subsequently argued on these questions and findings, whereupon the Judge gave judgment for the defendants with costs. He has stated his reasons in a written judgment. The plaintiff now moves by way of appeal to have that judgment set aside and to have judgment entered for her for 250, or, in the alternative, for a new trial.
Johnston J. in a learned judgment, in which he reviewed the authorities, held that the bullock was an animal mansuetae naturae, and was not proved to have had a vicious propensity to the knowledge of the defendants, or at all, and, therefore, that the defendants were not liable for an injury caused by it while wandering on the highway. He said as to the third question that the finding of the jury was a finding that the defendants did take proper precautions at the actual unloading coupled with an expression of opinion that the unloading ought to have taken place at another place, but that this latter matter could not have been left as a question on the evidence.
As to the answer to the fourth question, he said that there was no evidence that Heffernan was in the service of the defendants, certainly not employed to do more than ascertain where the bullocks had strayed to and report to Nugent. He took the fourth answer as a finding for the defendants.
The facts in the case are simple, and, apart from the question of negligence, are not in dispute. The whole evidence as to what occurred at the Kingsbridge railway station was given by the defendants and accepted by the plaintiff. It is, therefore, common case that the black bullock which caused the injuries to the plaintiff, on being unloaded “got wild on the platform,”ran up on the adjoining plots, was driven back by the defendants’ drover with the help of a railway porter, and then rushed out from the railway premises on to the public road, through an open gate by which the defendants’ foreman drover was standing. No servant of the defendants pursued the animal to recapture it. It continued its course through the streets of the city, until it struck the plaintiff. It did not attack the plaintiff. It did not attempt to gore or toss her. (The evidence is that it was without horns.) In its wild flight it collided with the little girl as it also collided with the witness, Rosanna Whitty.
The case on the evidence differs from the case on the pleadings, which, I think, should have been amended at the trial. Having regard to the evidence given by the defendants, and to the course of the trial and the arguments before the trial Judge, and to the argument in this Court, we must, in my opinion, take it to be admitted and assume (as counsel on both sides have assumed in argument) as if the jury had formally so found,
[1925]
2 I.R. Howard v. Bergin, O’Connor, & Co.
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Supreme Court.
that the bullock which injured the plaintiff, as soon as it was released from the railway waggon, got wild on the platform, and in that wild state rushed out of the railway premises on to the public streets, and that the defendants’ servants, Nugent and Hannon, were fully aware of its condition of wildness from the moment it came out of the waggon.
We have the further admission of Nugent, speaking from his experience, that it is necessary “to take precautions when unloading. They are liable to take fright when they are being unloaded.”
It could not be, and was not suggested that the bullock was at any time after its escape from the railway station in the character of an animal being lawfully driven along a public highway or street, and, in my opinion, decisions relating to that state of facts have no direct application to the admitted facts of the present case.
The main line of argument presented with great force by Mr. Fitzgerald for the defendants was that by the common law there is no duty on an owner of cattle, being of the class of animals mansuetae naturae, to fence or otherwise keep them off the highway, and that if they stray and do damage he is not liable unless he had knowledge of a mischievous propensity in the animals, against which alone he should take precautions. Mr. Fitzgerald relied very strongly on Heath’s Garage, Ltd.,v. Hodges (1). The argument assumes the absence of a mischievous propensity from the black bullock, or, alternatively, that such propensity (if any) was not proved to be known to the defendants. This argument of course proceeds on the assumption that the wild state of the bullock before its escape was not a “mischievous propensity,” an assumption which also underlies the judgment of Johnston J.
It appears to me that the argument and the judgment proceed upon the further assumption that the “mischievous propensity”mentioned in the reported cases means something of a chronic character, though it may be only intermittently active, in the nature of a particular animal. In my opinion, however, what is called a “mischievous propensity” may be as well a passing or temporary phase of the character or temper of the particular animal as a chronic or permanent element of its nature. If this opinion needs any authority to support it, reference may be made to, inter alia, Turner v. Coates (2); Manton v. Brocklebank (3).
Moreover, the expression “a mischievous propensity” is not, in my opinion, to be limited to mean only what may be termed a “specialised propensity,” as for instance in the case of a particular horse, generally mild, but with a special propensity in certain circumstances to kick, or, in the case of a bull which has acquired what in view of the famous dictum of Blackburn J. must be described as an idiosyncrasy which impels him to gore. I understand by the expression “a mischievous propensity,”a propensity to do mischief, a tendency to do harm or cause injury, whether, in one case, by some single characteristic action such as kicking or goring or biting or, in another case, generally, when mischief may be done in any of a variety of ways. As an example of the latter, or general propensity to mischief, take the case of an ox, ordinarily mild, brought to slaughter. It is said that the animals show an instinctive revulsion from the smell of the slaughter-house and often become wild. In my opinion if a beast, having become maddened in such circumstances, were allowed by the butcher to escape and run amuck in a crowded street, the butcher must be held to know that the beast was abroad with a mischievous propensitythat is to say, with a general propensity to mischief, though acquired only in the very surroundings from which it had escaped. I think that this view is an element of the ratio decidendi in such cases as Turner v. Coates (1).The judgment of Atkin L.J. in Manton v. Brocklebank (2)is to be considered in this connection. Mr. Fitzgerald’s argument must logically result in a denial of any responsibility in law on the part of the butcher in the case I have put. I am satisfied that no such immunity is given by the law.
Now, in the case under appeal, the black bullock on emerging from the railway waggon displayed its wild condition to the defendants’ servants in such a way as, in my opinion, to deprive them of the benefit of the doctrine of “the primâ facieharmlessness of domestic animals as frequenters of the highway”(so put by Neville J. in Heath’s Garage, Ltd., v.Hodges (3)). The animal had to the knowledge of Nugent and Hannon become “an exception to its class” (the phrase is that of Willes J. in Cox v. Burbidge (4)), and the duty of controlling it as though it belonged to the class of animals ferae naturaehad fallen on the defendants and their servants: Cox v.Burbidge (5); Manton v. Brocklebank (6); Turner v. Coates (7).The bullock had acquired a propensity to mischief, and it “did exactly the damage which the owner must have anticipated it would do if the circumstances arose, which in fact arose in this case” (see per Bailhache J. in Turner v. Coates (8)), that is to say, it dashed blindly along colliding with or overturning human impediments to its wild progress.
Apart from the defendants’ knowledge of the mischievous propensity actually acquired by the animal before the escape, which, in my opinion, takes them out of the defined immunity given to owners of domestic animals, it is to be added that they had prior knowledge on their own admission of the tendency of cattle when being unloaded from the railway to get frightened and to become wild and restless.
I will now consider the case in the view that the claim has been based on negligence only. The third question put to the jury and the answer to that question have been interpreted by Johnston J. as a finding that the defendants did take proper precautions at the actual unloading at the Military Siding coupled with an expression of opinion that the unloading ought to have taken place at another place, namely, the cattle bank. I regret to say that I am at a complete loss to understand how the learned Judge arrives at this interpretation of the finding. It appears to me that the jury have found in the plainest terms that, inasmuch as the cattle were unloaded at the passenger platform and not at the cattle unloading bank, the precautions taken or arrangements made for the unloading (which might have been sufficient and proper at the cattle bank) were not sufficient or proper precautions at the actual place of unloading, and, accordingly, the answer to this question is, in my opinion, a finding of negligence against the defendants.
