‘Devastating’ ruling on poisoned cattle

Iain Scott of Stoneyfield Farm, near Stornoway, was awarded damages last New Year’s Eve after a hearing before Sheriff David Sutherland at Stornoway Sheriff Court.

Scottish Water appealed on grounds that the Sheriff “failed to address or analyse questions of law and had failed to explain the findings in fact on which he based his conclusion in law”

The appeal was heard by Sheriff Principal Nigel Ross and Appeal Sheriffs Thomas McCartney and Robert Fife. Both parties retained King’s Counsel.

In the course of his ruling, Sheriff Principal Ross described the near three year delay between evidence being concluded and the ruling issued as “unconscionable”.

His ruling did not deal with the merits of the case so much as with shortcomings in Sheriff Sutherland’s ruling which was described as “uninformative” and “unsatisfactory”.

The case had its origins in 2008-09 when Mr Scott found some of his herd of breeding cattle at Stoneyfield Farm dying and falling ill for unexplained reasons.

Acting on veterinary and scientific advice which ruled out other options, Mr Scott raised an action against Scottish Water, maintaining the cause lay in discharges of sewage into a field drain.

A nearby sewer manhole had been attended by Scottish Water in 2009 after it was seen discharging sewage.

After 16 days of evidence, the Sheriff found that Mr Scott’s cattle drank water contaminated by pollution.

Sheriff Principal Ross wrote: “The proof of breach depended on knowledge by Scottish Water of discharge of raw sewage, and on a failure to investigate the extent of such discharge and thereafter to provide a remedy”.

However, he added: “The Sheriff made findings in fact which include that the pursuer’s cattle drank water contaminated by pollution from a discharging sewer, and that they thereby ingested pathogens or toxins which caused damage. These crucial findings in fact are only incompletely supported by discussion in the remainder of the judgment”.

He noted Sheriff Sutherland heard from 29 witnesses, while four witnesses called by Scottish Water “appear to have been overlooked”.

The ruling continued: “We are unable to accept, having read the transcripts, 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, or that he has explained his findings in fact in a logical or supportable manner. We have not been able to identify, from the Sheriff’s judgment, whether or not Scottish Water has breached any duty of care towards Mr Scott”.

The Scotts told the Gazette that the ruling was “absolutely devastating, having come so far” and “the last thing we expected”. They now had to consider whether this was the end of the road or if they should seek a further appeal.