Scottish Sheriff Court Decisions

SA1046/8 IN THE SHERIFF COURT OF LOTHIAN AND BORDERS

AT EDINBURGH

 

JUDGMENT OF SHERIFF FRANK R CROWE

IN SMALL CLAIM

RONALD O'FARRELL

17 Bavelaw Crescent

Penicuik Midlothian EH26 9AX

PURSUER

Against

 

STEPHEN MORONEY

Palmyra, High Street

Brotherton, Nr Knottingley

West Yorkshire WF11 9EY

DEFENDER

 

EDINBURGH 17th OCTOBER 2008 The sheriff having resumed consideration of the cause finds in favour of the defender, reserves the question of expenses meantime, assigns a diet of assessment and a diet of approval of expenses.

 

 

INTRODUCTION

[1] This is a small claim in which the parties appeared in person. The pursuer sued for £900 being the price paid for a 3/4 Gyr-1/4 Peregrine Falcon which he purchased from the defender. Unfortunately the bird died 25 days later. The case involved consideration of Section 48A of the Sale of Goods Act 1979.

 

[2] The case proceeded before me as a proof on 3 September 2008. The parties gave evidence and the only other witness called was a mutual friend Neil Hunter. I found the witnesses all to be of an extremely high calibre and all had considerable knowledge of falconry. The dispute centered upon whether the bird had been healthy when sold.

 

THE AGREED FACTS

 

[3] The pursuer has kept birds for falconry as a hobby for over 35 years. Through Mr. Hunter the pursuer was introduced to the defender and on 2 July 2007 purchased an 8 week old 3/4 Gyr-1/4 Peregrine Falcon from the defender at his premises in Yorkshire. The bird weighed between 2lb 9 1/2 ounces and 2lb 11 ounces when sold.

 

[4] The defender has premises as designed above, near Pontefract and has been engaged in falconry for 40 years. He has bred falcons in captivity for 20 years and usually rears about 30 birds a year which he sells for around £1,000 each once they have been reared.

 

[5] Following the purchase of the bird the pursuer took it home where he has outside cages and huts to accommodate several birds to pursue his hobby of falconry. Initially the pursuer concentrated on "manning" the bird; that is acclimatizing it to its new surroundings and feeding it from the glove. It recovered quickly from being separated from its family and being taken to Scotland.

 

[6] The bird continued to make good progress and the pursuer was careful to check its droppings for any sign of disease. Training began and this involved the bird flying for brief periods over short controlled distances. The bird's weight was checked each day and gradually its weight reduced to 2lb 3 3/4 ounces which appeared to be its optimum weight for falconry. It is best to have such birds flying at weight which keeps them fit and hungry. Since they are regularly fed when in captivity there is no need for the birds to store up weight as they would do in the wild where food might become scare at times.

 

[7] The pursuer was pleased with the bird's progress and kept Mr. Hunter up-to-date with regular telephone calls. The bird made short flights on a line as part of his exercise and strength building and began to make free flights after the pursuer had him for 21 days.

 

[8] On 26 July 2007 the pursuer took the bird out for a training flight. The pursuer was pleased with the bird's performance and took the bird home and returned it to its cage. The next morning the pursuer found that the bird had vomited in the night and was lying dead near its perch.

 

[9] The pursuer took the bird to SAC Vetinary Services at the Bush Estate Penicuik where an autopsy was performed. The terms of the autopsy report were agreed. The report concluded that the bird died as a result of E coli bacteraemia or colisepticaemia. This had occurred following a change in exercise regime. Gross changes found in the bird's intestines had been due to local effects of toxins produced rather than by direct action of bacteria. The toxins would have led to the rapid death of the bird once absorbed.

 

[10] It was accepted that E coli was present in was present in birds and that normally birds can resist these organisms but if a bird comes under stress it could lead to a lowering of immunity whereby the bird can become susceptible to these organisms which then multiple rapidly leading to sickness or death.

 

[11] The pursuer had earlier reported to Mr. Hunter the good progress the bird had made told him of the bird's death and this was communicated to the defender. The defender had sold the bird on the basis that if it fell ill or died within 7 days of purchase he would refund the purchase price.

 

[12] Standing the terms of the autopsy report the defender refused to refund the pursuer or reach a compromise with him. Acting on advice from Midlothian Council Trading Standards Department the pursuer wrote to the defender referring to the terms of section 48A of the Sale of Goods Act 1979.

