Q: A month ago the Environment Agency began clearing a ditch in our horses’ field. Within a few days, the horses started developing ringworm-like symptoms.
A vet took skin and blood samples which revealed a secondary blood infection. He suspects some sort of poisoning.
The Environment Agency took water samples, which came back clear, but I was told the soil samples it had taken had not been analysed because it didn’t know what to look for.
Twelve horses now have symptoms and we still have no answer. The Environment Agency accepts no responsibility and I am unable to prove otherwise, but it is a coincidence that this has occurred at the same time as the ditch dredging.
What is my legal position?
SB, South Wales
According to Richard Brooks, partner in the racing and bloodstock division of law firm Withy King, a judge will need to see evidence proving that the two events are more than a coincidence.
“If an outside agency had created a risk, with the foreseeable result that your horses were injured, the agency may be held liable,” he explained. “It is unlikely to be good enough simply to tell a judge that the above scenario is too much of a coincidence. The judge would need evidence from a suitable expert. However, without knowing more, it is difficult for me to advise on the relevant area of science.
“There is a process known as ‘pre-action disclosure’, which may oblige the agency in question to produce the compelling evidence that is required to prove the case,” said Richard.
“If a court claim is being considered, the prospective claimant is permitted to demand the potential defendant produces relevant documents. The defendant cannot be forced to undertake tests and other investigations. However, if for example the Environment Agency possesses worksheets, memos and test results that relate to work done and substances — such as herbicides — used, then it should produce copies for you, even if they adversely affect the agency’s case.”
Although in theory an outside agency that had created a risk could be held liable, in this situation the Environment Agency has conducted its own investigations and found nothing linking its work to the horses’ condition.
A spokesman for the Environment Agency said: “We were very concerned about these horses’ well-being. Upon hearing of their condition, we immediately investigated this case. We have found nothing that links our work to the unfortunate condition of the horses, and hope the cause is found soon.
“Our teams carry out ditch clearance work all year round to cut the risk of flooding to thousands of people, and we take the utmost care to make sure it does not harm local wildlife or animals. We did not use any sprays at this site.
“On a separate note, our staff and contractors are fully trained to use herbicides safely and have to get written permission to use them.”
Withy King, tel: 01225 425731 www.withyking.co.uk
Environment Agency, tel: 08708 506506 www.environment-agency.gov.uk
This article was first published in Horse & Hound (15 January, ’09)