Court overturns poisoned cattle award on Lewis

THE Sheriff Appeal Court has overturned a ruling which awarded farmer, Iain Scott, £272,711.28 for poisoned cattle in 2008.

Mr Scott originally raised the action, alleging that Scottish Water was in breach of its duty of care in respect of sewer maintenance on the Island of Lewis. It was found by the sheriff in 2021 that Scottish Water had known of contamination within the system, but failed to notify Mr Scott. Scottish Water then brought the case to appeal when it was heard by Sheriff Principal Nigel Ross and Appeal Sheriffs, Thomas McCartney and Robert Fife.

In May, 2008, Mr Scott noticed that a calf from a herd of beef cattle at Stoneyfield Farm was sick. It later died, causing him to report to SEPA that he had concerns about an open field drain at the roadside of the farm.

Although no adverse results were found by SEPA, more of the respondent’s cattle became sick, with several of them dying and the local vet was unable to identify the veterinary cause of the malaise, or any environmental cause.

On August 26, 2010, Mr Scott noticed sewage in the field drain where the calf had died in 2008. This was flowing from manholes, part of the same sewer network, on the common grazing to the east of Holm Farm Road. A nearby sewer manhole had been attended by Scottish Water in 2009 after it had been seen discharging sewage onto the surrounding land.

Scottish Water sent operatives to clear the drains at Stoneyfield Farm and carried out further investigation work to the sewers. They repaired defects they found in the sewer. There were no more leakages at the site.

Subsequently, Mr Scott returned cattle to the same field at Stoneyfield where they did not suffer any further regular sickness.

Mr Scott raised an action in the sheriff court on the basis that there appeared to be a link between the sewage leak and the sickness in his cattle. In particular, it was his case that Scottish Water should have, upon discovering the leak in 2009, investigated thoroughly the extend to which the resultant pollution might have entered nearby watercourses such as his own.

After 16 days of evidence, the sheriff eventually produced his judgment on December 30, 2021, awarding damages of £272,711. However, senior counsel for Scottish Water submitted to appeal stating that the sheriff had failed to address or analyse questions of law and failed to explain the findings in fact on which he based his conclusions.

Additionally, the claimed he had failed to explain why he preferred particular witnesses, had doublecounted damages and had wrongly awarded solatium (compensation). Because of these shortcomings, it was necessary for the court to start again and consider in detail the transcripts of evidence.

Sheriff Principal Ross, delivering the opinion of the appeal court, was critical of the original sheriff’s approach to the case, saying: “Crucial findings in fact are only incompletely supported by discussion in the remainder of the judgment. They closely reflect those set out in the written submissions for the pursuer.

“There is no finding in fact that Scottish Water knew or ought to have known of this leakage or damage, or recognising that damage ceased when the cattle were removed from the field in August, 2010.”

He continued: “The sheriff appears to have treated this as a simple case which did not need to be explained further. We are unable to accept, having read the transcripts of 16 days of evidence, the lengthy submissions following proof, and having heard two days of submissions on appeal, that the sheriff has adequately or informatively dealt with the evidence in this case, or that he has explained his findings in fact in a logical or supportable manner.”

Conducting a review of the evidence, Sheriff Principal Ross said: “There was no evidence that, except in 2008 with a nil result, the drainage ditch was ever tested for pollutants. No post mortem testing was carried out on the cattle, due apparently to limited veterinary resources.

“Physical cause and effect is therefore not established, and is left to inference only. There are accordingly fundamental evidential gaps, unacknowledged by the sheriff, in finding knowledge on the part of Scottish Water.”

He went on to say: “On the balance of probabilities, we are unable to find that any leakage of sewage occurred other than between June, 2009, and approximately July, 2009; or that this limited leakage was sufficient in volume to reach Stoneyfield Farm; or that Scottish Water knew or ought to have known that it was likely to reach Stoneyfield Farm; or that Scottish Water had any knowledge at any time that sewage had leaked, or would reasonably foreseeably leak, into the field drain at Stoneyfield Farm.”

The Sheriff Principal concluded: “We would be prepared to accept that, were there evidence of sewage being discharged from the defender’s sewers and polluting Mr Scott’s drain, together with evidence of negligence on the part of SW, then a duty of care would arise.

“The evidence, however, does not support those facts. In the event, when SW became aware of just such an event they acted swiftly to remedy the problem.

“Separately, although there was evidence of possible alternative causes for the cattle illness, such as BVD, this was not pressed in the appeal and we do not find convincing evidence of any competing cause. That does not cure the gap in evidence referred to above.”

The Sheriff Appeal Court, therefore, granted absolution to the defenders and continued the cause for a hearing on expenses.