Kalari Pty Ltd v Berry
[2004] VSC 473
•19 November 2004
N
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4450 of 2002
| KALARI PTY LTD (ACN 004 595 395) | Plaintiff |
| V | |
| KELVIN NOEL BERRY | Defendant |
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JUDGE: | ASHLEY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 November 2004 | |
DATE OF JUDGMENT: | 19 November 2004 | |
CASE MAY BE CITED AS: | Kalari Pty Ltd v Berry | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 473 | |
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Torts – Collision between motor vehicle and cattle straying onto highway – Property damage – Whether cattle were those of the defendant – Duty of care – Breach of duty
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Purvis | Eggleston Mitchell |
| For the Defendant | Mr C. Johnson | Stewart Thompson & Francis |
HIS HONOUR:
Statement of the Case
On 11 November 1999 a Kenworth Prime Mover hauling B double trailers along the Hume Freeway near Wangaratta collided with two cattle which were on the roadway. The prime mover and trailer were owned by the plaintiff, Kalari Pty Ltd. The prime mover was being driven by the plaintiff’s employee, Edmund Monahan. In an attempt to avoid the cattle, Mr Monahan had swung his vehicle to its right. This manoeuvre, rather than the vehicle striking the cattle, caused it to tip over. The prime mover and trailer were damaged. Goods in transit were damaged. The collision site had to be cleaned, and there was a cost in that. Whilst the vehicle was off the road income was lost. At trial the damages were quantified, by agreement, at $224,818.86.
The cattle were killed. At least one of them, probably both, are depicted in exhibit D.
The claim is brought against Kelvin Noel Berry. The statement of claim pleaded that he was the occupier of a property at or about the corner of the Greta Road and the Hume Freeway and that he was the owner of the cattle which strayed onto the Freeway. By his defence, he did not admit occupancy of the land or ownership of any pertinent cattle. He denied that the prime mover collided with the cattle, this causing it and the trailers to overturn.
By Further and Better Particulars of Defence, the defendant said that he owned nine head of cattle as at 11 November 1999, and that none of them were involved in the collision. He said also that the area where he understood the collision to have occurred was about four kilometres from the property where his cattle were run.
The claim was pleaded in public nuisance and in negligence. Reliance was also placed on what was called “the doctrine of res ipsa loquitur.” By his defence the defendant did not admit that the cattle constituted a nuisance, denied negligence, and, in substance, denied the applicability of res ipsa loquitur.
At trial, a number of the issues joined on the pleadings became irrelevant. Nothing was said about nuisance. The plaintiff did not seek to rely upon res ipsa loquitur. The defendant admitted ownership and occupation of land not far from the Hume Freeway.
Non-Controversial Evidence
A number of aspects of the evidence can be shortly summarised. Thus:
·The accident occurred at about 10 o’clock on the evening of Thursday 11 November 1999. The plaintiff’s vehicle was making a Sydney to Melbourne run. The Hume Freeway in the vicinity of the collision, which was about half a kilometre west of the Greta Road overpass, consisted of two west-bound lanes, a wide median strip and two east-bound lanes. Not far east of the point of collision the Freeway, for vehicles travelling west, made a left-hand bend. At the time of the collision the weather was fine and clear. There was no artificial light – other than for the lights of vehicles. It was, in the general area of the accident, very dark.
·The plaintiff’s vehicle having rounded the left-hand bend, Mr Monahan observed a vehicle travelling in the same direction, and about 500 metres ahead, swerve to its right, then stop on the median strip with its brake lights flicking on and off. He slowed his vehicle a little and continued on, then saw cattle standing in the left-hand lane – the lane in which his vehicle was travelling. They were 100-200 metres away. He braked and swerved right, struck the cattle, his vehicle kept veering right and rolled onto its off-side.
·The cattle had been seen a little earlier by Mr Darren Farrell, who had been driving west along the Freeway. It was he who had swerved his vehicle to the right, stopped it on the median strip, and operated the brake-lights repetitively as a warning.