Such a finding of negligence is amply supported by the evidence. At the cattle bank there are pens for “bunching” the cattle as they come out of the waggons, which enables control to be established over the animals before they are driven out on the public road. There are no such pens at the Military Siding where the defendants knew the animals would be discharged, and, in fact, caused them to be discharged by sending them by passenger train. The defendants’ witnesses said that cattle are liable to take fright when being unloaded. Only two men were sent to take the cattle from the train. The defendants’ witness, O’Connor, said in his direct examination that he “would like to have three men at the unloading of them.” Hannon said in his direct examination that “no two men could have stopped them.” Further, we have it proved by the defendants that, opposite to the waggons as they were unloaded, there is a gate leading on to the public road, and that this gate was open; that Nugent stood by it; that it is a gate which moved on wheels, and can be closed very easily, but that Nugent did not close it, and the bullock escaped through it. There is, therefore, evidence to support a finding of negligence both at the earlier stage, namely, at and prior to the actual unloading, and at the later stage, namely, when the bullocks had become wild.
With regard to the fourth question, in answer to which the jury found that Heffernan was guilty of negligence, but negligence which cannot be brought home to the defendants for want of a finding that Heffernan was a servant of the defendants, I must respectfully disagree with the learned Judge who did not put that question to the jury on the ground that “there was no evidence that Heffernan was in the service of the defendants.” Nugent was, on his own evidence, in complete charge of the business of transferring the cattle from the railway to the defendants’ premises, and he was their regular foreman drover. In my opinion it was open to the jury to find on the evidence that Nugent had authority to obtain further assistance in such circumstances as arose here, and that he did within such authority enlist the services of Heffernan for the recapture of the bullocks. In my view of the third finding, however, the plaintiff will not suffer by the gap which defeats the fourth finding.
The suggestion that the action of Kelly, who, when he found the two bullocks smashing up his goods, drove them out of his yard, was a novus actus interveniens which broke the chain of causation and cut the plaintiff off from remedy against the defendants could not be seriously pressed. It is too clearly ruled by the principle of Scott v. Shepherd (1). Actually, in that famous case, the analogy is made in one of the judgments with the ease of a mad ox turned loose in a crowd, and in another of the judgments with the case of the diverting of the course of an enraged ox.
I am of opinion, therefore, that this appeal must be allowed with costs, and the judgment entered by Johnston J. for the defendants must be set aside, and that in lieu thereof judgment should be given for the plaintiff for 250 damages on the findings of the jury, with costs of action.
O’CONNOR J. :
This action was brought to recover damages for injuries occasioned to the plaintiff when walking on the footpath in Lord Edward Street, Dublin, by being knocked down by a bullock which belonged to the defendants, and which at the time of the occurrence was at large and unattended. Two defences were raised:That there was no negligence; that even if there were negligence, it gave no cause of action under the circumstances.
The case is an important one for the public and of interest for lawyers.
The material facts are these:The defendants are cattle salesmen who carry on business in Prussia Street, Dublin, where they keep cattle-yards. They bought in Roscrea, in County Tipperary, seventeen head of cattle, and caused them to be entrained there for delivery at Kingsbridge, Dublin. At Kingsbridge there is a special place for unloading cattle with special arrangements for the purpose. One of these is the provision of strong wooden fences constructed so as to prevent the escape of cattle when being unloaded. The purpose is obvious, and, indeed, was admitted. Cattle on being unloaded after being pent up in trucks during a railway journey are inclined to break loose and get scattered, and it is all-important to keep the entire consignment bunched together as they are being driven from the unloading place. If they are let loose immediately on detrainment the leaders may be well ahead of those in the rear, and it would be impossible for the drovers usually employed to guide and control the lot. Further, if cattle are kept well together they go more quietly and are more easily driven and managed.
According to the evidence given at the trial all cattle trains that is, trains which contain cattle onlyare brought to the landing place I have mentioned, and there unloaded. But cattle are sometimes carried in trucks which are attached to passenger trains, and these trains are brought to the ordinary passenger platforms. Such trains are, as I understand, so composed that the cattle trucks are at the end of the train. When the train is brought to a stop, while the passenger carriages and usual luggage vans are actually brought into the covered terminus, the cattle trucks behind are left outside, just at the end of the platform, where there is an extended place where live stock may land.
The cattle in question were transported to Kingsbridge in trucks attached to a passenger train. These trucks when the train stopped were opposite to the enlarged space I have mentioned. This space is enclosed by a wall with a gate capable of being closed. The evidence is that this place is frequently used for unloading cattle which come by passenger trains. There are there no fences such as are provided at the usual place for unloading cattle, but the enclosing wall and gateway, if closed, serves the purpose, because the cattle could be”bunched” before being driven out.
The defendants’ cattle were in two trucks, and on arrival were taken in charge by John Nugent, the defendants’ foreman drover. His evidence is all-important, and I think that the whole case turns upon it. He said: “There is a cattle bank for the unloading of cattle at Kingsbridge (he is here speaking of the place for unloading cattle trains). There are strong wooden fences to prevent the escape of cattle when they are being unloaded. We have to take precautions when unloading.They are liable to take fright when they are being unloaded.”In this part of his evidence he shows the necessity for the pens. He then goes on to say: “I was entirely in charge of the unloading of the cattlenot the Railway Company. If the waggons were not in a suitable place for unloading it would be my duty to request the Railway Company to put them at a suitable place.” Then, as I understand his evidence, he gave an explanation why he did not require the waggons to be drawn to the proper landing place. He said: “This was on a Wednesday. The cattle market is on Thursday. These were intended for the market on the following day. I was anxious to get them up as soon as I could and give them a good rest before the market. At this place there were no pens at all.” In other words, he made no objection to the place where there were no pens, the advantage of which he recognised, because he could get his cattle home sooner. Now, let us see whether, having dispensed with the pens, he took precautions, which he said were necessary, because cattle take fright during unloading. There were no pens, but there was at the actual unloading place what served the purposes of a pen. There was a wall enclosing the place with a gate in it capable of being closed, and which, he said, “can be closed very easily.” If that gate were closed no cattle could have escaped. What happened? The two trucks were unloaded. Two of the cattle were excited, and dashed wildly about. The foreman drover stood at the gate to guard it, but the two cattle dashed through and escaped. Now, by standing at the gate he showed that he thought it required to be guarded. The observation is open that the obviously effective way of guarding it was to close it, and that it would not be an unreasonable opinion to form that the foreman drover did not take proper precautions having regard to his own evidence about the likelihood of cattle taking fright on being unloaded and the necessity for pens.
The two cattle escaped into the City. The foreman drover and an assistant named Hannon remained with the remaining fifteen, as, indeed, I think they were obliged to do, because they could not abandon fifteen on the chance of reclaiming two. These two men drove the fifteen cattle down the quays, and no doubt they hoped to overtake the two which bad escaped. They did not do so, and, meeting a drover named Heffernan who was known to Nugent, the latter asked him to search for them, and when he had found them to come back to him in order that he might go to them with more cattle and bring them back quietly. Heffernan went off and found the missing cattle in a yard in Bull Lane. Having located them there, he left them and returned to give the information to Nugent. Meantime the owner of the yard found the cattle on his premises doing damage to his property, and turned them out on the public street. Left there, they again proceeded to wander, one of them found its way to Lord Edward Street, and there knocked down the plaintiff on the footpath, inflicting on her serious injuries. It is very unlikely that there was any vicious attack by the animal. It is much more probable that it was running in a state of frightthe state which one would expect any animal to be in, which was taken from green fields and found itself in the unaccustomed surroundings of a city thoroughfare.
