A Bullish Approach Part II (bto insight, October 2007)

In the July edition of Insight, we reported on the case of Michael Davidson v John McIrvine, Aberdeen Sheriff Court, 19 February 2007, in which the Pursuer failed in his action against the owner of a bull which had escaped onto the road. The Pursuer collided with the bull and sustained injuries as a result. The Defenders were held to be not at fault.  However, the Pursuer appealed against the Sheriff’s decision.

The Pursuer submitted that three new findings in fact should be added to those made by the Sheriff: a) the Defenders were aware that bulls could jump over fences of up to eight feet, which was twice the height of the fences in operation, b) the Defenders were aware that bulls and other animals often escaped to the road by running through the Defender’s farm and the Defender himself was often required to put them back into the field and c) bulls kept out on their own such as this often escaped to seek out cattle.

The Sheriff Principal upheld the Sheriff’s decision and refused the appeal. He held firstly that it would not be right to add the proposed finding in fact a) without adding a qualification that it would be virtually impossible for a bull to jump over a fence of up to eight feet in height.  He felt the proposed finding in fact b) was misleading because it was clear from the evidence that the Pursuer was referring to other people’s bulls and also the route taken by these bulls was not stated. In relation to c) it was an overstatement to say that bulls kept on their own would “often escape and seek out nearby cattle”.

The Sheriff Principal went on to say that even if the additional findings in fact had been accepted, a further finding in fact that it was reasonably foreseeable that if the bull escaped from the barn it would end up on the road, would not have been added.  The appeal was therefore refused.

This decision reaffirms the views set out in our July edition that for a Pursuer to succeed with this type of claim at common law, he must be able to establish three key points: