Business Clinic: Can we get paid for our condemned cow?

Whether you have a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help.

Here, Russell Reeves, partner, Thrings, advises on compensation for condemned stock.

Q We sold a cull cow at market that was subsequently condemned by the Food Standards Agency (FSA) at the abattoir for suspected TB and we were placed under movement restrictions. 

This cow had tested negative for TB during our annual herd test (8 May 2018) only 56 days prior to slaughter. The culture from the sample taken at the abattoir came back negative for TB from the Animal & Plant Health Agency (APHA). 

The cow made £1,200 at market. We have not been paid anything as it was condemned by the FSA.

If this cow had TB it would have been picked up during our annual TB test, she would have been slaughtered as a reactor and we would have been compensated for her by APHA.

See also: Business Clinic – when a widow is not included in the will

When the APHA phoned to say that movement restrictions had been lifted I queried whether in fact she did have TB. They replied no, as they couldn’t prove it.

We feel very aggrieved that we have been deprived of £1,200 with no proof of anything being wrong with the cow.  APHA suggested we complain to the FSA. Please can you advise us of the legal position.

There are three legal issues that need investigating:

  1. Whether the FSA has been negligent in its determination that the cow was unfit for human consumption;
  2. Whether your vet has been negligent in the test carried out on 8 May 2018; and
  3. Whether the buyer can refuse payment despite the cow being sold at auction.

Claim against FSA

In order to bring a successful claim for negligence against the FSA, you would need to prove:

  •  that the FSA had a ‘duty of care’ in relation to the tests it carried out at the abattoir;
  •  that the FSA breached its duty of care in relation to these tests; and
  •  that you have suffered consequential financial loss.

The first two are relatively easy to prove. The first point because the FSA is a regulated government body responsible for ensuring the quality control of food intended for human consumption.

As a result, it was tasked with carrying out checks on the cows at the abattoir. The second point because you have lost the value of the cow.

In order to prove the second point – that the FSA has breached its duty of care – you would need an expert vet to confirm in writing that the FSA failed to use reasonable care and skill throughout the process and that consequently the FSA incorrectly condemned the cow.

Ideally that vet would want to inspect the carcass or, at the very least, photographs of the carcass.

Given the passage of time, I suspect these are no longer available – which could present you with difficulties.

The vet would also wish to consider any relevant FSA paperwork (particularly any contemporaneous notes), which the FSA has a duty to send you should you request it. 

Claim against your vet

You should also consider the extent to which the on-farm TB test on 8 May 2018 was carried out with reasonable care and skill. Again, you will need advice from a new expert vet to determine any negligence.

Why has the buyer not paid for the cow?

You should also investigate why you have not received the monies.

One of the advantages of selling property at an auction is the certainty that the contract becomes binding at the drop of the hammer.

The buyer is then obligated to complete the purchase on the date stated in the sales contract.

You will need to review the sales contract in order to see what the terms are in relation to payment from the buyer.

Importantly, you will need to consider whether there are any restrictions in the contract that could prevent the buyer making payment in a situation like this.

I suggest contacting the market for a copy of the terms and conditions that governed your contract. It may be that the buyer should have paid you but has failed to do so, in which case you may have a claim against the buyer for the purchase price.

Alternatively, there may be an express or implied term of the contract that the buyer can reject the cow within a period of time should it not be of satisfactory quality or fit for purpose.

The terms of sale are key and require consideration before I can advise you on this point.

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