Putting aside for a moment the question of negligence, I will address myself to one of the points made by the defendants’ counsel, viz.:That the damage done to the plaintiff was not the natural and probable consequence of the escape.
It is, no doubt, true that the defendants’ or their agent could not possibly have foreseen the special accident which is complained of; but it is equally true that anyone allowing a bullock absolutely fresh from the country to wander at large in a crowded city thoroughfare ought to know that anything might happenthe knocking down of an old man, the overturning of a perambulator, a dash into a china shop, or any other mishap impossible to specify. In the present case the mishap was the collision of the beast with the plaintiff. That belonged to the class of things anyone would have apprehended from the escape. But then it was urged that the mishap to the plaintiff was not caused by the escape from the railway premisesthat that originating cause had spent itself when the offending animal found an asylum in Kelly’s yardthat, there, the chain of causation had stoppedand that he, a novus interveniens, by driving out the two cattle started them on an entirely new career of dangerous activity. It appears to me, however, that his action was in law identical with that of the intervening squib-thrower in Scott v. Shepherd (1). As the result of the original escape the cattle found their way to Kelly’s private yard where they were playing havoc with his goods, and he drove them outjust as the intervening squib-thrower got rid of the squib. Indeed, in the adventures of a wandering beast there is always the likelihood of aninterveniens. A bullock is seen rushing down a street and a man with a stick may stop him. It may then divert to another course, from which he may be driven by the shouts of boys, and so on. These interferences are only the natural incidents proceeding from the original escape. They may mark twists and turns, but they do not mark breaks in the chain of causation.
I hold, then, that the final event in the bullock’s career, that is, the knocking down of the plaintiff, was the natural consequence of the escapethat that consequence was not too remote, and gave a cause of action if the escape was the result of the defendants’ negligence, and if negligence threw legal responsibility on the defendant. I have already indicated that there was evidence of negligence on which the jury might find a verdict for the plaintiff. The learned Judge put the question: “Did Nugent and Hannon take proper precautions at the unloading of the cattle at Kingsbridge to prevent them escaping on to the public street?” The answer was: “No, inasmuch as the cattle should have been unloaded at the proper unloading bank.” I read that answer as meaning that there was negligence in allowing the cattle to be unloaded at an unsafe place, or in unloading them at an improper place without taking proper precautions against the attendant risks. The learned Judge interpreted the answer as meaning that the defendants did take proper precautions at the actual unloading, coupled with an expression of opinion that the unloading ought to have taken place at another place. With the utmost respect, I beg to say that this is an impossible interpretation, directly opposed to the language used. I am clearly of opinion that the jury intended to find, and did find, negligence, and that the language of the answer is explained by the evidence of Nugent that he was in entire charge, that, in effect, he accepted the landing place for the special reason that he alleged, and that pens were a most desirable precaution against escape, and in the absence of pens he did not provide against an escape by closing a gate which he admitted he might easily have closed.
But the defence did not stop there. Mr. Fitzgerald, counsel for the defendants, with his usual ability, took up two other lines of defence. Firstly, he maintained that the owner of an animal mansuetae naturae, unless it be trespassing on private property or unless there be the scienter of vice, is not liable for damage done by such an animal. No doubt this, as a general proposition, is true, but it must be subject to qualifications; if it is not, it is impossible to understand well-recognised cases of authority. A horse is mansuetae naturae, and yet if a horse, no matter how well trained and docile, is left unattended in a public street, and if, owing to some special circumstances, he runs away and does damage the owner is liable. If a well-trained and docile horse, accustomed to the traffic of a public street, may occasion actionable damage if unattended and left without control, why should not a bullock, left without any control in a public street and subjected to disturbing surroundings to which it is wholly unaccustomed and which are most likely to produce fright, entail similar consequences? True, the bullock may have no vice, but because he is a bullock he is subject to fright under what are, to it, abnormal circumstances. The rustic coming to town for the first time is more likely to be run over than the townsman. The bullock taken from the serene quietude of his native fields and subjected to the din and noise of a city is more likely to run down the townsman. I do not think that the general proposition on which Mr. Fitzgerald relied covers a case like the present. But, if necessary, I would hold that there was a scienter in this case. Nugent said that cattle unloaded from a train are liable to take fright. Fright may not be a vice, properly so called, but it produces a condition which, in a public thoroughfare, is very dangerous, and the owner of the frightened animal is bound to take the necessary precautions. I have searched for authority against this proposition and I could find none. I think that it is consistent with all the authorities which were cited during the argument.
The leading case of Cox v. Burbidge (1) was strongly relied upon by the defendants, but the judgment turned entirely upon the improbability of the horse in that case kicking the plaintiff, an event altogether contrary to the habits of the horse. Erle C.J. said (1): “It appears that the horse was on the highway, and that, without anything to account for it, he struck out and injured the plaintiff. I take the well-known distinction to apply here, that the owner of an animal is answerable for any damage done by it, provided it be of such a nature as is likely to arise from such an animal, and the owner knows it . . . The owner of a horse must be taken to know that the animal will stray if not properly secured, and may find its way into his neighbour’s corn or pasture. For a trespass of that kind the owner is, of course, responsible. But, if a horse does something which is quite contrary to his ordinary nature, something which his owner has no reason to expect he will do, he has the same sort of protection that the owner of a dog has.”The same law applies to a bullock; but does it mean any more than this: that in usual circumstances a horse and a bullock may be expected to remain harmless when straying on a highway? It does not mean that a bullock normally harmless ought to be expected to continue so, if put out on the highway in a state of excitement caused by fright. Nugent, the drover, said that precautions had to be taken. Why? Because beasts were liable to take fright during unloading. Here is the evidence of the scienternot, perhaps, of a vicious disposition, but of a disturbed condition equally fruitful of harm, which requires precaution. In Cox v. Burbidge (2) the surroundings were rural, apparently those which the horse was accustomed to. How different were they from the circumstances of the present case!
In Heath’s Garage, Ltd., v. Hodges (3) the liability of an owner of animals allowed by him to stray on a public highway was fully considered. It was held that he was not liable because the animals were harmless domestic animals not known to have any dangerous propensity. The offending animal in that case was the most harmless of all domestic animals, a sheep, and the least likely to injure anyone. The idea underlying all the judgments is expressed by Lord Cozens-Hardy, who said (p. 376):”I am prepared to hold that in ordinary circumstances, in an ordinary highway”which was a rural highway”it is no breach of duty not to prevent harmless animals like sheep from straying on to the highway, and that it makes no difference whether the action is sought to be based on negligence or on a nuisance to the highway.” The present case is not one of an escape in ordinary circumstances in an ordinary highway. We have the special elements of apprehension on the part of the drover which dictated precaution against the very event which happened. I should also observe that the negligence referred to by Lord Cozens-Hardy was only negligence in not having proper fencing, not negligence in not taking precautions against the escape of an animal in an excitable, and therefore dangerous, condition.
Now I come to Mr. Fitzgerald’s last line of defence, maintained with equal ability and courage. His argument was, as I understand it, that by the common law of Englandwhich is also the common law of Irelandthe occupier of a close adjoining a public highway is not under a legal obligation to maintain fences to prevent his animals mansuetae naturae from straying on the public highway, and that he is not liable for any accident which is occasioned by such straying under any circumstances. I interjected, during the course of the argument, that if that proposition were to be accepted the possibilities were appalling. It involves thisthat a cattle salesman, having stock yards abutting upon a public street, is under no obligation to confine his stock, and may with impunity, so far as damage to individuals is concerned, allow twenty, fifty, or even a hundred head of cattle to stray on the public streets. Or, to take the very case with which we are dealing, if Nugent and his assistant in sheer negligence allowed the whole consignment of seventeen cattle to escape into the public street and if they did damage all round, the defendants would incur no liability to the injured parties. Such consequences must put us on enquiry, because our respect for the common law must make us unwilling to admit that it involves extravagant conclusions.