 

[13] Sections 48A-F of the 19709 Act were brought into force in 2003 by the Supply of Good to Consumers Regulations 2002 SI 3045 following upon an EC Directive 1999/44; [1999] O.J. 171/12. Read short these provisions, among other things, entitle a purchaser in a consumer contract to seek a replacement or rescind the contract if the goods did not conform to the contract at the time of purchase. This right can be founded upon if at any time within 6 months of the goods being delivered they are found not to conform.

 

[14] Despite writing on two occasions to the defender the pursuer was unable to secure a satisfactory resolution to the matter and accordingly raised these proceedings on 11 March 2008.

 

THE DISPUTED FACTS

 

[15] The pursuer's position was simply that as an experienced falconer he had done all that was reasonable to train and develop the bird but after a very short time in his ownership the bird had died. Accordingly the bird must have had an underlying illness or condition which manifested itself after this brief period and well within the 6 month time limit set out in sections 48A et. seq. of the 1979 Act.

 

[16] The defender's position was that the bird was healthy when it was sold at 8 weeks, after rearing and the usual guarantee of repayment if serious illness or death occurred within 7 days of purchase was reasonable since this was the likely incubation period of any illness which might be building up at the time of sale.

 

[17] The defender also stated in evidence that had the autopsy report showed an inherent defect in the bird he would have refunded the purchase price. He had replaced birds on two occasions in 15 years. Sale at 8 weeks meant that any congenital problems ought to have manifested themselves and the only concern would be if the bird was harbouring an illness or disease in which case this ought to become apparent within a few days.

 

[18] Mr. Hunter is a pest control officer who uses falcons professionally to clear sites of seagulls etc. His evidence was that he had had a series of telephone calls from the pursuer after they had attended at the defender's premises on 2 July 2007 to purchase falcons. Mr. Hunter said that the pursuer had been delighted with the bird and its progress until its sudden death.

 

[19] Mr. Hunter had taken a series of telephone calls from the pursuer after the bird had died and the autopsy had been performed. He had acted as a "go-between" with parties in the aftermath of the bird's death until he felt he was in an "invidious position" since he felt it was putting pressure on his friendship with the two men, particularly with the pursuer.

 

[20] Mr. Hunter recalled that the pursuer had told him that on what proved to be the bird's last flight on 27 July 2007, he had managed to get the bird to fly up to 800 feet to catch a piece of food attached to a kite. On the previous flight undertaken by the bird earlier in the week it had flown up to 200 feet to recover a piece of food from the kite.

 

[21] The defender did not consider it his duty to refund the purchase price since he considered the pursuer had brought on the bird "too far and too fast". He said that falconers had always to guard against putting their birds under stress since this could result in endemic bacteria and viruses manifesting themselves as illnesses or disease which could overcome the birds' immune systems. The defender considered the pursuer's training regime, particularly with the step change upwards in height for the bird's last flight, was too rigorous, as a result of which the bird had developed an infection and died as a result of stress. He noted that the autopsy report conclude the bird died "following a change in exercise regime."

 

[22] The defender said that he was careful to sell young birds to persons he knew to be competent falconers. He was persuaded to sell the bird to the pursuer, who he did not know previously on the basis of Mr. Hunter's recommendation. The defender understood that the pursuer had never owned a 3/4 Gyr bird and concluded that the pursuer had not appreciated they were more delicate than 1/4 or 1/2 Gyr hybrids.

 

DISCUSSION

 

[23] Clearly there was a substantial difference in testimony between the parties as to whether the bird had died suddenly and unexpectedly as a result of some inherent defect or whether it had died following upon a significant change in its exercise regime which had placed it under undue stress leading to its death.

 

[24] As regards sections 48A to F of the Sale of Goods Act 1979, I consider they apply in this case. There was clearly a consumer contract in which the pursuer was the buyer and consumer and the defender was in the business of selling falcons. Notwithstanding the defender's contention that the terms of the sale allowed the pursuer to recover the purchase price within 7 days if not delighted with the bird, it seemed clear that the additional rights provided to the buyer in consumer cases by Part 5A of the 1979 Act could apply in this case. These rights were to seek a replacement bird or repayment of the purchase price. The other rights under these provisions, namely repair or a price reduction are not relevant in these proceedings.

[25] I have no doubt these provisions were introduced in an increasingly complex world where no end of inspection by a purchaser or even an expert employed by the purchaser might fail to discover an inherent defect in goods particularly if they were a high performance car or a computer with a multitude of functions. The 6 month period prescribed by law is a reasonable period for a purchaser to use and try out goods to their full potential and thereby find any inherent flaws. Similarly it is a reasonable period for goods of whatever type to perform satisfactorily or a fundamental defect to become apparent.

