By Christopher McGrath, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Brayshaw v Liosatos [2001] ACTSC 2  

Court – Supreme Court of the ACT
Judge – Higgins J 
Date of Judgment – 19 January 2001

FACTS OF THE CASE

Thomas and David Brayshaw, the appellants, owned a property in an area that had been experiencing drought conditions for several years. Over one hundred head of cattle lived on the property, although the exact number fluctuated from time to time as cattle from the adjacent national park would often wander onto the property and other cattle would leave the property, venturing into the national park.

After receiving a report that the cattle were “weak and sick in nature,” a senior veterinary officer attended the property. After several visits, the veterinary officer gave an account of the welfare of the cattle, which included percentages of Body Score Condition (BSC), as well as references to visible signs of disease and the poor health of the calves. During his visits, the senior veterinary officer advised the Brayshaws that they should provide supplementary food and drench the cattle or otherwise remove the cattle from the land. On a return visit in August 1998, the senior veterinary officer found a dead calf who had suffered liver fluke infestation, which could have contributed to his or her death.

The RSPCA attended the property and upon inspection of the cattle, assumed responsibility for their welfare, although they were not removed. The Brayshaws were then charged pursuant to s 8 of the Animal Welfare Act 1992 (ACT) (‘The Act’) for being persons in charge of the cattle who had both neglected them in a way that caused them pain and failed to provide them with adequate food.

As a defence to these charges, the Brayshaws gave evidence suggesting that the cattle were in “light condition … but strong” and that they had provided supplementary feed to the cattle in the form of hay bales containing oats. They also argued that the 132 head of cattle were drenched in April 1998 but that an influx of feral cattle made it impossible to determine which animals had been drenched.

At first instance, the magistrate found that the defendants’ failure to take sufficient steps to feed or drench the cattle, or to remove them from the land, resulted in their poor condition. The Brayshaws were therefore guilty of both charges. They appealed.

THE ISSUES

  • Whether the Magistrate had failed to take into account certain evidence.
  • Whether the Brayshaws had disputed ownership of the cattle.
  • Whether the charge of failing to provide adequate feed had been made out.
  • Whether the charge of neglect had been made out.

THE DECISION

On appeal, Higgins J found that the magistrate had made several errors.

Evidence

Higgins J held that the Magistrate had incorrectly interpreted the evidence of Dr Andrews. That evidence suggested that “Malnutrition will cause breakdown of body tissues but it is only if that process is prolonged beyond the use of available reserves of body fat that the condition becomes terminal and hence causes suffering to the affected animal”.

Similarly, Higgins J found that the Magistrate had misconstrued the evidence given by Dr Hayes; on a proper construction, this suggested that the weight loss would not necessarily have caused the cattle any pain.

Further, the Magistrate’s findings failed to make any reference to the Brayshaws’ evidence:

that all available cattle had been drenched in April, that cattle had been provided with supplementary feed since May and that there was no evidence that the few cattle found to have been in a terminal or dangerously weak state, as opposed to merely being under nourished, were animals of which the appellants had ever been in charge.

Ownership

Higgins J found that her Worship had erroneously assumed that because the Brayshaws were the owners of the property, they had assumed responsibility for any feral cattle that grazed on it and were therefore “persons in charge” of the feral cattle. The Court observed:

Insofar as feral cattle were incidentally drenched and fed that did not necessarily involve an assumption of control. Only if the appellants took possession of such cattle, for example by removing them to another property, by removing them for sale or branding or marking them as theirs, would they thereafter be responsible for their welfare. In other words, it would only be if they took possession of such cattle so as to treat them as their own that the appellants could be said relevantly to have become the owners of such cattle.

Higgins J referred to evidence that some of the cattle had been drenched and some had been adequately fed. It was therefore concluded that unless the proportion of cattle that was neglected or inadequately fed was so great as to exclude the possibility that the neglected cattle were stray cattle for whom the Brayshaws were not in charge, it could not be proven beyond a reasonable doubt that the Brayshaws’ cattle had been neglected or inadequately fed.

Failure to provide adequate feed

Higgins J was satisfied that the Brayshaws had a responsibility to provide supplementary feed to the cattle, but only to an “adequate” not “optimum” standard. It was also held that Brayshaws had a duty to take reasonable steps to provide supplementary feed. However, there were “practical weaknesses” to this; the stray cattle not belonging to the Brayshaws likely accessed it and some of the Brayshaws cattle simply ignored it. Higgins J found that inadequate feeding could only have been established if the Brayshaws’ evidence that they provided supplementary feed was false, or if the amount of feed was so insufficient that the Brayshaws’ cattle “would not survive the winter save in such a state as they would need to be put down to end their suffering”. The Court found that such a conclusion was not available.

Neglect

Higgins J identified that it was undisputed that the animals had been drenched. As such, the fact that the animals suffered live fluke infestation could only have been attributed to the Brayshaws’ neglect of the animals if a need arose for a further drenching. Higgins J noted that the expert evidence indicated that after the first drenching the condition of the calves was “acceptable” and that no animals were suffering from liver fluke. As such, it could not be concluded that a failure to subsequently drench was “so imprudent as to constitute neglect”. While the lack of method involved in the drenching process may have been that some cattle escaped the drenching and became infested with liver fluke, there was nothing in the evidence to demonstrate that any animal belonging to the Brayshaws had an adverse effect from liver fluke. Therefore, although the drenching “was not done as methodically as it might have been, there was no evidence that any such failure caused ‘pain’ from liver fluke infestation in any animal belonging to the [Brayshaws]”. Higgins J emphasized that this was not a case involving reasonable excuse as a defence to neglect, as neglect had not been made out.

COMMENTARY

Higgins J reinforced that the purpose of the Act is to impose a minimum standard that animal owners must comply with, rather than an obligation to keep animals in an ideal condition.

In addition, the case suggests that even though landowners are aware that stray animals enter their land and mingle with their own livestock, that they will not, without something more, be treated as “persons in charge” of those animals. Indeed, the RSPCA was justified in drenching all animals for liver fluke; however, it assumes a “wider duty of care to animals”.

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