In my opinion the broad proposition cannot be maintained. In the first place, the cases I have already cited establish that animals mansuetae naturae known to have a dangerous propensity may not be allowed by the owner to stray with impunity. In the second place, I am inclined to the opinion (although, as I will show later on, it is unnecessary to decide the question in the present case), that the common law, which relieves the owners and occupiers of land adjoining highways from fencing their lands, does not apply to cities. I have not been able to find any authority to this effect, but I was urged to the conclusion I am inclined to adopt when seeking for an explanation of the common law. Its origin is involved in obscurity, but I think it arose in this way:When roads were first made they ran through unenclosed country. The imposition of an obligation on the owners of the lands on either side to raise fences would have been intolerable Indeed, I think it never occurred to anyone to impose such a liability, because there was no necessity for fences. The traffic was so meagre and so slow that the obstruction of cattle was not of any importance whatever. These are the days of motor cars, but in the time of Charles the Second the stage-coach took two days to do the journey from London to Oxford. That, and pack horses, were almost the only traffic on the road. There may have been another reason against the obligation of fencing. The adjoining owners were accredited with the ownership of the soil of the road ad medium filum viae, and should not, therefore, be shut out from it; and it also occurs to me that the common law right of diversion for a traveller into the adjoining land, when a portion of the roadway became impassable, was inconsistent with the existence of fences. In modern times the country became enclosed. Owners of lands put up road fences, not for the convenience of travellers, but for their own, and the erection of such fences could impose no liability upon them. But these explanations of the common law have no application to cities. For instance, the ownershipad medium filum viae is unknown in cities. For these reasons I am inclined to think that the common law proposition has no application to the conduct of business in cities, and I feel almost driven to this view by a consideration of the consequences which would ensue from non-liability for escape of animals from enclosures abutting upon public streets. It is, further, very remarkable that all the cases which have been cited were concerned with escapes from enclosures in rural districts. But, as I said, it is not necessary to decide that the common law, which was relied upon, does not apply to cities. We are dealing here with premises of an exceptional characterthe terminus of a large railway which is an emporium for the consignment of cattle of all kinds, most of which may be quite docile, but others very excitable and unmanageable after the severe strain of a railway journey. To say that such animals may be let loose indiscriminately on crowded highways would, I think, be against the reason and spirit of the common law, which represents what was the common custom of the realm in days gone by.
For these reasons I am of opinion that the plaintiff is entitled to judgment on the finding by the jury, as I read it, that the defendants were guilty of negligence.
FITZGIBBON J. :
In my opinion there should be a new trial of this action, for, while I am in entire agreement with the view that the judgment which has been entered for the defendants cannot be allowed to stand, I am unable to concur in a decision that the findings of the jury enable us to record a verdict and enter judgment for the plaintiff. I can honestly say that I am very glad that the majority of the Court has been able to arrive at a decision which will end the case in the plaintiff’s favour, as I do not think that it is to the credit of the law that a case which has been tried out, and in which the jury have come to an agreement upon every question submitted to them, including the assessment of damages, should have to be tried over again by a new jury because the first jury, through no fault of their own, have failed to furnish the materials which are necessary, in my opinion, to enable the Court to enter a judgment for one side or the other; but I think that to do so upon the findings as they stand involves the usurpation by the Court of the functions which belong exclusively to a jury.
I agree with the opinion expressed by Mr. Justice Johnston that there was no evidence upon which the jury were entitled to find that the defendants were guilty of negligence in unloading the cattle elsewhere than “at the proper cattle unloading bank.” The waggons in which the defendants’ cattle had been carried to Kingsbridge were attached to a passenger train, the Railway Company, in accordance with what is alleged to have been the usual practice in dealing with such waggons, shunting them, with the train to which they were attached, to what is known as the St. John’s Road or Military Siding. The evidence is that: “It is the usual practice when cattle are brought in on passenger trains to unload them at St. John’s Road.” “Cattle on passenger trains usually unload there,” and Hannon says on cross-examination: “Any cattle on passenger trains will not be put off at the cattle bank.”It was not by direction of the defendants that the cattle were brought to the Military Siding: the most that could be said is that Nugent might have had them sent elsewhere if it had occurred to him that the Siding was an unsuitable place for unloading. According to Nugent, the regular cattle bank is a mile away from the Military Siding, and as the number of cattle concerned was not great, I cannot hold that to allow two waggons of cattle to be brought to the “usual place” for unloading cattle carried by passenger train was evidence of negligence.
But while I dissent emphatically from the opinion of the learned Judge that the answer of the jury to the third question exonerated the defendants from all negligence save in respect of the selection of the place for unloading, I cannot agree that it amounts to a finding of any negligence other than that specifically stated in the reply of the jury. The third question was as follows: “Did Nugent and Hannon take proper precautions at the unloading of the cattle at Kingsbridge to prevent them escaping on to the public street?” To this the jury replied: “No, inasmuch as the cattle should. have been unloaded at the proper cattle unloading bank.”
It is obvious that if the gate, which was left open, and through which the cattle broke loose on to the public street, had been closed, the mere fact of unloading at the Military Siding, even assuming it to have been an improper place, could not have caused the injury of which the plaintiff complains, and it is quite possible that if the cattle had “been unloaded at the proper cattle unloading bank,” but all the gates there had been left open, as they were at the Military Siding, the two bullocks might have stampeded on to the public street just as they did from the Military Siding.
I think the plaintiff’s counsel was satisfied, and induced the jury to believe that a finding of negligence quoad place of unloading was sufficient, and that the jury, having found that issue in the plaintiff’s favour, considered that all the subsequent events necessarily followed from that initial act of negligence, and that it was unnecessary to add any further items of negligence such as the omission to close the gate, which was a direct cause of the escape of the cattle. I cannot agree that the specification by a jury of one act, and that the first act in point of time, as negligent, amounts to a negation by them of the existence of any other negligence on the defendants’ part.
But in my opinion there must be a finding of negligenceby the jury, from which the injury to the plaintiff could reasonably arise, before I can enter judgment for the plaintiff, and I cannot take upon myself to decide that the omission to provide further assistance or to close the gate necessarily amounted to negligence in the circumstances. If it did, the rest appears to me to follow reasonably enough.
The defendants knew that precautions were necessary when unloading; that cattle “are liable to take fright when they are being unloaded.” “When these animals get out of trucks they are frightened.” Yet they are unloaded directly opposite to an open gate, giving direct admission to the public street, and apparently no precaution was taken to prevent escape. Also, at the later stage, after the two bullocks had gone wild and had dashed up on the plotsaway from the open gate it was possible for the jury to find, if they thought fit to do so, that Nugent might have done something more effective to prevent their escape than to “stand at the gate” “a gate that can be closed” that “moves on wheels and can be closed very easily.” Yet he made no attempt to close it, though he was watching the terrified bullocks careering up on the plots, and then being turned and driven back at him by Hannon and the railway porter. In my opinion the jury should have been asked to find whether he was guilty of negligence in these respects or not.