 

[26] Section 48A (3) of the 1979 Act states that:-

"goods which do not conform to the contract at any time within the period of six months starting with the date on which the goods were delivered to the buyer must be taken not to have conformed at that date.

(4) Subsection (3) above does not apply if-

(a) it is established that the goods did so conform on that date;

(b) its application is incompatible with the nature of the goods or the nature of the lack of conformity."

 

[27] Accordingly if the pursuer establishes that at any time within the 6 month period from date of purchase the bird was not capable of being trained for falconry then it can be inferred the bird was in such a condition at the time of sale and thus the pursuer would be entitled to a replacement bird or a refund of the purchase price.

 

[28] On the other hand if the defender is able to establish that the bird "was in good health and perfect condition" (in terms of the receipt for sale which had been provided retrospectively when parties were in contact with one another after the bird's death) and the death was due to stress induced by the pursuer pressing a young bird beyond its capabilities, then the defender would discharge his liabilities notwithstanding that the bird died a few weeks after sale and well within the 6 month period.

 

DECISION

 

[29] As indicated above I found all witnesses to be well-versed in the world of falconry and it was clear that the pursuer had considerable experience of training and flying birds over a lengthy period. The defender was slightly older and had 5 years more experience of training and flying birds and had extensive experience in rearing birds and selling them for a living.

 

[30] I considered that the defender had greater expertise because he had been involved professionally, breeding and rearing birds. He also was aware that while 3/4 Gyr hybrids trained into excellent falcons they had to be handled more carefully than hybrids which had less of the Gyr mix in their genes. It was clear that the birds have to be trained like athletes, to be lean and fit to maximize their flying potential as hunters or to perform related tasks. As such these birds have to be closely monitored and weighed to keep them at their optimum weight and not over-stressed so that they might become susceptible to bacteria and viruses which will be present in the bird but normally kept under control by a healthy immune system.

 

[31] The pursuer specifically denied the allegation put that he had latterly been training the bird by flying it freely towards a kite which was loaded with bait and flown at increasing heights. The pursuer said he did not use that technique for this young bird. Nevertheless Mr. Hunter's evidence was clear that the pursuer had told him around the time of the bird's death he had flown it to a kite first at 200 feet and on its last flight, the evening before its death, up to 800 feet.

 

[32] I found Mr. Hunter to be a thoroughly credible and reliable witness and preferred this chapter of his evidence to the pursuer's version. In other respects I found the pursuer a good witness but rejected his evidence about the last part of the bird's training regime. Mr. Hunter thought at the time a flight up to 800 feet for a young bird was ambitious but he said that like fishermen falconers tend at times to exaggerate.

 

[33] Based upon Mr. Hunter's evidence at that found at autopsy I have concluded that the pursuer having nurtured the bird carefully over-extended the bird on its final flight. This was to some extent understandable as the bird had pleased him greatly and was well up to his training schedule. However the final flight represented a step change upwards from the previous flight and in the event this proved too much for the bird which became stressed, developed E coli from its gut, was sick in the night and died before the pursuer found him the following morning.

 

[34] I can appreciate the pursuer's shock at this loss but it is clear from the autopsy findings and other evidence that the bird was in excellent condition at sale, thrived through the normal period where underlying illnesses and diseases would manifest themselves and did not die of an inherent defect that would have been present at the time of purchase.

 

[35] Accordingly I am satisfied that the pursuer has not proved his case that the bird did not conform at the time of delivery and I am satisfied that the defender has established that the bird died as a result of stress through being asked to perform an over-optimistic last training flight. It cannot be said that the pursuer was in anyway cruel or negligent. His evidence showed him to be a careful person with a great love and knowledge of his life-long hobby. It is unfortunate that his delight with a precocious bird which by all accounts was a magnificent specimen of its type came to this sad end. A significant factor may have been the pursuer's lack of experience with a 3/4 Gyr hybrid where breeding seeks to produce the optimum falcon but may also lead to a greater susceptibility to stress induced illness.

 

EXPENSES

 

[36] It follows from the above that expenses should follow success. Both parties conducted their cases to a high standard without the use of lawyers. The defender had to make two trips from his home in Yorkshire to defend the action. Accordingly I direct the sheriff clerk to fix a hearing on expenses requiring the defender to lodge a note of his expenses and a diet for approval of such expenses.