Sheriff Appeal Court absolves water company of wrongdoing after farmer alleged cattle infected by sewage discharge

About this case:

• Citation:
  [2022] SAC (Civ) 30
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

Pursuer and respondent Iain Scott originally raised the action alleging that the defender and appellant was in breach of its duty to take reasonable care in its statutory duties in respect of sewer maintenance on the island. It was found by the sheriff that the defender had known of contamination within the system but failed to notify Mr Scott. The defender challenged the sheriff’s approach to the case and sought for the evidence to be re-examined.

The appeal was heard by Sheriff Principal Nigel Ross and Appeal Sheriffs Thomas McCartney and Robert Fife. Di Rollo KC appeared for the appellant and A McLean KC appeared for the respondent.

Discharge of sewage

In May 2008, the respondent noticed that a calf from a herd of beef cattle at Stoneyfield Farm was sick. The calf 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 unable to identify the medical cause of the malaise or any environmental cause.

On 26 August 2010 the respondent noticed sewage in the field drain where the calf had died in 2008. The sewage 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 SW in 2009 after it had been seen discharging sewage onto the surrounding land. The defects in the sewer were fixed by SW, and subsequently cattle were able to return to the field without further regular sickness.

The respondent 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 the appellant 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 heard from December 2015 to January 2019, the sheriff eventually produced his judgment on 30 December 2021 awarding damages of £272,711.28. He found that the pursuer’s cattle had drank water contaminated by pollution and had not warned him of the dangers posed by the contamination.

Senior counsel for the appellant submitted that the sheriff, in finding for the pursuer, had failed to address or analyse questions of law and failed to explain the findings in fact on which he based his conclusions. Additionally, he had failed to explain why he preferred particular witnesses, had double-counted damages and had wrongly awarded solatium. Because of these shortcomings, it was necessary for the court to start again and consider in detail the transcripts of evidence.

Gap in evidence

Sheriff Principal Ross, delivering the opinion of the court, was critical of the 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 SW 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 observed: “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 SW.”

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 SW knew or ought to have known that it was likely to reach Stoneyfield Farm; or that SW 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 assoilzied the defenders and continued the cause for a hearing on expenses.