If cattle in the state of terror and excitement in which these two bullocks are admitted to have been were negligently permitted to escape into a public street, I agree with my brother O’Connor that no question of scienter can arise. The case would not then be one of an apparently harmless animal taking sudden fright while being driven along a highway, but of an infuriated animal being permitted by negligence to escape from an enclosure in which it might have been confined, either until it had quieted, down or until it had been placed under proper restraint so that it might traverse the city without endangering the lives and limbs of the public. But a finding by a jury is essential before a judgment can be given for either party.
In my opinion the action of Patrick Kelly in driving the bullocks out of his yard was not such a novus actus interveniens between the original escape of the cattle (assuming that to be due to Nugent’s negligence) and the injury to the plaintiff as to disentitle the latter to recover damages from the defendants for the act of their servant. The cattle were trespassers in Kelly’s yard, and doing damage there, and he was entitled in self-defence to drive them out. His action corresponded to that of Willis and Ryal in the case of Scott v. Shepherd (1).It is sometimes forgotten that the discussion in that famous case really turned upon the form of action whether trespasswould lie against Shepherd. It was decided by three Judges to one that it would, but Blackstone J., the dissentient, was pretty clearly of opinion that if the form of action had been case(to which the present action corresponds), the plaintiff was entitled to recover against Shepherd notwithstanding the new impetus given to the squib “by two successive rational agents.”As forms of action have been long abolished, there seems to be no doubt that Kelly’s intervention cannot disentitle the plaintiff to recover from the original wrongdoer.
Even if this view is wrong, there is a further aspect of the case in which the plaintiff would appear to me to have a good cause of action if the proper questions had been submitted to the jury, and had been answered by them adversely to the defendants.
The fourth question put was: “Were the defendants’ men guilty of negligence in not following the escaped bullocks and getting them under proper control?” Answer: “No. If we regard Heffernan as one of the defendants’ men we consider he was guilty of negligence in leaving the bullock at the yard.”
In my opinion there was evidence upon which the jury might have found, if they thought fit to do so, that Heffernan was one of the defendants’ men. Nugent “was the defendants’ foreman drover for five years.” He “got instructions to go to Kingsbridge to meet two waggons. There were to be seventeen cattle. I brought James Hannon with me. He is a drover and is a competent man.” After describing the escape of the two bullocks, he goes on: “We drove the fifteen down the quays and across Watling Street Bridge and on to Prussia Street” (apparently their destination). “I met a drover called Heffernan at Prussia Street. He was a casual acquaintance. He went off in search of the two cattle, and I said to him to come back and tell me if he could find the cattle so that I could go down with more cattle to bring them back quietly. Heffernan came back to me and I sent James Hannon and Heffernan with a bunch of cattle to bring back the strayaways.”Now, Nugent was a foreman drover. He “was in control of the unloading of the cattle” and in charge of the transit from Kingsbridge to Prussia Street. He “brought Hannon” and subsequently “sent Hannon and Heffernan” with orders what to do. In the absence of any contradictory evidence as to Nugent’s authority, a jury would be entitled to assume that it was within the scope of his employment to engage such assistance as he found necessary to conduct his cattle from Kingsbridge to their destination, and to bespeak the services of Heffernan in the emergency which had occurred. If he had no such authority, I think it lay upon the defendants to rebut the presumption arising from his position and actions. Suppose half a dozen or more of the cattle had become wild when unloaded, were two men to attempt to drive them along the streets, or had not Nugent authority actual or implied to enrol such assistance as he required?
Upon the evidence as it stood, the jury might lawfully have found that Heffernan was one of the defendants’ men, and they have in fact found that he was guilty of negligence which again let loose the terrified bullocks upon an unsuspecting population.
But, here again, I cannot take upon myself to give an answer which should be given by a jury and a jury alone, and which when given would decide the case in the absence of, or in addition to, findings upon the earlier negligence alleged.
I agree that the judgment for the defendant should be set aside, but I think that the action should be remitted for a new trial, and that the costs of the trial already had should be costs in the cause.
Foley v Berthoud
County Court.
1 March 1903
[1903] 37 I.L.T.R 123
H
His Honor
In this case, which stands adjourned from Kenmare, the plaintiff claims damages against the defendant for injury done to his oats and turnips by pheasants and rabbits which came from the defendant’s demesne.
The plaintiff holds a farm adjoining the defendant’s demesne, and he says his crops, his oats, and turnips have been injured to an extent which he estimates at £8—his oats chiefly by pheasants, and his turnips by rabbits.
I have no reason to doubt that damage has been done by pheasants and rabbits to the plaintiff’s crops, and the only question that I have to decide is whether the defendant is legally liable for any damage done by the pheasants and the rabbits that came from his demesne.
Now, first of all, as regards pheasants, the law upon the subject up to a very recent date was clear and unmistakable. Pheasants are birds ferœ naturœ —they are wild birds, not tamed or domesticated like hens or turkeys; and the rule of law as to wild birds is that the man who has those birds breeding and living within his bounds has no property in them whatever once they pass from his bounds, and is not liable for any damage they may do. They are just in the same category as crows which live in his demesne among his trees. He has no property in the crows, and no liability for any damage which the crows may do to his neighbours; and exactly the same rule up to a recent date applied to pheasants. But with regard to pheasants, there has been a decision of a somewhat recent date, upon which the plaintiff here relies, that pheasants which are bred under particular circumstances and in enormous numbers, within a very limited area, did not come within the rule of birds ferœ naturœ. The case referred to is Farrar v. Nelson (15 Q. B. D. 258). That was a case in which a man had collected 450 pheasants in coops within an acre of land, and within five yards of his neighbour’s land. He was held to be liable for damage done by the pheasants kept under those circumstances. It is perfectly clear that the large number of 450 pheasants kept in an acre of ground in coops are in a wholly different position from pheasants flying around through a demesne, because the circumstances under which they are bred and kept render them more of the character of domestic birds than of wild birds. The question I have to decide here is whether the defendant, Mr. Berthoud, has kept his pheasants—either bred them or kept them— in such a way as to bring them within the rule of the case of Farrar v. Nelson.
The evidence given before me did not seem to me to show that there was anything very extraordinary about the number of pheasants bred on the land in proportion to the extent of the demesne land upon which they fed, or that they were kept in such a way as to deprive them of their character of wild birds, and bring them within the category of domestic birds. They were not fed in coops or kept in coops, but were flying about the demesne. The only way in which they differ from wild birds bred and maintained in the ordinary way is that Mr. Berthoud sets pheasants’ eggs under hens and produces them in that way, and feeds them in his own demesne with maize, which, of course, is not the natural food that pheasants would have in their wild state.
But all these elements were present in the case of Robson v. Marquis of Londonderry, 34 Ir. L. T. R. 88, where no less than 2,000 pheasants were hatched in coops in Mount Stewart Demesne, in an area of 900 acres, which is more than two pheasants to every acre, whereas in this case the evidence was that only about 500 pheasants were raised under hens in Dromore Demesne, in an area of five or six hundred acres, or rather less than one pheasant to every acre.
There are no elements in this case that is before me that I can see to distinguish it from the case of Roberts v. Marquis of Londonderry, or to bring it within the rule of the case of Farrar v. Nelson. Therefore, as far as the pheasants are concerned, I must hold that the defendant is not liable for any damage done by the pheasants that are bred in his demesne in the way deposed to.
Now, as to the case of the rabbits, it has been laid down as long ago as the reign of Queen Elizabeth that a man is not liable for the damage done to his neighbour’s land by rabbits that are bred upon his own land. “If a man makes coney burrows, which increase so much the number of rabbits that they destroy his neighbour’s land, his neighbour cannot have an action against him. As soon as they come to his neighbour’s land he may kill them, and he who makes the coney burrows has no property in the rabbits” ( Boulton’s Case, 5 Co. 104a). That has been the law with regard to rabbits up to the present.
