Davidson v McIrvine - Aberdeen Sheriff Court, 14 June
2007
On a dark and wintry evening in January 2004, the claimant
Davidson was driving his station wagon along Highway 97 in the
badlands due west of Huntly, Aberdeenshire when he had the
misfortune of meeting, head on and at speed, all 2000lb of Rameses
the Third, a bull belonging to McIrvine, a nearby rancher. In this
battle of man against beast, there could only be one winner: beast.
Rameses walked from the scene uninjured. Davidson and his car were
not so lucky. When at rest, Rameses could be found in a locked barn
on McIrvine's ranch. There he would spend many an hour dreaming
about the cows grazing in the nearby meadows. That at least was
where McIrvine had seen the animal when he last checked on him on
the day of the accident. But by the next morning, Rameses had
moved. He now stood in an adjoining paddock. McIrvine knew
something was amiss. He had heard there had been an accident on the
road the night before and he surmised that Rameses might have been
involved. The bull was silent on the matter.
Five hundred metres and three fences separated Rameses' paddock
from the highway. Rameses would have had to open and close three
field gates along the way. He could have charged the fences but all
the fencing was intact and, as far as McIrvine knew, Rameses hadn't
been trained to mend fences. Only one plausible explanation now
remained: Rameses must have vaulted the fences, blinkered and
jockeyless. McIrvine told the police, they told Davidson, and
Davidson raised proceedings against McIrvine.
Davidson's case was at common law. He argued that Rameses had no
right to be on the highway, his mere presence being sufficient to
make McIrvine liable irrespective of how Rameses got there. This
was rejected by the Sheriff who followed the leading Scottish case
of Gardiner v Miller (1967) in holding that a pursuer must
prove foreseeability of risk and want of reasonable care on the
part of a farmer. The sheriff didn't mince his words and awarded
Davidson not a sausage.
Davidson thought the sheriff had made an offal decision and
appealed. On appeal, he accepted that the sheriff had got the law
right but argued that he had failed to apply it properly to the
facts of the case. The appeal court could not say that the sheriff
was plainly wrong in reaching the conclusion that Rameses'
demonstration of jumping prowess was not reasonably foreseeable to
McIrvine and the appeal was dismissed.
The case reaffirms that insofar as farm animals are concerned,
there is no absolute duty on a farmer to prevent them from straying
onto a public roadway.
It is well to note that a case was not brought against McIrvine
under the Animals (Scotland) Act 1987, which does provide for
strict liability, but only where a defined species of dangerous
animal has caused injury to persons or damaged property and such
injury is directly referable to the propensities in the animal that
make it dangerous. Thus the keeper of a lion will be strictly
liable if it escapes and mauls a member of the public, but is not
automatically so if in crossing a public roadway the lion collides
with a passing motorcycle causing injury to its rider. Rameses the
Third and cattle more generally are not considered 'dangerous'
animals in terms of the Act, although McIrvine would be strictly
liable if Rameses were to damage the 'produce of land' as a result
of foraging.
Contributed by Steven Guild