Ling v McDonald
[1988] TASSC 95
•6 September 1988
Serial No B27/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Ling v McDonald [1988] TASSC 95; B27/1988
PARTIES: LING
v
McDONALD
FILE NO/S: BDR LCA 5/1988
DELIVERED ON: 6 September 1988
JUDGMENT OF: Cox J
Judgment Number: B27/1988
Number of paragraphs: 20
Serial No B27/1988
List "B"
File No BDR LCA 5/1988
LING v McDONALD
REASONS FOR JUDGMENT COX J
6 September 1988
This is an appeal from the Court of Requests, Burnie, against a finding of contributory negligence on the part of the appellant/plaintiff and an apportionment of her degree of fault at 60% compared with 40% against the respondent/defendant. There is also an appeal against the assessment of the damages of the respondent in the sum of $3,000. The consequence of the learned Commissioner's findings was that he awarded the appellant only $920 in respect of her claim for agreed damages of $2,300 and awarded the respondent $1,800 on his counterclaim for damages assessed at $3,000.
The facts found by the learned Commissioner were that the appellant at about 9.30 p.m. on the 15 May 1987 was driving her motor car along the Flowerdale Road, Flowerdale, and came into collision with a foal which was running along the darkened road, slightly separated from some other horses, which having escaped from the respondent's nearby paddock were being returned thereto by him.
The respondent who lived close to the road where the collision occurred had learnt of the escape of the horses about 15 minutes earlier. His wife took up a position near the paddock from which the horses had escaped and attempted to warn approaching traffic by waving her arms. Two neighbours stood close to her, one of them holding a torch which she shone at approaching traffic. It seems that part of the trio's purpose was to shepherd the horses back into the paddock when retrieved by the respondent.
He located the horses some 500 metres beyond the general area of the later collision and contained them in a triangular paddock bounded on one side by a fence, on another by a river and on the third by the road, while another man Mr Atkinson made a car journey of about ten minutes duration to drop off a friend and returned to assist the respondent. On his return Mr Atkinson had passed the respondent's wife and the two neighbours. He had seen the torch, had spoken to the respondent's wife and then continued on to assist the respondent. Upon Mr Atkinson's return the respondent had driven the horses out onto the Flowerdale Road back towards the first paddock and he followed them on foot up the road while Mr Atkinson brought up the rear in his car activating its hazard lights.
The respondent was aware of the presence of the filly and was further aware that it was separated from its mare which he could hear bellowing for the filly from the first paddock. He conceded that the filly could hear its mare as it was bellowing back, and that when a foal of the age of the one in question is separated from its mare it gets very upset and can panic.
The horses ran along the road towards the first paddock as the appellant's car approached. She saw the trio with the torch, but thought they were looking for something on the ground. They were standing close to a distinct left hand bend or corner which the appellant lowered her speed to negotiate and shortly after passing them and rounding the corner the appellant saw and passed several horses on the other side of the road, but the foal ran directly into her car and was killed. The evidence indicates that the accident occurred within a distance of no more than 50 metres from the corner, but the learned Commissioner made no specific finding as to the point of collision or the speed of the appellant's vehicle at the time. His Honour made the following findings as to negligence:–
"I believe that both the defendant and the plaintiff were negligent to a degree in causing this accident.
I do not believe that the plaintiff was keeping a proper lookout as she was driving along the Flowerdale Road at the time. I believe that if she had been she would have realized what Mrs Lawrence was doing with the torch and what Mrs McDonald was doing with her arms. That is attempting to give some warning. I am satisfied that her position of the three is incorrect. The three were on the side of the road and perhaps because of her inexperience or just a lack of real attention she failed to appreciate what they were doing. I accept that other cars had been warned and had slowed down. On her own evidence she did not slow down appreciably. It follows therefore, I believe that she was travelling at too fast a speed in the circumstances. I also believe that it is not placing too great a burden on a driver at night time in a country area, if a driver sees persons with a torch on the side of the road, to perceive that there may be something amiss in the vicinity and take particular care. Perhaps again, her inexperience did not assist in that regard.
However, I believe that the defendant was also negligent. He, I believe, was negligent first in leaving the horses in a paddock which he ought to have known was not always secure. It being a close major road. I believe that he was also negligent in allowing the horse, particularly the foal, to run along the road without proper supervision. I believe that in hindsight – as many observations of negligence are – he should have kept the horses in the second paddock and then led the horses back to the first paddock individually or in some way ensured that one or more of the horses didn't bolt as they were being taken back to the paddock. It appeared that once the horses were on the road the foal did bolt and was unable to be controlled and ran into the path of the plaintiff's vehicle. My concern is that it may well have collided with the plaintiff's vehicle even if she had not been travelling at a great speed. However, I believe that if the vehicle was stopped or only travelling very slowly that the foal may well have avoided the passage of the car.