I was referred by Mr. Roche to the case of Brady v. Warren (2 Ir. Rep. [1900] 632), in which the Chief Baron, though he held that the defendant, who bred rabbits in his own demesne, was not liable for any damages to the adjoining land, suggested possible circumstances under which a man might become liable for damage done by rabbits which he bred. But I must say, after carefully reading the observations of the Chief Baron in that case, I find nothing to suggest that he would have held the defendant in this case liable. In the first place, he says he has strong doubts whether the rule laid down in Farrar v. Nelson could possibly apply to rabbits at all. But assuming it can, what are the circumstances that might make the man who had the rabbits *124 in his demesne liable for any damage they might inflict upon his neighbour? Well, he says rabbits might be tamed, or by artificial cultivation they might be increased to enormous and excessive numbers, far beyond what might be expected from the natural growth of rabbits in a wild state, and that that might possibly be sufficient to maintain an action. But none of the circumstances that he refers to are proved in this case at all. Even the case of Brady v. Warren was a much stronger case, because in that case Belgian rabbits had been brought in, and care had been taken both to maintain the number of rabbits and to increase their size.
In this case, as far as I can see, there was no evidence that the defendant had done anything to promote the unnatural growth of the rabbits. He simply trapped the rabbits annually, and sold a large number of them off, and there was nothing to show he encouraged either any excessive numbers or did anything to reduce them to the state of domestic animals, or to increase their number and size.
I am bound to come to the conclusion that neither as regards the pheasants nor the rabbits is the defendant liable, and I therefore dismiss the case.
[At the Kerry March Assizes, Gibson, J., affirmed this decision.]
Patrick Crean v Nolan and Others
Circuit Court
9 February 1963
[1963] 97 I.L.T.R. 125
Judge O. Briain
Judge O Briain:
It is agreed that the second of these two cases falls or stands with the first, apart from the question of damages, and I will accordingly, deal with the case of Crean v. Nolan and Others. It is pleaded in the Civil Bill that the plaintiff is a farmer and is the occupier of certain lands at Tonevane, Blennerville, Tralee in the County of Kerry. The defendants are members of the Festival of Kerry Committee, and were, at the time of the matters complained of, the President, Secretary and joint Treasurers respectively of the said Committee. On or about the 3rd day of September, 1961, the defendants organised and managed a drag-hunt in the vicinity of the said lands in the occupation of the plaintiff and, prior to the commencement of the said drag hunt, the defendants their servants and agents brought together a large number of beagle dogs on premises occupied by the defendants.
It is alleged that, in the course of said hunt, the defendants led and brought the dogs into the lands in the occupation of the plaintiff and trespassed thereon, and that one or more of *126 the dogs made an attack upon the plaintiff’s sheep and as a direct result, eleven of the sheep died or were lost.
I am satisfied that trespass has not been proved, and there is no evidence that the drag hunt was lard on the lands of the plaintiff.
I am also satisfied, however, as a matter of probability that one or more of the dogs that had been participating in the hunt did attack the plaintiff’s sheep as alleged A large loss of this kind is serious for a small farmer but I have to decide the case on the evidence alone. Had it not been for the hunt the damage to the sheep would not have taken place, but the plaintiff must show that the cause of the damage was the wrongful act of the defendants.
It is pleaded in paragraph 8 of the Civil Bill that the dogs were of a fierce and ferocious nature and accustomed to so attack sheep, and that the defendants well knew that the said dogs were of such a fierce and ferocious nature and were so accustomed. Prima facie there is no liability for trespass of cats and dogs in the absence of proof of scienter, or the incitement by the owner of the dogs to trespass and commit damage. The proof of scienter must, however, relate to the particular dogs which killed the sheep, and known to the defendants or the owners There is no evidence that either of them knew that the dogs were fierce and ferocious, and so this plea also must fail.
A claim may succeed under the Dog’s Act, 1906, in which it is not necessary to prove either scienter or negligence, but this applies only against the owner or owners of the dogs and has no relevance in relation to the defendants in this case.
In paragraph 9 of the Civil Bill it is pleaded that the defendants their servants and agents were negligent in the care management and control of the said dogs at the time of the matters complained of. This plea raises the question as to whether the owners of the dogs were the agents of the defendants. The whole Festival of Kerry is described as the greatest free show on earth, and the committee decided to put on a drag hunt and they did it by inviting a number of dog owners to come and enter their dogs for the drag-hunt. But they did so, not per se, but through others, and the owners were agents for the Festival Committee.
The mere organising of a hunt is not per se a negligent act and the assembling of the dogs is not evidence of negligence. Nobody saw the dogs breaking away but they got away from the pack and dispersed. While I hold that the owners were agents for the defendants, there must be a time limit to the continuance of the agency. I hold that they were agents from the time of assembly to the dispersal of the owners and the giving of the prizes, but, at what exact time this was, the evidence is flimsy.
At 8.30 p.m. a single dog was seen crossing the mountain, and, two days later, two other dogs were caught by a local farmer. Accordingly three of the beagles which had taken part in the hunt had not been re-assembled with the others, but there is no evidence that these beagles escaped from the pack during the hunt, and, on the evidence, it is open to me to hold that they may have escaped after the hunt but, at that time the agency had terminated. While I hold that there was agency, I am not satisfied that the onus of proving that the damage was done by beagles who had strayed away after the hunt has shifted on to the defendants, and, while there is some moral obligation on the committee of the Festival of Kerry to make good the loss to the plaintiff, in law I hold that the plaintiff has not proved his case and I must dismiss his claim with costs. I will make a similar order in the case of O’Connor v. Nolan and Others.
Callaghan v. Killarney Race Co. Ltd.
[1958] IR 366
Maguire C.J.
On the 22nd July, 1954, the plaintiff went to the races at Killarney. While watching the first race which was a hurdle race he met with injuries. He has sued the Killarney Race Company for damages, alleging that his injuries were caused by their negligence. At the gate he paid two shillings and was entitled to go to the unreserved part of the course, which appears to be the whole area surrounded by the race-track. There were no terms of contract between him and the defendant Company and the contract between them is to be implied from the circumstances of the case. He took up his position to watch the first race close to the rail beside the track at a point where the hurdle which had to be jumped first was situated. This hurdle was of the ordinary type with which those who attend races are familiar. It consisted of five frames four feet high with birch twigs rammed into them. As it sloped away from the direction which the horses approached its height was three feet six inches. At each end of the hurdle there was a wing of similar type to the frames forming the hurdle. They were of the same height as the frames mentioned but rose slightly higher as they were not tilted. They made an angle with the straight face of the hurdle opening out towards the direction from which the horses were to come. The wing on the left went right over to the rail guarding the course.
This rail, which is referred to as the public guard rail, was a light wooden rail resting on standards three feet two inches in height. It was of the same type all round the course. Near the finishing-post, however, it was much stronger and was supplemented by a rail nine feet away consisting of concrete posts and a double rail. The purpose of the rail save at the finishing-post is merely to define the track and according to the evidence was not devised as a protection either for horses or spectators. Neither were the side wings of the hurdle devised as a protection to either the horses or the spectators. Their purpose was obviously to indicate clearly to the jockeys the hurdle which was to be jumped. The construction of this hurdle was similar to that of all the other hurdles on the course and was similar to hurdles on other courses.