·The position of the cattle immediately after the accident was as depicted by Senior Constable Reygers, the attending police officer.[1] One beast was on the Freeway surface, generally south of the overturned vehicle. The other beast was on the median strip and to the east of the vehicle. The probable relationship between the vehicle and the second beast is depicted in the top photograph of exhibit “D”.
[1]See ex E.
·Senior Constable Reygers’ report was silent about the presence of brands or identifying ear tags on the cattle. He said that he would certainly have looked for brands or ear tags because it was evident that the cattle had a role in causing the accident. Had he made relevant observations, he would have noted them on his report.
·On 12 November 1999, Senior Constable Reygers revisited the area. He made an inspection of fence lines abutting the Freeway for about half a kilometre in both directions from the place of collision. Whilst not an expert, the fences seemed to him to be in a good state of repair, and as if they would retain cattle.
·Other evidence showed that new fences were erected along the boundaries of the Freeway when it was constructed. The fences consisted of wooden and steel posts, two barb and six plain wires. Such evidence confirmed, I consider, the reliability of the impression which the policeman gained from his inspection of the fences.
·Greta Road runs approximately north/south. As I said a little earlier, it crosses the Freeway by way of an overpass.
·To the south of the overpass, as at November 1999, facing onto the Greta Road, were properties owned by the defendant and occupied by the Orr family. The Orr property was to the west of the Greta Road, the defendant’s property, comprising some 47 acres, to the east.
·The south boundary of the defendant’s property abutted Nankervis Lane, which ran east/west and formed a T intersection with the Greta Road on its eastern side. To the south of that road, also fronting the Greta Road, was a property owned by Mr Mario Russo.
·The southern boundary of the Orr property abutted Pane’s Lane, which ran east/west and formed a T intersection with the Greta Road. Pane’s Lane, it will be understood, intersected with the Greta Road from the west. It ran towards, but did not travel as far as, the Freeway, which at that point ran more in a north and south direction.
·At the end of Pane’s Lane was a property owned by Mr David Patterson. It extended as far west as the Freeway. What I have called the Orr property, which fronted the Greta Road, was in fact leased by the Orrs from Mr Patterson.
·To the south of Pane’s Lane was a property owned and occupied by the Pane family.
·The fence of the Pane property abutting the Greta Road was well constructed and maintained as at November 1999. The same can be said of the fence of the Orr property which abutted the Greta Road; likewise, on the uncontradicted evidence of Mr Russo, the fences of his property both abutting the Greta Road and the unmade road.
·The uncontradicted evidence, which I accept, was that no beast belonging to the Orr family went missing on 11 November 1999. Neither any beast belonging to the Russo family or Mr Patterson.
·The distance from the southern boundary of the defendant’s property to the onramp of the Freeway for a vehicle whose driver intended to travel west was 400 metres. It follows that the place of the accident was about 1 kilometre from the furthest point south of the defendant’s property. The defendant’s professed belief – see his further and better particulars of defence - that the accident scene was about four kilometres from his property - was a gross over-estimate.
·Just after 8 am on the morning of 11 November 1999, a beast was reported straying on the Greta Road. The contract ranger who attended did not locate such a beast.
·Ownership of that straying beast was not established by the ranger, for the obvious reason that he did not locate it.
·At 7.45 am on Saturday 13 November 1999 Mrs Gwenda Pane called the ranger. She reported that three beasts had been locked in Pane’s Lane. By way of explanation, it appears that the lane could be closed off so that stock could eat out surplus feed, this reducing the fire hazard.
·According to Mrs Pane, whom I consider gave cogent evidence, the cattle in question had been locked up in Pane’s Lane for some time before the call was made to the ranger. Neighbours, but not the defendant, had been asked if the cattle belonged to them. The ranger was contacted only after the neighbours did not claim the cattle. According to Mrs Pane, those cattle were locked up for -
“at least two days, two-three days. Three days more than two, I would say.”[2]
[2]T. 146.
She had made the call to the ranger after, she thought, the cattle had been locked up for two days.
·Mr Pane gave evidence, which I also consider was credible, along the lines of the evidence given by his wife. He said that –
“the animals were there at least three to four days before [the defendant] came around and collected them.”
