SHEC2791 14 May 1999

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

QUEEN'S BENCH DIVISION

 

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BETWEEN:

 

THOMAS AND GERALDINE McLOUGHLIN

 

Plaintiffs/Respondents;

 

and

 

SAMUEL COOPER

 

Defendant/Appellant.

 

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BETWEEN:

 

EAMON AND ANN O'HARE

 

Plaintiffs/Respondents;

 

and

 

SAMUEL COOPER

 

Defendant/Appellant.

 

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SHEIL J

The defendant/appellant in these two civil bill appeals, Mr Samuel Cooper, is a farmer whose property is in proximity to the properties of the plaintiffs/respondents, Mr & Mrs McLoughlin and Mr & Mrs O'Hare.

It is clear from the evidence in this case and from Mr Cooper's replies to the interrogatories served by the McLoughlins and the O'Hares that on 2 December 1995 Mr Cooper's cattle strayed from his lands out onto the public road and that thereafter they initially strayed into the O'Hares' garden causing damage thereto and, having been ejected therefrom by Mr O'Hare, went along the highway a short distance before entering into the McLoughlins' garden causing damage thereto.

Mr Cooper stated in evidence that for some time prior to 2 December 1995 some people in the locality, other than the parties to these proceedings, had maliciously been cutting his fences and that this accounted for his animals being on the highway. He stated that the persons who were doing this, who were not identified in court, were not "the full shilling". While he had reported the matter to the police on a number of occasions, there was no evidence to sustain a prosecution against the persons suspected of this activity as there were no witnesses thereto.

The law relating to the straying of cattle is now governed by the provisions of the Animals (Northern Ireland) Order 1976. Article (3)(b) of that Order provides that the rules of common law imposing a liability for cattle trespass are now replaced by Articles 4 to 6 and 8 of the 1976 Order. Article 4 is not relevant in the present case. Article 5 of the Order provides:

"5(1) Subject to Article 6, where livestock belonging to any person strays onto land in the ownership or occupation of another and -

 

(a) damage is done by the livestock to the land or to any property on it which is in the ownership or possession of the other person; or

 

(b) ...

 

the person to whom the livestock belongs is liable for the damage or expenses."

 

 

Article 6(4) provides:

"A person is not liable under Article 5 where the livestock strayed from a public road and its presence there was a lawful use of the public road."

Article 6(5) provides:

"In determining whether any liability for damage under Article 5 is excluded by paragraph (1) of this Article the damage shall not be treated as due to the fault of the person suffering it by reason only that he could have prevented it by fencing; but a person is not liable under that Article where it is proved that the straying of the livestock onto the land would not have occurred but for a breach by any other person, being a person having an estate on the land, of a duty to fence."

Article 7 of the Order provides:

 

"7(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 animals straying onto a public road is hereby abolished.

 

(2) Where damage is caused by animals straying from unfenced land onto a public road a person who placed them on the land shall not be regarded as having committed a breach of the duty to take care by reason only of placing them there if -

 

(a) the land is situated in an area where fencing is not customary; and

 

(b) he had a right to place the animals on that land."

The equivalent legislation in England is to be found in the Animals Act 1971, Sections 1, 4, 5, and 8.

Save for the provisions of Article 6 of the Animals (Northern Ireland) Order 1976, Article 5 renders the owner of straying livestock strictly liable for damage done by them regardless of the presence or absence of negligence on the part of that person: see Street on Torts, 10th Edition (1999) at 416. The common law defences to cattle trespass have been abolished. Thus the act of a third party, eg, leaving a gate open, which was a defence in England, Sutcliffe v Holmes [1947] KB 147 and in Ireland, Moloney v Stephen [1945] IR JUR REP 47, is now also abolished: see Salmond & Heuston on the Law of Torts, 21st Edition at page 332. As stated therein, the only defences recognised by the 1971 Act (and by the 1976 Order in Northern Ireland) are (1) the plaintiff's own default, (2) contributory negligence and (3) the well established rule recognised in the 1971 Act in England and the 1976 Order in Northern Ireland that the occupier of premises adjoining a highway is presumed to have accepted the risks incidental to the passage of ordinary traffic along that highway: Tillett v Ward (1882) 10 QBD 17, a case involving an ox being lawfully driven along the highway which entered the plaintiffs' shop through no negligence on the part of those in charge of the ox.

Even if in the instant case the defendant/appellant could have established that his cattle had gone out onto the road by reason of his fences having been maliciously cut, and he has not in fact so established in respect of the date in question in this case, the presence of the cattle on the road was not "a lawful use of the public road" so as to come within Article 6(4) of the 1976 Order.

The damage done to the respective plaintiffs' gardens was not due to any default or contributory negligence on the part of their respective owners.

There is no definition of the word "stray" in the 1976 Order. As there is in my opinion no ambiguity about the meaning of that word, I give to it its ordinary and natural meaning of to wander free from confinement or control: see The New Shorter Oxford English Dictionary (1993). The defendant submits that, by reason of the fact that the cattle strayed from his land onto the public road and only thereafter entered the plaintiffs' gardens, Article 5(1) of the 1976 Order does not apply in the present proceedings. I reject that submission. There is no reason to read into the clear words of Article 5(1) the additional words "directly from his lands"; if the legislature had so intended it would have so stated in Article 5(1).

I hold that the cattle which caused the damage to the respective plaintiffs' gardens were owned by the defendant and that they had strayed into same, having first emerged from the defendant's lands. I hold therefore that the defendant/appellant is liable at the suit of the respective plaintiffs/respondents in these two civil bill appeals.

Mr Cooper accepts that some damage was done to both gardens but disputes the amount of that damage. Neither the McLoughlins nor the O'Hares have carried out remedial work to restore their gardens to their state prior to the cattle trespass on 2 December 1995. Mr Declan Rodgers of Garden Services, who knew the McLoughlins' garden and attended it on a fairly frequent basis, examined it a few days following the incident on 2 December 1995. He provided an estimate of 1,618 to restore it to its previous condition. Mr McClory who worked as a landscape gardener with Tree Top Nurseries, which had laid out the O'Hares' garden in July 1995, inspected it on or about 4 December 1995 and provided an estimate of 1,522 to restore it to its previous condition. The last two mentioned witnesses gave evidence on behalf of the respective plaintiffs. The defendant by way of challenge to these claims called Mr Michael Dunford, who is a landscape contractor, and who examined both gardens in May 1997, although he did not actually at any stage go into the O'Hares' garden. He provided an estimate of 210 to restore the O'Hares' garden and 160 to restore the McLoughlins' garden. I regard his estimates as being totally unrealistic and not acceptable to the court. I regard the estimates provided by Mr Rodgers and Mr McClory as on the high side. In the case of the McLoughlins, I allow the sum of 1,300 by way of damages. In the case of the O'Hares, I allow the sum of 1,200 by way of damages. To that extent I vary the awards made by the learned County Court Judge.

 

 

 

 

 

 

 

 

 

Appearances: Mr Magill for the plaintiffs/respondents

Mr Cooper (personal litigant)

 

Date of hearing: 26 March 1999


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

QUEEN'S BENCH DIVISION

 

------------

 

BETWEEN:

 

THOMAS AND GERALDINE McLOUGHLIN

 

Plaintiffs/Respondents;

 

and

 

SAMUEL COOPER

 

Defendant/Appellant.

 

------

 

BETWEEN:

 

EAMON AND ANN O'HARE

 

Plaintiffs/Respondents;

 

and

 

SAMUEL COOPER

 

Defendant/Appellant.

 

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JUDGMENT

OF

SHEIL J

 

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