There were seven runners in the first race. The start was two hundred and twenty yards from the hurdle. The plaintiff, standing close to the rail and behind the wing of the hurdle, was watching the horses approach. The evidence was that he followed with his eyes the leading horses. One of those behind diverged from the course, jumped the wing of the hurdle and knocked the plaintiff and some other spectators down. Although no similar accident had happened on this course previously it is obvious that there is a possibility that a rider would lose control of a horse and that the horse might get in amongst the spectators and that if he is trained to jumping either hurdles or other obstacles he might do as this horse did. These risks are incidental to and inseparable from the sport of racing. The races were run under both the Rules of Racing and the rules of the Irish National Hunt Steeplechase Committee. It is not proven that the lay-out of the course is any different from that of other courses throughout the country where similar events take place.
At the end of the plaintiff’s case it was submitted that there was no evidence on which it could be held that the accident happened through any breach of duty on the part of the defendants. Mr. Liston’s submission was that it was not negligence to have failed to anticipate an accident of a kind which had never happened before on this course and, secondly and alternatively, that the defendants were not liable because one of the implied terms of the contract was that the plaintiff accepted the risks incidental to horse-racing. Mr. Liston cited several cases including Hall v. Brooklands Auto Racing Club (1) and Coleman v. Kelly and Others (2).In reply it was contended that there was evidence from which a jury might find that the premises were not reasonably safe. It was submitted that the evidence was that the position where the plaintiff was standing was a popular vantage-point to which numbers went to see the horses take what was as it happened both the first and the last hurdle to be jumped. These circumstances, it was urged, made it likely if an accident of this kind were to happen that the consequences would be very serious and this in the minds of the jury might call for special precautions to be taken. The only precaution suggested was the erection of another guard rail some ten or twelve feet away from the existing one. Mr. McMahon, however, agreed that it must be accepted as an inherent risk in racing that a horse might suddenly swerve and dash through the rails. He, however, submitted that it is different at a hurdle where a horse is asked to take a jump. This, he submits, is something that a horse is reluctant to do and it should be anticipated that he might swerve sideways at this point which was one where people were very likely to be injured.
The learned Judge held that the risk of what happened was an unforeseeable risk, something which had never happened before and something which the Company could not be bound to guard against.
The law in regard to injuries to spectators who pay to see an entertainment to which obvious risks are incidental has been considered in a number of cases. This Court considered it in the case of Coleman v. Kelly and Others (1). The leading English case is Hall v. Brooklands Auto Racing Club (2).The decision in that case was accepted by this Court in the case above mentioned. It was a case in which the plaintiff who paid to view motor races and was standing by a railing beside the track when one of the competing cars left the track, shot through the air over the kerb and the grass margin, killing two spectators and injuring the plaintiff. The principle it lays down is succinctly stated in the head note: “Held, that it was the duty of the appellants to see that the course was as free from danger as reasonable care and skill could make it, but that they were not insurers against accidents which no reasonable diligence could foresee or against dangers inherent in a sport which any reasonable spectator can foresee and of which he takes the risk . . .”Scrutton L.J. asks, at p. 214: “What then is the term to be implied on payment to see a spectacle, the nature of which is known to all people of ordinary intelligence who go to see it?” He answers this by citing a passage from Lord Wensleydale’s judgment in Parnaby v. Lancaster Canal Co. (3)which lays down the duty resting upon proprietors of a canal open to the public for use on payment of certain rates. They must take reasonable care that those who navigate it might do so without danger to their lives or property. Applying this to the case before him he goes on: “This is not an absolute warranty of safety, but a promise to use reasonable care to ensure safety. What is reasonable care would depend on the perils which might be reasonably expected to occur, and the extent to which the ordinary spectator might be expected to appreciate and take the risk of such perils. Illustrations are the risk of being hit by a cricket ball at Lord’s . . . where any ordinary spectator . . . takes the risk of a ball being hit with considerable force amongst the spectators, . . .” Further illustrations he gives are spectators who stand along the line at a football or hockey match. Lord Justice Greer’s judgment is to the same effect. He adds the illustration of a man taking a ticket to see the Derby who would know quite well that there would be no provision to prevent a horse which got out of hand from getting amongst the spectators and would take the risk of such a possible but improbable accident happening to himself.
Applying these principles the Court set aside a verdict which the plaintiff had obtained and entered judgment for the defendants. As already stated, the principle laid down in the Brooklands Case (1) has been accepted by this Court in Coleman v. Kelly and Others (2). This latter was a case of an accident at a show ground. The Court distinguished it from the Brooklands Case (1) because of its special facts. Although in my judgment in that case I held that the jury on the evidence were entitled to hold that the accident which occurred was reasonably foreseeable and could have been guarded against, I said at p. 51: “It was not the duty of the defendants to provide against improbable or unlikely happenings such as the dashing of a horse through the railings in amongst spectators.” That is what happened here. In my opinion, the plaintiff took the risk of a horse swerving off the course as this horse did and injuring him. That a horse might do so was an obvious possibility. If precautions were to be taken to prevent this happening there would need to be a substantial fence all the way round the track which would have to be so high that nobody standing behind it could see the horses. Mr. McMahon of course does not suggest anything quite so absurd. It would prevent the spectators seeing what they paid to see. He does suggest a guard rail similar to that at the finishing-post. The double rail at that point is not for the purpose of protecting the spectators but for the purpose of preventing excited or over-eager spectators from invading the course. It is, in effect, to protect the horses and their riders from spectators and not vice versa.
In my opinion, the learned Judge was correct in withdrawing the Case from the jury. The ground upon which this should have been done may, however, be stated somewhat more precisely than it was stated by him. The risk of what happened occurring is inherent in racing and particularly in the type of race which was taking place. That it would happen in precisely the way it did may, as the trial Judge held, be unforeseeable, but that a horse might jump off the course was a possibility of which all intelligent spectators are aware. The plaintiff must be held to have accepted this risk, and accordingly there is no evidence of any breach of duty on the part of the defendants which would render them liable.
In my opinion the appeal should be dismissed.
LAVERY J. :
I agree with the judgment of the Chief Justice and I do not wish to add anything to it.
KINGSMILL MOORE J. :
Killarney race-course is a rounded oblong, with a perimeter of about a mile. The inside of the oblong is the public enclosure, and therein is also contained the totalisator building, and pitches for bookmakers. The public enclosure is separated from the track by a fence consisting of posts, two and a half by three inches in cross section, fixed at intervals of twelve feet, on top of which is a single rail two or two and a half inches thick, and about three feet two inches from the ground. This fence was described by a witness for the plaintiff as being a most flimsy construction which would afford no protection to persons standing behind it. In his view the object of the fence was not to protect onlookers but to define the track. A photograph put in evidence for the plaintiff confirms this description. The fence can be easily jumped by a horse or easily broken by impact and it appears clearly to be erected for the purpose of marking off the track for the benefit of jockeys and spectators alike. I find it impossible to believe that anyone could imagine that this fence would afford protection against a horse which had run away or was otherwise out of control.
For one stretch of eighty yards on each side of the finishing line there is a double fence of stronger construction. No reason was assigned in evidence for this stronger fence, but it may, I think, be assumed that it was to prevent a crowd pressing in on the course at the finish.
On the 22nd July, 1954, the course was prepared for a hurdle race, the hurdles being made of timber frames packed with brushwood, and sloped forward so that the height of the obstacle was three feet six inches. The width of the jumping face was thirty-one feet, and projecting from the ends of the jumping face were wings, each twelve feet long, and also made of hurdles. These wings were not quite at right angles to the face but opened slightly outwards so that the distance between the extreme points of the wings was thirty-eight feet. The hurdles forming the wings were not sloped but upright, making the height of the wings a full four feet. The edge of the wing nearest the boundary fence was three feet from the boundary fence at the end joining the jumping face, and was in contact with the boundary fence at its other end. It was admitted that there was nothing unusual or wrong in the construction or placing of the hurdles or the jump as a whole.