On Mr Pane’s account, the defendant came around one or two days after the matter was reported to the ranger.
·Each of Mr and Mrs Pane described first seeing a single beast near the front gate to their home – which is 80 to 100 metres west of the Greta Road – on the morning of a particular day. Mr Pane said that this was at about 7 am. They then drove the beast down the lane so that they could secure it behind the gates. Sometime later that day they realised that there were another two beasts down the laneway. It is not altogether clear from their evidence whether, when those beasts were first seen, they were already behind the closed gates; or were on the Greta Road side of the gates such that it was necessary to open the gates, drive the beasts through and then re-close the gates.
·The cattle, as I have said, were claimed by the defendant. There was dispute in the evidence as to their breed, sex and age. I will deal with that dispute a little later in these Reasons.
·During 1999, save for the reports made on 11 and 13 November, no reports were made of stock straying in the vicinity of the defendant’s farm. Apart from the properties already identified in the Greta Road, in November 1999 there were grazing properties at all points of the compass taking the intersection of the Freeway and the Greta Road as the centre.
·In the general area there were both farms of reasonable size and smaller hobby farms. There were properties whose owners lived away. In some instances, at least on the Greta Road north of the Freeway, the fences of small properties were in a poor state of repair.
·Trees and tree limbs do fall over fences. Particularly that is so if there are windstorms. A fallen tree or limb can enable the escape of stock. A fallen tree or limb which compromises a fence requires priority action by a contract fencer or the affected farmer. No evidence was given, I must add, of any windstorms in the general area in the period leading up to 11 November 1999.
Descriptions of the Cattle Killed on the Freeway
There were issues at trial as to the breed, age and sex of the two cattle. Those issues arose out of the defendant’s evidence that the only cattle on his property as at 11 November 1999 were nine Friesian-cross steers, bucket reared, about 10 months of age. That evidence was challenged. But if it was accepted it would obviously be pertinent to establish the breed, age and sex of the cattle which were involved in the accident. At least one, and probably both of those cattle are, as I said earlier, depicted in exhibit “D”. They were differently described in the oral evidence of a number of witnesses.
Mr Monahan described them as “dark coloured” and Mr Farrell as “black and white”. The former only saw them for a moment, and that was before the collision. The latter saw them before and after the collision. The first observation must have been brief, and his evidence made it clear that at the time of the latter observation he had other more pressing concerns. He described the cattle as Friesians only because, it seems, he associated black and white cattle with the Friesian breed from childhood experience.
I should next refer to the evidence of Mr Stone, a director of the company which provided ranger services to the City of Wangaratta on a contract basis as at November 1999. He accepted that he could be described as an experienced stockman. Looking at exhibit “D”, he said that the beast shown in the top photograph looked like a Hereford. It was “a bit hard to tell” what beast was depicted in the bottom photograph. It “could be” a dairy cow.[3] He would not think that it was a Friesian. He thought that the beast in the top photograph could be a cow or heifer. He could say nothing about the sex of the other beast.
[3]T 57.
Doctor Jamie McNeill, a veterinary surgeon experienced in cattle work, also looked at the photographs forming exhibit “D”. In his opinion the top photograph definitely showed a beef animal. It was a heifer, with little udder development, a Hereford or Hereford/Friesian-cross. He could say nothing as to the sex of the beast in the lower photograph, which might have been – depending upon the colour of the darker markings – a Friesian or some other dairy breed. He probably accepted also that the two animals could have been beef bred – perhaps Beef Shorthorn/Hereford-crosses, or other beef bred crosses. He described the beasts as being young, probably two to three years of age.[4]
[4]T 109-110.
The defendant was shown the photographs in exhibit “D” – first by Mr Doolan, the investigator; and then at trial. The first occasion was in mid-2001 – that is, before the writ was filed. According to the defendant’s evidence, the photographs showed “young, vealer-type cattle”. He thought that they would be under 12 months of age. The top photograph appeared to depict a “dark red sort of beast”; and the lower photograph “a cross-breed type roan”.[5] In cross-examination he agreed that he knew, from seeing the photographs, that at least one of the animals killed on the Freeway was a heifer.[6]
[5]T 161.
