Wright v Barrett

JurisdictionJamaica
JudgeCools-Lartigue, J.
Judgment Date02 December 1960
Neutral CitationJM 1960 CA 16
CourtCourt of Appeal (Jamaica)
Date02 December 1960

Court of Appeal

MacGregor, C.J.; Cools-Lartigue, J.A.; Waddington, J.A.

Wright
and
Barrett
Appearances:

David Coore for the appellant.

Vivian Blake for the respondent.

Contract - Agistment - Liability of agister — Death of animal — Onus of proof — An agister is not an insurer — Duty to take reasonable care.

Cools-Lartigue, J.
1

(on behalf of MACGREGOR CJ delivered the judgment of the court: This is an appeal by the defendant from the judgment of the Resident Magistrate, Manchester. The respondent claimed the value of his cow which he alleged died as a result of the defendant's negligence while it was in the care of the appellant under a contract of agistment. The resident magistrate found in favour of the respondent and entered judgment for him. He reduced the damages because he was of opinion that the respondent did nothing to minimise the damages when he learnt of the illness of the cow.

2

The appellant is the lessee of a piece of land at Alligator Pond. In a field was a water hole connected to, and fed from, a nearby river by a drain. The drain and hole were fenced but the fence was in bad repair. There was deep mud around the water hole. The appellant agreed with the respondent that he would take the respondent's cow for service by his bull, the fee being £ 2 for pasturing the cow and for service. On the instructions of the appellant the respondent turned his cow into the field on 1 October 1959. On 7 October, upon the respondent enquiring, the appellant told him that the cow was all right. On 10 October the cow was found fastened in the mud around the water hole, with its body in the mud to a depth of 3 ft 6 ins. The cow was taken out of the mud, was placed on dry ground, but could not stand. Four days later the cow died.

3

The only finding that the resident magistrate made regarding the condition of the cow after its release from the mud was that it could not stand and remained lying on the ground until it died on 14 October. But Woodrow Lindsay, who assisted to extract the cow from the mud, said, that as soon as the cow came out it ate and looked all right. The respondent said that on taking the cow from the hole, it was attempting to, but could not, stand. The respondent also said that on the day following he saw the cow “a little further from where it had been left the day before,” and that he cut a little grass to see if it would feed. But he also said that he told the appellant that he should send for a vet “as the cow was lying in the same position as it had been the day before.” On the following day, presumably 13 October, the respondent said that the appellant told him that the cow was “as good as dying”.Next day the cow died.

4

Three questions arise for consideration:

  • (1) Did the finding of the resident magistrate that the respondent failed to minimise his damage amount to a finding that the respondent's conduct caused the death of the cow?

  • (2) On whom was the onus of proof? Was it on the agister to prove that the cow did not die as a result of his want of care, or was it on the respondent to prove that it died as a result of injuries received from the negligence of the appellant in not maintaining the fences around the water or mud hole?

  • (3) Did the cow die as a result of injuries it received in the mud?

5

Counsel for the appellant submitted that as the...

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