SUPREME COURT Farmer’s claim for loss of stock fails

Press, Volume CXI, Issue 32707, 9 September 1971, Page 15

SUPREME COURT Farmer’s claim for loss of stock fails

A claim by a farmer against the Parnassus Pest Destruction Board for $4508, for the loss of 360 sheep, which were killed by 1080 poison laid by the board on his farm to kill rabbits, failed

in the Supreme Court yesterday. Mr Justice Wilson gave judgment for the defendant. The plaintiff, Paul David Horndon Bush, of Parnassus, originally claimed $5040, but the claim was reduced because wool was salvaged from the carcases. . Messrs P. T. Mahon, Q.C., and A. Forbes appeared for the plaintiff and Mr C. B. Atkinson for the defendant. The hearing began on Tuesday. His Honour found that the sheep were killed by 1080 poison spread by the board. The board, he said, was carrying out a dangerous operation in spreading a highly poisonous substance and it owed a duty of care to the plaintiff to ensure that stock was not lost through that operation. “The plaintiff was as honest, frank, and truthful a witness as I have met, and he said quite candidly that as deputy-chairman of the board at the time he knew of the understanding that he should refer to the board’s foreman before restocking. He also frankly agreed that he did not do that and that he replaced the stock at his own risk,” his Honour said. Mr Mahon had said that the plaintiff was in ignorance of the real risk because he thought that when the carrots disappeared it was safe. The plaintiff had restocked at his own risk, said his Honour, and in his opinion the foreman of the board had done all that was required of him.

Ivan Elson Giles, foreman of the defendant board, said in evidence that lib of 1080 poison was used for each ton of carrots. When he received a request from a landowner for his view on the safety of returning sheep after poisoning he would study the block, and if he considered it safe he would let it back. Three weeks between poisoning and the .return of stock was a very short period in the circumstances. Any carrot left at this time would still be in first-class order, as it was one of the heaviest periods of frost in six years. Although the carrot probably coud not be seen very easily it would be lodged in tussock and rocks and would be preserved by the frost. “We have had cases where farmers were anxious to get land back and 1 have discussed with them the risk to stock. I have had cases where they have elected to take the risk,” the witness said. Discussion at meeting

At the meeting of the board two days after Mr Bush put the stock back the witness told Mr Bush that he thought it was too soon and that Mr Bush was taking a great risk. Mr Bush replied that he had checked the land himself and that he felt that it was all right.

After the dead sheep were found Mr Bush told the witness that he (Mr Bush) accepted the blame. Mr Bush was distressed at the time. To Mr Mahon the witness said that he did not telephone Mr Bush and fell him it was dangerous to leave stock there because Mr Bush was a highly respected and most progressive farmer, had been on the board for a number of years, and was its deputy-chairman at that time.

Francis Frederick Wilding, a farmer, said that he was the chairman of the board at the time the stock was lost.

“Because of the number of dead sheep we realised that the deaths must have been caused by 1080 poison and we discussed what we should do about it,” he said. “I advised Mr Bush to put in a claim in case the board had been negligent. He said that he didn’t feel that he should, because he felt that he was probably the one that was negligent. We discussed the various things that the board could have possibly done wrong. I think that it was probably then that he felt that he should put in a claim against the board,” said the witness. Addresses by counsel In his final address Mr Atkinson said that the board did have a system of regulating the restocking of land after the poisoning. The plaintiff was not only experienced, but had confidence in his experience and judgment. He knew of the system of reference to the foreman before restocking took place and if he did not do so he restocked at his own risk. When the foreman learnt of Mr Bush's action he was dealing not only with his boss but also with a man who knew the system and the rules. Two days after the stock was replaced the foreman made his views known and the plaintiff took no steps to remove the stock and still relied on his own knowledge. The danger was known and recognised by all concerned and it was the plaintiff’s action in electing to return the stock which caused the loss, Mr Atkinson said. Mr Mahon said that it was the responsibility of the board spreading this lethal material to see tha‘ landowners knew of the dangers. The plaintiff was not informed that it was still dangerous to return stock even after the carrots had apparently disappeared. •