It is therefore a question of apportionment of liability. I believe that there was greater responsibility on the part of the plaintiff. She ought to have realized what the Lawrences and Mrs McDonald were doing on the side of the road. I therefore will order that liability be apportioned in the percentage of 6040 as against the plaintiff."
The appellant's counsel made little attempt to upset a finding of some negligence against his client, but argued strongly that the apportionment was erroneous and that a far greater level of blame had been established against the respondent than the learned Commissioner had found. I think the learned Commissioner was entitled to find negligence against the appellant. It was implicit in his finding that had she kept a better lookout she would have seen one woman shining a torch at her and another waving her arms up and down as described by those witnesses and that a road user using ordinary care and skill would have taken this as an indication that something was amiss and would have slowed appreciably if not stopped. That she failed to keep such a lookout was a departure from the standard of care reasonably to be expected of her in the circumstances and his Honour's finding of negligence should not be disturbed.
However, in comparison to her level of negligence that demonstrated by the respondent was to my mind very considerably higher and with great respect I consider the learned Commissioner's apportionment was defective. The Tortfeasors and Contributory Negligence Act 1954, s4., requires the court to reduce the appellant's claim "to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage".
The dangerous situation had been quite deliberately created by the respondent. He chose to move the horses from the safety of the second paddock onto the road and to permit them to run out of control over a distance of 500 metres towards the first paddock a short distance past a corner which would conceal from any oncoming motorist their presence on the road. He appreciated, or should have appreciated, that the foal separated from its mare might not even remain with the group of other strayed horses which were out of his control and that it might thereby extend the parameters of the hazardous situation he was creating. The evidence shows that two other vehicles equipped with warning lights were readily available to him and could have been deployed to give better warning to other road users. This was not the first time horses had escaped from the paddock, yet all that was assembled to give warning to the traffic coming from the area to which the horses were to be returned was a group of three pedestrians, one of whom was equipped with a torch. The respondent could have (this is implicit in the finding of the learned Commissioner that he "should have") kept the horses in the second paddock until a means was found of either leading them back individually or taking them back collectively under restraint. At the least, if collective movement of the horses along the road without their being tethered or otherwise restrained proved impracticable (and there were at least five adults present and the means of reasonably swift communication between them in the form of Mr Atkinson's car), it behoved the respondent to give adequate warning to other road users of the nature of the hazard he was intending to create. In the circumstances the placing of the trio with the torch at one end of the road and a vehicle with warning lights at the other while a group of horses and a panicking foal made their own way in the dark along it independently of him and of each other was far from being adequate in my opinion.
The apportioning of responsibility between the parties, both of whom are found to be negligent, is of course a matter of very wide discretion for the judge or jury making the apportionment. It is now trite law that much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable and that it is to be expected that cases will be rare in which the apportionment made can be successfully challenged (Pennington v. Norris (1956) 96 CLR 10 at p15). Nevertheless, a comparison of the degree of departure of each party to this litigation from the standard of care of the reasonable man in the circumstances facing each leaves me in no doubt that the respondent's departure from that standard far exceeded that of the appellant and that an apportionment attaching 60% of the responsibility for the latter was a plainly unreasonable and unjust division of responsibility. I would reduce the appellant's damages by 15% and those of the respondent by 85%.
I come now to the assessment of the respondent's damages in the sum of $3,000.
The respondent, a horse breeder of 12 years' standing, gave evidence that the foal was approximately eight months' old and that its mare was Katarnian which he had exported to Victoria to be served by a stallion, Nicki Lou. There was ample evidence of the birth of the foal to Katarnian. There was also evidence tendered by consent in the form of a statutory declaration from a stud master to the following effect:–
1he covered the service of Katarnian by the stallion Nicki Lou on his property at Donnybrook in Victoria and was present when copulation occurred. Insemination was by natural means;
2at the time of copulation he had them isolated in the paddock and there were no other horses in that paddock;
3he ascertained that the mare was Katarnian because he viewed her registration papers which contained a detailed description of the horse, including distinctive markings and freeze branding and he made a physical comparison with the mare and found it to correspond with the description and freeze branding in the papers;
4 he likewise established the identity of the stallion; and
5the horses were also examined by officers from the Harness Racing Board of Tasmania prior to the mare being served by the stallion.
