Supreme Court
Action No. 127 of 1980
7th August 1984
Moe, C.J.

Mr. Denys Barrow for the Plaintiff
Mr. N. Dujon for the Defendant

Claim for damages for killing of plaintiff's bull by defendant's bull - allegation of mischievous propensity in defendant's bull not proved - evidence showing defendant's bull caused death of plaintiff's bull - defendant's bull at the time trespassing on land in occupation of plaintiff - duty of defendant to prevent trespass by his bull - defendant liable for all natural consequences of the trespass and so for death of plaintiff's bull -submission that pleas of scienter and negligence bar plaintiff from relying on cattle trespass - failure to describe entry as "wrongful" in pleading not bar to reliance on cattle trespass - counterclaim for damage to 11 acres of defendants' cane not allowed - loss specifically pleaded not established - judgment for plaintiff in the sum of $1800.00 with interest thereon at 6%.

J U D G M E N T

The Plaintiff claimed damages for injury done by the Defendant's bull on 19th February, 1980. He pleaded firstly:

"2.	The Defendant's bull was of a fierce and mischievous disposition and accustomed to attack and gore other cattle, and the Defendant wrongfully kept the said bull, well knowing that it was of such fierce and mischievous nature and so accustomed.
3	On or about February 19th, 1980 the Defendant's bull entered a pasture in the occupation of the Plaintiff and attacked and gored the Plaintiff's bull which was feeding thereon, killing the Plaintiff's said bull.
3A	In the alternative, the Defendant negligently allowed his said bull to stray into the said pasture in the occupation of the Plaintiff and there to attack and gore and kill the Plaintiff's bull."

The Defendant denied scienter. While admitting that the Plaintiff's bull was killed by his bull, he averred that the death was occasioned by the Plaintiff's bull escaping from its pasture and provoking the Defendant's bull.

It was conceded that the allegation of mischievous propensity in the Defendant's bull was not established. There was clear evidence that about 8:00 a.m. - 8:30 a.m. on the 19th February, 1980 the Defendant's bull was on the pasture occupied by the Plaintiff and about 25 yards from a wire fence which separates the Plaintiff's pasture from the land in the occupation of the Defendant. At that spot, the Defendant's bull fought with and gored the Plaintiff's bull. The Defendant himself chased his bull from that spot about 9:00 a.m. The Plaintiff's bull died from the injuries it received from the Defendant's bull.

I held that the Defendant's bull, at the time, was trespassing on land in the occupation of the Plaintiff. The Defendant had a duty to prevent his bull from trespassing on the land in the occupation of the Plaintiff. The Defendant is liable for all the natural consequences of the trespass and thus liable for the death of the Plaintiff's bull.

It was submitted by Counsel for the Defendant that the Plaintiff, having pleaded scienter as in paragraphs 2 and 3 and negligence in paragraph 3A, cannot now succeed on the basis of cattle trespass. In my view, while paragraphs 2 and 3 of the Statement of Claim, as set out above, alleged injury committed by an animal known to be of mischievous disposition and wrongfully kept, paragraph 3 by itself raised the issue of trespass. Although the paragraph does not contain the word "wrongfully" before the word "entered", I do not think that the Plaintiff's claim must fail on the basis of that omission.

The Plaintiff satisfied me as to the value of the bull killed and I allow the amount claimed, $1,800.00.

The Defendant counterclaimed against the Plaintiff and joined her husband, Nathaniel Moguel, to this claim alleging that "Between the months of December, 1979 and February, 1980, their cattle strayed into and trespassed upon the Plaintiff's to counterclaim said canefield and ate the cane growing thereon and caused damage". He gave particulars of damage resulting to 11 acres of cane: $24,984.00.

The Defendant's evidence was that in June 1979, just after the rain, he planted 11 acres of cane which he intended to sell to the sugar factory. Almost every day the Plaintiffs' cattle came through and ate down the canes. By February 19th, 1980 the 11 acres were totally destroyed. He later said that at the time his canes were destroyed by the Plaintiff's cattle, the canes were 8 months old; that is, they were eaten about February 1980. The 11 acres is about 100 yards behind the Defendant's house. He said a creek runs through the 11 acres east to west with about 3 acres to the south of the creek. He should have got about 400 tons out of the 11 acres and a price of $61.82 per ton. However, evidence of his witness, whom he had employed to cut cane, was that he cut cane behind the Defendant's house continuously between 4th January and 19th February 1980. By that date, in that area, he and the other workers had finished cutting cane near to the boundary between the Defendant's and the Plaintiff's, leaving about 30 tasks to be cut from 5th May, 1980. The cane-cutter's evidence, as I understood it, was a direct contradiction of the Defendant's evidence, the cutter's evidence being that in that section of the Defendant's canes near to the boundary with the Plaintiff's land, canes had either been cut down to be sent to the factory or canes were left standing to be cut down. This was not consistent with the evidence of there being no canes over 11 acres. Consequently, although I accepted that the Plaintiff's cattle had from time to time gone into the Defendant's field and eaten cane, the Defendant did not establish the loss specifically pleaded and I did not allow the amount claimed under that item.

Judgment for the Plaintiff in the sum of $1,800.00 with cost thereon at 6% from 5th May 1980.

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