One of these hurdle obstacles was situated two hundred and twenty yards from the starting-gate and three hundred yards from the finishing-post, and in the course of the race it had to be jumped three times. For these reasons its vicinity was a favourite place for spectators in the public enclosure to congregate, and when the horses started for the hurdle race there were some forty or fifty people gathered along the boundary rail and close to this hurdle fence. Among them was the plaintiff, a boatman, who was a regular frequenter of the Killarney races, standing some nine feet back from the boundary rail and about opposite the hurdles. The horses came up to the hurdles in two groups. The first group of three cleared the obstacle without mishap, but the inside horse of the second group of four, for some unexplained reason, swerved to the left, jumped over the left-hand wing and the boundary fence, landed among the spectators, and very seriously injured the plaintiff.
The plaintiff thereupon sued the Company, which is the owner and manager of the race-course, alleging in his summons negligence and breach of duty by the Company and amplifying this in the statement of claim by adding a claim for breach of a warranty that the race-course and enclosure would be as safe for the use and occupation of the plaintiff as it could be made by reasonable skill and care. Lengthy particulars were given of the alleged negligence and breach of warranty, but, at the trial and on the appeal, the case was fought on the ground that the Company should have provided a double railing so as to keep spectators away from the edge of the course at points where they were likely to congregate and particularly at a favourite position such as that opposite this particular hurdle-fence.
At the conclusion of the evidence for the plaintiff the trial Judge withdrew the case from the jury on the ground that there was no evidence to justify a verdict in favour of the plaintiff.
From the oral evidence, scanty as it is, from the photograph, and from the knowledge as to the behaviour of horses which any ordinary racegoer may be assumed to possess, certain conclusions seem to me inescapable. First, that horses in a race normally remain under the control of their jockeys and do not run outside the limits of the course: second, that despite the efforts of their riders, horses, especially spirited animals such as bloodstock, do very exceptionally get out of control and behave in a panicstricken way: third, that the boundary fence would be quite inadequate to stop a horse which had so got out of control and which could easily either jump or break it. I consider further that the plaintiff must be deemed to have known and appreciated these facts when he chose to take up a position close to the boundary fence.
The plaintiff had paid for the right to enter the public enclosure. In such cases the liability is founded in contract: Hall v. Brooklands Auto Racing Club (1), accepted as correct by this Court in Hall v. Meath Hospital (unreported) and in Coleman v. Kelly and Others (2). The contractual liability is to take reasonable care that the premises are safe: see Hall v. Meath Hospital (unreported) per Sullivan C.J., Coleman v. Kelly and Others (2) per Maguire C.J. at p. 51, and Lavery J. at p. 55. But the owner of the premises is not an insurer, and, where the lack of reasonable care is alleged to consist in an omission, I think a guide as to what is or is not such lack is to be found in the words of Lord Dunedin in Morton v. William Dixon, Ltd. (3) at p. 809.”. . . proof of that fault of omission should be one of two kinds, either to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.” In Paris v. Stepney Borough Council (4), at p. 382, Lord Normand quoted this passage with approval, and continued: “The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances. But it does not detract from the test of the conduct and judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it.” This test was applied by the Lords in Morris v. West Hartlepool Steam Navigation Co. Ltd (1). Morton v. William Dixon Ltd. (2) Paris v. Stepney Borough Council (3) and Morris v. West Hartlepool Steam Navigation Co. Ltd. (1) were all concerned with the duty of an employer towards his workman, but the words I have quoted seem to me applicable to the duty which an owner of premises owes to a person who has paid to come on to them. There is no evidence that the owners of race-courses are accustomed to protect spectators by a double fence or by a fence which a horse cannot negotiate, nor, having regard to the rarity of a horse running wild among the spectators, could it be regarded as folly to fail to take such precautions. The spectators at Killarney have a right to view the race from any part of the interior margin of the course and, if there is an obligation to fence one part there is an obligation to fence every part. No evidence was adduced to show that a horse was more likely to leap the fence at one part than another.
In judging what a reasonable and prudent man would think necessary more than one element has to be considered. The rarity of the occurrence must be balanced against the gravity of the injury which is likely to ensue if the occurrence comes about, and some consideration must be paid to the practicability of the precautions suggested. If there was an obligation to double fence the whole perimeter, or to surround it with an unbreakable fence, the expense might well put an end to many of the smaller race-courses, or involve a higher price for admission. Having regard to the unlikelihood of the occurrence and the difficulty and expense of taking adequate steps to make such an occurrence impossible, and the practice prevailing at other similar race-courses, I do not consider that a jury could properly find that the defendant Company were guilty of a lack of reasonable care.
It must be remembered that there was no obligation on the plaintiff to post himself so near the rails, and if he chose to do so it seems to me that the defendant Company can rely on the further limitation of liability which Scrutton L.J. and Greer L.J. laid down in Hall v. Brooklands Auto Racing Club (4) and which was approved by the English Court of Appeal in Murray and Another v. Harringay Arena Ltd. (5),namely, that a person paying for his licence to see a cricket match or a race or other sport takes upon himself the risk of unlikely and improbable accidents provided that there has not been on the part of the occupier a failure to take the usual precautions. A person placed near to the playing-ground takes the risk of being hit by a cricket ball or a hockey ball, or, as in Murray’s Case (1), by an ice hockey puck. Lord Justice Greer in Hall’s Case (2) at p. 224 says that”a man taking a ticket to see the Derby would know quite well that there would be no provision to prevent a horse which got out of hand from getting amongst the spectators, and would quite understand that he was himself bearing the risk of any such possible but improbable accident happening to himself”; and, in Coleman v. Kelly and Others (3), Maguire C.J. at p. 51 said: “It was not the duty of the defendants to provide against improbable or unlikely happenings such as the dashing of a horse through the railings in amongst spectators.”
Accordingly, I consider that this appeal must be dismissed.
O’DALY J. :
I am also of opinion that this appeal should be dismissed.
It is, it seems to me, enough to say, I think, the plaintiff’s case fails in limine because it was not established in evidence by the plaintiff that the danger which he complains was not guarded against, viz., that of a horse jumping both the wing of the hurdle and the rail and injuring a member of the public beyond the rail, was one which might reasonably have been anticipated by the defendants.
The plaintiff is a person who has some experience of race-meetings both as a race-goer and as a former employee of the defendant race Company. His evidence was that he had never seen a horse jump over a wing of a hurdle and a rail before and it was not a normal thing you would expect to happen. It did not occur to him that there was any danger, because, as he said, he never expected a horse instead of jumping the hurdle would have jumped sideways and have got over the wing of the hurdle.
The only other person who gave evidence on this topic, Jeremiah Kelleher, is also a person of some experience of race-meetings. What happened at the hurdle was something outside his experience too. He was not expecting a horse to leap out. He thought it enough to move back as little as a couple of feet from the rail as the horses approached the hurdle.
This evidence is all one way: it is, that that which happened was most unusual and quite unexpected. “It was not the duty of the defendants to provide against improbable and unlikely happenings”: per Maguire C.J. in Coleman v.Kelly and Others (1).
The learned trial Judge was in my opinion right in withdrawing the case from the jury.
MAGUIRE J. :
I agree with the judgments which have just been delivered.