Legal Matters: who is responsible for an animal that died at the mart?

Reader query

Last week I presented a number of weanling heifers for sale at my local mart. In line with COVID-19 restrictions they were dropped at the intake chute and I left for home to watch the animals being sold online. I got a call shortly after the sale had ended from the mart asking was I happy with the prices, which I said I was. Later that night I was informed that one of the animals had injured itself entering the ring and collapsed on leaving it and was put down by the vet on duty. I was told I would not be paid and they are refusing to engage with me. They transferred the animal back to my herd on agfood. What recourse do I have ?

This is a very unfortunate situation you find yourself in. On one hand it is very unfair to expect you to lie the loss of the animal in circumstances where you had dropped a perfectly healthy animal to the mart to be sold while on the other hand, it is very unfair to expect the purchaser to lie the loss of an animal in circumstances where presumably they never received the animal. The mart has a duty of care to you to look after your animals while they are on the premises. Breach of that duty of care can result in liability for losses that were reasonably foreseeable.

Time at which risk passes between vendor and purchaser

Every sale at a mart is governed by terms and conditions of sale. I note from the conditions of sale of the mart that dealt with your sale that it provides that: “Each lot is at the owners risk until sold, but from the fall of the hammer shall be at the purchaser’s risk.” The general conditions also incorporate special conditions, one of which provides: “Where the vendor/agent is not present to sell livestock (other than in the calf ring), the livestock will not be sold ‘subject to owners consent’ unless a reserve has been given to the Auctioneers prior to sale.”

As you had given your consent over the phone that you were satisfied with the prices shortly after the sale, I would opine that the animals were not sold until you gave this consent. At this point, the animals became the purchaser’s risk. Where an animal is negligently handled leading to injury, the mart normally accepts responsibility and compensates accordingly. If they are unwilling to make an offer, you may be left with no option but to take legal action but hopefully it should not come to that.

AIMS system and notification of death

Where animals are presented at a mart for sale, and if they are not sold, they are normally returned to the herd of the owner. However where they are sold, they are transferred to the buyers herd. The mart has returned the animal to your herd, which arguably they should not have done as ownership should have passed on the sale, when you accepted the prices over the phone. Obviously this is causing a difficulty for you as you have an animal in your herd that is no longer in your custody or care. This needs to be resolved immediately as you have to account for all animals in your herd.

Farmers/keepers are taken to mean any person in the livestock sector responsible for animals whether on a temporary or on a permanent basis, including during transportation or at a mart.

A farmer/keeper must contact an animal collector as soon as possible after the discovery of the death of an animal and take note of the date and time of notification. Details of animals must be recorded on the NBAS 31D form which is supplied by the animal collector. The farmer/keeper must sign and date the form and return it to the animal collector. Farmers must surrender the passport for all bovines for collection to the animal collector. Consequently the mart should provide whatever information is required to get the death recorded on the AIMS system.

Redress in the event of a dispute

The terms of sale of the mart provides that in the event of a dispute the purchasers redress, if any, shall be against the vendor and the vendors remedy shall be against the purchaser and not against the auctioneers who act as agents between the vendor and purchaser. However it is difficult to see how this could be applied in your situation.

The Property Services (Regulation) Act 2011 applies to all property service providers including marts. While there is a complaints system available, it is limited to “improper conduct” and unfortunately I do not think that your complaint falls within the statutory definition of improper conduct in respect of licensees. That said you could make a complaint to the Institute of Professional Auctioneers and Valuers (IPAV) assuming the auctioneer is a member www.ipav.ie/profile/complaints-disciplinary-procedures. Subject to the decision of the Disciplinary Committee there may be a case for an inquiry. Alternatively you may commence legal proceedings and the IPAV will not investigate until the final outcome of the legal proceedings. CL

Summary

In this instance, the mart has a responsibility to compensate the owner. The owner needs to talk to the mart manager and if they are not prepared to take some responsibility, he needs to either take legal action or make a complaint to the IPAV.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors, does not accept responsibility for errors or omissions howsoever arising. Email aisling@agrisolicitors.ie