Fannning-McCormack v Gowing





Tort - Negligence - Veterinary surgeon - Alleged misdiagnosis and mistreatment of injury to colt - Claim in contract - Whether product used by plaintiff was defective or not reasonable fit for its purpose


Judgment of His Honour Judge Bryan McMahon, delivered on the 11th day of June, 2002 at (Please insert the town where you sat)

1.The Proceedings

These proceedings were commenced by Equity Civil Bill dated the 16th March, 2000, in which the plaintiffs claim damages from the defendant, a veterinary surgeon, for negligence, breach of contract and breach of warranty, for alleged misdiagnosis and mistreatment which caused injury to their colt foal. The defendant denies the claim and has filed a full defence.

2. The Facts Not In Dispute

It is common case in these proceedings that on or about the 23 rd March, 1999, the second plaintiff asked the defendant, who was visiting their yard in respect of one animal, would he examine another colt in the yard. When the defendant examined the colt he made a diagnosis and recommended that the second plaintiff should apply to the hock area “a rub” which the defendant was to supply. The defendant’s


instructions were that the rub was to be brushed on lightly for a couple or three days. There was a delay of five weeks or so before “the rub” was made available to the second plaintiff, and when it was eventually supplied, the second plaintiff claimed he followed the instructions verbally given to him by the defendant in March, and also the written instructions (such as there were) on the carton which contained the lotion. Shortly thereafter, the horse became lame, developed an open wound and finally had to be put down.

3.Matters Not Agreed and Which the Court has to Determine

There was divergence between the second plaintiff and the defendant as to what exchanges took place in the farmyard on the 16th March, when the defendant was first consulted about the colt the subject of these proceedings. The second plaintiff alleges that on the day in question, when the defendant had finished examining one animal, the second plaintiff asked him to have a look at the colt in question. In evidence the second plaintiff said that the colt had suffered a capped hock in January of that year, which had been properly treated in a conservative manner by the plaintiffs’ regular veterinary surgeon (Mr Stafford) at the time. The animal had well recovered by February, but when the swelling was gone according to the second plaintiff, there remained a flap of loose skin under the hock, which the plaintiffs considered to be unsightly and which, if it remained, might effect the value of the animal when it was eventually put up for sale the following November. The Plaintiffs own veterinary surgeon refused to treat the problem and indicated that the loose skin should be left alone. The plaintiffs, however, were anxious to have a second opinion, and the second plaintiff took the opportunity of consulting with the defendant while he was in the plaintiffs yard on the 16th March. The plaintiff stated that the animal was otherwise in perfect health and the only reason that the defendant


was consulted at all was because they wished to know if any suitable treatment could be recommended which might improve or cure what was only a cosmetic blemish. The second plaintiff said that the colt was taken from the stable and walked up and down the yard on the day in question and that the defendant recommended “the rub” as being suitable treatment for this loose flesh.


The defendant, on the other hand, while agreeing that he was consulted on the day, maintained that when the second plaintiff asked him to look at the horse, he said to the defendant that the horse had had a bang. The defendant said he examined the animal in the stable and that he was not walked out, that he found a chronic swelling on the colts’ leg and that he recommended “the rub” for the swelling.


Strangely enough, this is the most serious difference on the facts between the parties, and ironically it is not hugely determinative for two reasons. First, it is clear on both versions, that neither party considered that they were operating in an emergency situation or that the problem was urgent. The plaintiffs thought they were dealing only with a cosmetic blemish and the defendant thought he was dealing with a chronic well established swelling, the residue of a capped hock that had largely resolved in February. The delay in delivering “the rub” by the defendant, which he admitted was his fault, indicates how he viewed the situation. Moreover, the plaintiffs’ view is also indicated by the patience he showed in waiting for the lotion and his further delay in applying “the rub” when he was finally furnished with it. Second, the defendant gave evidence, which the counsel for the plaintiff never challenged, that even if he had the same understanding of the problem as the plaintiffs had, he would have recommended the same treatment. In other words, if the defendant thought he was dealing only with loose skin, the residue of a former capped hock, he


would have recommended the same treatment, that is, the application of “the rub” in the manner recommended to the affected area.


The only other factual matter that concerns the Court is the allegation by the plaintiffs, that when they noticed that their animal had a bad reaction to “the rub”, and they requested help from the defendant, he was slow to respond and that this tardiness was in breach of his contract and that, had the response been quicker, the injury to the horse might have been avoided. I will deal with this aspect of the matter in detail later in this judgment.


For the purpose of this judgment, therefore, we can take it that there is no on the relevant facts.

4.Legal Issues to Be Determined By the Court

What the Court must concern itself with, however, is whether the remedy suggested, “the rub”, was appropriate, or safe and whether it caused the injury that eventually occurred to the plaintiffs animal.

5.The Plaintiffs’ Case

The plaintiffs claims are that the defendant failed to diagnose the animal’s illness, failed to treat it properly, prescribed an incorrect veterinary product and failed to respond in a timely fashion to a request to examine the animal when...

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