[6]T 173.
Descriptions of the Cattle which were Locked in Pane’s Lane
Mr Ralph described the cattle which he saw in the laneway as “3 black vealers”.[7] He said also that they were vealers, “off their mothers… which are small, small animals, medium size”.[8] He first saw them when he went down the lane to check the fences of the property which was leased by his family, having heard about the accident on the morning following its occurrence. I add that it was his tentative belief that the defendant attended to inspect the cattle, and that they were removed, on 12 November. But I am sure that this chronology was wrong. Certainly they were not removed until 13 November, and most probably not until 14 November.
[7]T 36.
[8]T 41.
Mr David Patterson saw the cattle, he said, two days after the accident. Mr Pane waved him down and told him about stock in the lane. He inspected the cattle from his car. Acknowledging the elapse of time, he said that:
“By my knowledge, I think that they were about two year old heifers.”[9]
He could not recall their colour. Cross-examined, he continued to assert the age and sex of the cattle of which he had earlier given evidence.[10]
[9]T 128.
[10]T 131.
Neither Mr Pane nor Mrs Pane identified the three cattle by sex, size/age or colour.
The defendant, who claimed the cattle, said that they were three of nine cattle that he was then running on his property. Those cattle were 10 month old Friesian cross-steers, bucket-fed as young calves.[11] They had been bought when very young, direct from dairy farmers, for cash. Eventually, some of them were killed for family provisions, whilst others went through an abattoir in Benalla that he was then managing. Some of his cattle were black and white, some straight black. The cattle in the laneway were blacks.
[11]T 158.
What cattle were being run by the defendant on 11 November 1999?
If the defendant’s evidence was accepted, then the cattle which strayed onto the Freeway did not belong to him. That is because –
·One at least was a heifer; and he was only running steers.
·One at least had Hereford markings; and he was only running Friesian-cross cattle, which were black and white or straight blacks.
·His cattle were only 10 months of age; and the cattle which died on the Freeway were older than that.
The defendant’s evidence that he was only running Friesian-cross steers at the time, and that they were all accounted for when the three in Pane’s Lane were retrieved, was subject to attack on a number of fronts. Counsel for the plaintiff submitted that:
· The defendant had first asserted that such was the situation after he had seen the photographs which became exhibit “D”.
· The defendant’s evidence, the import of which was that only the nine steers were run on his property during 1999, was at least contrary to evidence which suggested that cattle belonging to a Mrs Brennan had been agisted on the property in March and April that year.
· The defendant had failed without reasonable explanation to call his wife to corroborate his evidence as to what cattle were on his property at the relevant time – an issue which he must have known was central to the fate of the proceeding.
· The defendant had failed, without reasonable explanation, to call the two persons from whom he said he had purchased the calves in January 1999.
· The defendant had failed to produce any records pertaining to the purchase of milk replacer or pellets which he said was fed to the calves.
· The defendant had failed to produce any kill records from the abattoir through which a number of the cattle were allegedly processed.
· The defendant had produced no documentary evidence at all to support his oral evidence that in November 1999 he had but nine steer calves on the property.
· The defendant’s description of the cattle retrieved from Pane’s Lane did not match the description given by Mr Patterson. The latter’s description should be considered reliable.
· The age of the cattle which were held in Pane’s Lane and those which were killed on the Freeway was probably similar.
· The defendant had given inconsistent accounts as to what cattle, if any, had strayed from his property; and when any cattle had done so.
In my opinion there was greater or lesser force to each of those submissions.
The defendant certainly knew, before the writ was issued, that at least one of the cattle involved in the accident was a heifer. He knew also that some of his cattle had strayed at a time proximate to the accident. His property was no further than a kilometre from the accident scene. Evidence that his cattle could not have been the cattle involved in the accident was inevitably going to become an issue, yet he called no evidence at all as could corroborate his account of the type and number of cattle which he was running at the time. Even if, as he said, he ran the cattle as a hobby, and dealt in cash, nothing should have prevented him calling the vendors of the calves, or producing abattoir kill records.
