Donaldson v Wilson

1. LORD JUSTICE BROOKE: This is a renewed application by the defendant for permission to appeal against the decision of Mr Recorder Bullock sitting at the Middlesbrough County Court on 24 October 2003 when he gave judgment for the claimant on matters of liability and gave further directions for the remaining conduct of the trial.

2. The case raises a fairly short point. Unhappily, there was a road traffic accident on the B1257 in Helmsley to Stokesley Road in North Yorkshire at 10.50 on the night of 26 October 2000. Cattle had strayed from Mr Wilson's upper field where there was a gate into a lower field which belonged to a dilapidated farm called Holme Farm which, for all practical purposes, was unoccupied, with dilapidated gates opening out on to the main road. Unhappily the cattle went through Mr Wilson's gate, down the bank into the Holme Farm farmyard and then up an unfenced track, turned left onto the main road and walked quite a long way along the main road before Mr Donaldson had his unfortunate accident with them on his motorcycle in which he was quite seriously injured.

3. The recorder, after hearing the evidence on one day, in a careful judgment came to the conclusion that there was a foreseeable risk that Mr Wilson's gate would at some time not be shut by walkers, the cattle would go down into the unfenced Holme Farm and into the road, and in view of the quite small cost of Mr Wilson taking steps to secure his gate he considered that Mr Wilson was in breach of his duty of care to Mr Donaldson who was foreseeably using the road when he ran into Mr Wilson's cattle. Paragraph 14 of the recorder's judgment sets out his approach to the matter. Without being prescriptive, he suggested that there were a number of different steps, including the installation of self-closing gates, which could have been installed at a cost between £30 and £40. In general, he said that there were lots of things that could have been considered and lots more could have been done to ensure that cattle did not get out of Mr Wilson's field and foreseeably stray on to the main road because a walker had carelessly left the gate open.

4. Pill LJ when he refused permission to appeal said that the recorder rightly considered the facts and circumstances of the particular case and he was entitled to conclude that in the particular circumstances the defendant was negligent. I, for my part, would adopt the same approach. On the particular facts of this case I would consider that there is no real prospect of success on the appeal.

5. Mr Grenyer, however, has been instructed in the matter by insurers who have very widespread responsibilities for insuring farmers and are very concerned that this case sets a higher standard of care for farmers with animals in their fields than has previously been identified in any reported authority. He suggests forensically that the courts are demanding an unrealistic standard of care both of farm owners, in particular, and animal owners in general in the context of the recorder's judgment.

6. If the insurers are so anxious about the potential ramifications of this decision, I am willing to consider that there is a compelling reason that this case should proceed to the Court of Appeal, but given my view on the first leg of the test I consider that it should only proceed on condition that the defendant indemnifies the claimant for his costs in the Court of Appeal in any event, including the costs of any respondent's notice that he may be advised to submit, and that the order for costs in the court below should remain undisturbed in any event. If the defendant's insurers, having been informed of the conditions on which the court is willing to permit this appeal to proceed, are willing to accept these conditions, then the appeal may proceed. They may have 21 days instead of the normal 7 to serve the notice of appeal so that they can have time to consider whether they wish to accept the conditions. (Application granted; no order for costs).