In addition a "sire summary sheet" filled in by the stud master and certified as a correct copy by the Registrar of the Harness Racing Board in Melbourne recorded that Katarnian had been served by Nicki Lou on the dates mentioned in his declaration and that a pregnancy test had proved positive. This document was also tendered by consent. Despite the submissions of counsel for the appellant to the contrary, there was in my view ample evidence which established the parentage of the foal as Katarnian and Nicki Lou. There was also evidence that the service fee paid to the stallion's owner was $1,000, a figure at the time in the top 20 standard bred sires' fees in Australia.
The respondent called evidence from a Mr Barker who was an owner and breeder of horses and had been involved in that industry for nearly 60 years and had been Chairman of the Harness Racing Controlling Body in Tasmania for 11 years. He had experience in valuing horses and was called to express an opinion as to the value of the foal. He claims Katarnian was a very well bred horse, being by Batchelor Hanover who was he said the leading sire of New Zealand at the time and that she had thrown three winners. He had bought her from the Neptune Stud and sold her to the respondent after about three years. While in Mr Barker's possession Katarnian had two foals, one a filly which won two races and which he still had and a colt which had died. Mr Barker said that Nicki Lou was in turn sired by Most Happy Fella whom he described as the best sire of any breed of horse. Although he had not inspected the filly killed in the accident, either before or after that event, he expressed the opinion that given that she was by Nicki Lou out of Katarnian she would at auction have fetched $5,000. He laid considerable emphasis on the blood lines of the filly, saying she had value as a potential winner and as a potential breeder, whether or not she raced successfully. He conceded that she might not have been a successful racer and might have been barren, that there were many imponderables in fact, but said that having given a lot of thought to his valuation and having regard to the stud fees, agistment and other outlays in getting the mare in foal the owner could still expect up to $5,000 at auction.
A printed book entitled "Stud Book Supplement 1985", prefaced by a commendation from the Chief Executive of the Australian Harness Racing Council and purporting to be a stallion directory, contained significant details of the pedigree, best time and stud fees of Nicki Lou. His stakes were recorded as $690,007. The document also recorded that he was sired by Most Happy Fella and the successes of that horse and its extensive progeny were tabulated. Objection was taken to the admission of this document into evidence, but it was sought by the respondent to justify its admission on the basis of s67 of the Evidence Act 1910. That section reads:–
"All courts and persons acting judicially may, in matters of public history, literature, science, or art, refer, for the purposes of evidence, to such published books, maps, or charts as such courts or persons consider to be of authority on the subjects to which they respectively relate."
Although the learned Commissioner did not expressly rely on it, to some extent it did underpin the factual basis for Mr Barker's opinion which largely relied on the premise that the foal's sire had come from excellent stock and had raced successfully. If the book was admissible in evidence it would provide evidence of Nicki Lou's racing performances and parentage and provide similar information about his own sire Most Happy Fella.
In my view the book was admissible pursuant to s67 of the Evidence Act 1910. The respondent gave evidence that he was himself a stud master and a member of the Harness Racing Board of Tasmania. He said the book was compiled by the Harness Racing Council which is the controlling body of pacing in Australia. The book purports to contain information of a factual and uncontroversial nature which would be highly relevant to the quality of blood lines. It can in my view fairly be described as a book which is concerned with a matter of public history and on the evidence there was no reason not to regard it as being of authority on the subject to which it relates.
In my opinion there was ample evidence that the factual basis upon which Mr Barker expressed his opinion of the value of the foal was correct. It was submitted that there was no evidence as to the physical condition of the foal and that it was simply assumed to be healthy and free of defects. There was no suggestion in cross–examination that it was unhealthy or defective in any way and, in my view, the learned Commissioner was entitled to infer from the nature of the respondent's occupation and his evidence that he intended to try the foal in due course as a race horse and, depending upon her performance, continue to race her or put her to stud, that it was free of such defects and in normal health.
The learned Commissioner discounted the value placed upon the foal by Mr Barker, taking into account the various contingencies canvassed in the course of his evidence, and assessed her value at $3,000. In my opinion there was nothing in his approach to that assessment which has been shown to be erroneous and it should stand.
The appeal will be allowed and judgment varied to the extent that the appellant will have judgment for $1,955 on her claim and the respondent will have judgment for $450 on his counterclaim.
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