Neither did the defendant provide any reasonable explanation for not calling his wife – a person who, given that there is no property in a witness, he would be expected to have called. On his account, she was living on the property at the time, and had some involvement with the stock. It could be expected that she could have given evidence of what type and numbers of stock were on the property in November 1999, and whether they were all accounted for after the three beasts were retrieved from Pane’s Lane. It is not as if, on the defendant’s account, the number of stock on the property was large.
The defendant’s explanation for not calling his wife was that they were now separated. He did not give evidence that he did not know her whereabouts. He agreed that she had not been subpoenaed to attend.
It is next the case that the defendant did give inconsistent accounts as to whether and when cattle had strayed from his property. In mid-2001, before the writ was filed, he told the investigator, in substance, that he had never had an instance of stock straying. His explanation for saying such a thing was that he was alcohol-affected at the time. Then, in answers to interrogatories, he swore that the three cattle had strayed on 13 November and had been retrieved on 14 November. In oral evidence, however, he really accepted the evidence given by Mr and Mrs Pane, the import of which was that the cattle had strayed on (or just possibly before) 11 November. He said also that he retrieved them on 13 November – that is, the day on which he was notified of their presence in Pane’s Lane. His explanation for having earlier sworn that they had escaped on 13 November was that he had only become aware that they had strayed on that day.
Whilst in other respects the defendant’s evidence seemed to be frank, his statements – sworn and unsworn – about straying stock generally do not engender much confidence in the likely reliability of his key evidence describing the cattle that he was running on his property on 11 November 1999 – which is not to say that the two aspects of the evidence were dependent one on the other. In so concluding I have not ignored the possibility that the defendant, when speaking about straying cattle generally, may simply have been reluctant to disclose matters which he might have perceived would implicate his stock in the accident.
The defendant, then, gave inconsistent accounts in respect of an issue collateral, but related to, the question what stock he was running on his property on 11 November 1999. That tells against his credibility. This is to be seen in the context that he failed to call, without reasonable explanation, at the least one witness who could have been expected to give pertinent evidence on his behalf if that witness’s evidence had been favourable to him.
If I accepted Mr Patterson’s evidence as to the sex and age of the cattle which he saw in Pane’s Lane then the defendant’s evidence must have been wrong at least to this extent: that regardless whether he was running nine Friesian-cross steers on his property on 11 November 1999, it must have been the case that he was running other cattle also. But if I was to accept the defendant’s evidence about the Pane’s Lane cattle, it would not follow that I must accept his evidence that he was only running nine Friesian-cross steers on his property at the critical time. It would be unnecessary to conclude that he was then agisting cattle, as he sometimes did. It might readily be concluded that, as a former retail butcher, a former abattoir owner, and currently the manager of an abattoir, he was not unskilled in buying and selling stock. Indeed, his evidence of how it was that he allegedly acquired the Friesian-cross calves emphasises the point. Note also his evidence that the property, which he had owned for many years, had been used for various purposes, including use as a “stock depot”.[12] The defendant gave no evidence, I add, as would provide a reason why he should not have run a few beef-bred heifers on his property in addition to 9 bucket-reared steers. Such a prospect is not excluded by the circumstance that, if he bought bobby-calves direct from a dairy farmer, he was likely to buy bull calves.
[12]T 156.
I consider that Mr Patterson was an impressive witness. He was not shown to have any axe to grind. Even so, I am reluctant to accept his recollection that the cattle were heifers. There was, as he acknowledged, a time factor operating upon his recollection.
On the other hand, the gist of the evidence of both Messrs Ralph and Patterson was that the cattle which they saw in Pane’s Lane were of greater scale and better condition than would be expected of 10 month old Friesian-cross steers. “Vealers”, post-weaning, for a person experienced in stock work connoted a significantly different type of animal; likewise, putting sex aside, a description of cattle as “about two year old heifers”.
In my opinion the evidence of Messrs Ralph and Patterson requires a conclusion, as a matter of probability, that the defendant, as at November 1999 was at least running some cattle on his property which were older and better-conditioned than the steers which he described. I say “at least” because it would be open to conclude, although it is unnecessary to do so, that the cattle which he was running on his property at the time did not include Friesian-cross steers at all.
This should be added: there is no reason to conclude that, in early summer, the defendant would have been restricted to running nine head of cattle on his land. Even if he was running the nine steers of which he gave evidence, the prospect of his running a few more cattle is not excluded. That is so even if, as he said, hay was cut in one paddock in 1999. It may be noted that the defendant agisted 20 head of cattle in the period October 1997-January 1998, and between March 2001 and October 2001.[13]
[13]See exhibit J.
Were the Defendant’s Cattle involved in the Accident on 11 November 1999?
It follows from what I have so far said that in my opinion the prospect that the defendant’s cattle were involved in the accident on 11 November 1999 is not excluded. But has the plaintiff established such involvement on the balance of probabilities?
In my opinion the answer to the question just posed is “yes”.
First, the evidence of Mr and Mrs Pane makes it very likely that stock had strayed from the defendant’s property by the morning of 11 November 1999. That this was so is underlined by the report made to the ranger of a beast straying on the Greta Road that morning. It is probable, I think, that the beast the subject of the report was one of the beasts which Mr Pane put behind the gates in Pane’s Lane that day. That is the likely explanation why the ranger, Mr Northey, did not locate it wandering. The defendant gave evidence that the distance from Wangaratta at which the beast was reportedly seen gave the lie to any such explanation. But I do not accept that such is the case.
Second, the stock which strayed into Pane’s lane were not Friesian-cross steers. If there were such steers on the defendant’s property at the time, and if, being bucket-reared, such cattle were less prone to stray and more likely to keep together, it says nothing about any cattle which did stray – in particular their likely behaviour.
Third, according to the defendant’s evidence, the cattle which he retrieved from Pane’s Lane strayed from his property through a gate at the south/east corner of his property which he found open on 13 November 1999. He denied that the gate was kept locked, contrary to the import of evidence given by Mr Russo. Let the defendant’s evidence be accepted – the only alternative, really, being that the cattle strayed by walking through or over a fence fronting the Greta Road. On that footing, it is probable that the gate was open at latest from very early on the morning of 11 November until the defendant closed it on 13 November. For that long period there was nothing to prevent stock straying if they were so inclined.
Fourth, it does not follow, because no stock were reported straying on the Greta Road on 11 November other than the beast the presence of which was reported to the ranger that morning, that no stock other than the three cattle restrained by Mr and Mrs Pane strayed from the defendant’s property that day. On the defendant’s account they had the opportunity to do so. The distance from Nankervis Lane to the point of the accident was less than a kilometre. The evidence showed that cattle can travel many kilometres in a day. The prospect that cattle escaped from the defendant’s property in sufficient time to graze the roadside verge and by doing so arrive at the area where the accident occurred by 10 pm on 11 November is in my view certainly not excluded.
Fifth, it is likely that the cattle involved in the accident were similar, in age at least, to the cattle which were locked up in Pane’s Lane.
Sixth, other landowners to the south of the Freeway and in the Greta Road area reported no loss of stock. Moreover, the evidence suggested that the fences abutting the Freeway to the south (and north) were new and strong. The situation to the south of the Freeway was, I consider, particularly pertinent. It is conceivable that cattle could have strayed from a property north of the Freeway and got into the position where they were seen by Messrs Monahan and Farrell. But to do so, such cattle must have successfully traversed almost the entire width of the Freeway, a road carrying substantial traffic with a speed limit of 110 kilometres an hour. The prospect of cattle doing that without earlier incident would, I think, be slight.
Seventh, whilst there was evidence of the presence of hobby farmers in the district, and of some poor fences, it is mere speculation that any hobby farm was the source of the strays. There was a dearth of evidence that cattle were run on any such properties. Further again, the evidence suggests that hobby farms with poor fencing – at least in a number of instances – were located north of the Freeway.
Eighth, no doubt trees or the limbs of trees can fall on fences and facilitate cattle straying. But there was nothing to suggest that any such incident explained the presence of cattle on the Freeway on the night of 11 November 1999. Moreover, no evidence suggests that there had been weather conditions conducive to the falling of trees or limbs in the period preceding the accident.
Ninth, it was faintly suggested that the cattle may have strayed from a property some kilometres south of the defendant’s property on the Greta Road. That was speculation. Moreover, if the defendant had any point that failure to report strays meant that the Freeway strays had not originated from the Greta Road, it was a point operating the more strongly in the case of cattle which must have travelled a much greater distance between point of origin and point of accident.
Tenth, it would be a very great coincidence if the Freeway cattle had not strayed from the defendant’s property. Cattle did stray from his property that day. They were cattle of a description, as to size, compatible with the Freeway cattle. Like the Freeway cattle they were neither branded nor ear-tagged. On the defendant’s evidence other cattle could have strayed from his property – because, inferentially, the gate remained open. The defendant’s property was on the “right” side of the Freeway. It was not far from the defendant’s property to the point of the accident. If the Freeway cattle belonged to someone other than the defendant it is necessary to postulate the coincidence of cattle of the same age, neither branded nor ear-tagged, straying in the same general area on the same day from an unidentified property.
My conclusion that the Freeway cattle were owned by the defendant compels me to reject his evidence that his numbers were complete when the three cattle were retrieved from Pane’s Lane. In that connection I mention again, though it is not decisive, the defendant’s failure to call evidence from his wife.
How did the Cattle Escape? Negligence?
As I said earlier, there were only two possible means by which the defendant’s cattle were enabled to stray: an open gate, or (as counsel for the plaintiff alternatively contended) a fence abutting the Greta Road which was inadequate to contain stock.
I have no doubt that the fence abutting the Greta Road, particularly south of the defendant’s then home, was inadequate to contain any cattle that might have been inclined to escape. That section of fence was old, in very poor repair, and not electrified. If cattle had not earlier escaped through that section of the fence, and if they did not do so thereafter - which the defendant and Mr John Marks, the latter of whom was a stock buyer and wholesaler who agisted cattle on the property in 2000 and 2001, said was the case – it was a miracle. The most persuasive evidence of the inadequacies of the fence was given by Mr Neville Lindsay, a long-time fencing contractor. Other evidence to similar effect was given without objection by Dr McNeill, the veterinary surgeon, whilst photographs[14] and two video tapes,[15] depicting the fence as it was at the pertinent time – although later recorded – clearly demonstrated the deficiencies of the structure.
[14]Exhibit G.
[15]Exhibit H and I.
I need not consider, however, whether the defendant failed to take reasonable care to maintain the fence, or whether he should reasonably have replaced it; for I see no reason to reject the defendant’s explanation – against interest – how it was that cattle came to stray from his property. I say “against interest” because the defendant’s counsel in substance conceded, and rightly so in my opinion, that if his client’s cattle had strayed onto the Freeway, having left the property through the open gate, his client had breached a duty of care which he owed the plaintiff. The duty arose because the presence of straying animals on the Freeway was such as was likely to create a significant risk to life, limb or the property of Freeway users. The breach consisted of matters such as the defendant’s failure to establish that some and how many of his cattle had escaped on the morning of 11 November 1999, his failure to ascertain that the gate was open and to close it before any more cattle escaped, his failure to ascertain the whereabouts of all escaped cattle that day, his failure to have any system for ensuring that stock, gates and fences were regularly checked, and for locating escaped stock. The defendant, it seems, worked long hours at the abattoir. In that event, he had to do something to ensure that checks were made of cattle numbers, and that remedial steps were taken if cattle had escaped; for the Greta Road, on the evidence, carried a deal of traffic, and the Freeway was nearby. The defendant could not be held at fault because, let it be supposed, the gate was opened and some cattle escaped during the night or early morning of 11 November. But he ought be held at fault because the problems, which included the risk that more cattle would escape from the property, were not identified and remedied before 10 pm that day.
Conclusion
There must be judgment for the plaintiff for the agreed amount of damages.
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