Lubotzki v Symonds & Others No. DCCIV-97-416 Judgment No. D3612

[1997] SADC 3612

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Worthington

Hearing

20/05/97.

Catchwords

Motor vehicle - collision with steer owned by defendants (respondents) that escaped onto road - minor civil action by motorist dismissed - on application to review:no liability for escape of animal but respondents negligent in failing to adequately warn motorists of the presence of the animal at large - judgment for plaintiff (applicant)

Materials Considered

• Wyong Shire Council v Shirt (1979-1980) 146 CLR 40, applied.

Representation

Applicant HOLGER LUBOTZKI:
Counsel: Mr J. A. CARR - Solicitors: J.A. CARR &; CO

Respondent R.P. &; J.A. SYMONDS &; SONS (Reg):
Counsel: Mr D. G. RIGGALL - Solicitors: KNOX &; HARGRAVE

DCCIV-97-416

Judgment No. D3612

27 May 1997

On Appeal from MAGISTRATES COURT

(Civil)

LUBOTZKI v SYMONDS & OTHERS

Civil

Judge Worthington

This is an application to review the decision of a learned Special Magistrate in a minor civil action.

At about 1.00 pm on 13 May 1994, the applicant's car collided with a steer owned by the respondents on the Goolwa to Strathalbyn road.The steer had escaped from the respondents' farm.The applicant claims for damage to his Mini Cooper S, the quantum being agreed at $4,100.The learned Special Magistrate dismissed the applicant's claim and ordered that he pay witness fees of $120.He seeks review of that judgment.

The applicant's evidence can be summarised as follows.He was travelling generally north (i.e. towards Strathalbyn) and the accident happened about 12 km out of Goolwa.As relevant, the road is bitumen with a broken white line dividing the single lanes for traffic travelling north and south and has a gravel verge on each side.As he approached the area of the accident, the applicant was travelling at about 90 kph.He saw two parked motor vehicles with their hazard lights operating, off the road on the eastern (his right) side.He also saw smoke coming from a valley behind them and assumed that they belonged to peopleattending to a fire in the valley.As he came nearer tothese two vehicles,he began to decelerate and had reduced his speed to about 80 kph, when a Holstein steer emerged from thick scrub on the left hand side of the road and ran in front of his car.The applicant braked hard but could not avoid hitting the animal.The impact caused his car to veerto the right hand side where it came to rest off the road.Although his car sustained significant damage, the applicant was fortunate in that he sufferedonly a minor head wound.The steer eventually got back on its feet and it was put back over a fence on the property owned by the respondents on the eastern side of the road.His Honour accepted the applicants evidence and found accordingly.There is no challenge to that.

Three witnesses were called in defence:Mr Bronte Symonds, who is a dairy farmer, his wife, Mrs Samantha Symonds and his brother, Mr Mark Symonds, also a farmer.For all practical purposes, they are the respondents.For ease of reference, I shall use their first names.Some of their evidence was disputed but the uncontroversial evidence was that Bronte and Samantha received a phone call to saythere was an animal on the Goolwa to Strathalbyn road which, correctly as it turned out, was suspected to be theirs.Their property is on the eastern side of the road and driving generally south (towards Goolwa), they went to investigate.Bronte drove a Nissan utility and his wife, aFord Telstar.Bronteparked his utility off the road on the eastern side facing south with its hazard lights operating and Mrs Symonds shadowedhim in her car as he walked along the edge of the road looking for the animal.Eventually, she parked her car also on the eastern verge with its hazard lights flashing.

Markwas onhis way home for lunch and said in evidence thathe was told by his brother "that one of our steers could be on the road, so we then decided that we should get him on (sic) and warn the traffic".He followed in his car, a Nissan Bluebird, which he parked on the eastern verge with the hazard lights operating.He estimated that this was about 350 metres south of the other two vehicles and it appears likely that it was a short distance south of where the collision occurred.His Honour found that at all material times, all three vehicles were parked off the road on the eastern side, with their hazard lights flashing.There is no challenge to that finding.As relevant, it is a straight stretch of road.

The learned Special Magistrate found that at the time the accident happened, all three members of the Symonds family were on the eastern side of the road. His Honour noted that there were some inconsistencies in the defence evidence. He preferred Samantha's evidence which hefound was consistent with that of Markand rejected the evidence of Bronte Symonds wherever it was in conflict with those two witnesses.In particular, he rejected evidence fromBronte that as the applicant approached, he stood on the western side of the road waving his arms to attract the applicant's attention.

With respect, I cannot accept that his Honour's finding thatall three were on the eastern side of the road at the time of the accident, is supported by the weight of evidence.Both Markand Brontesaid that they were on the western side of the road when the accident happened.Markdescribed driving his car to the area, parking it with the hazard lights operating and then crossing to the other (western) side of the road to look for the animal in the scrub on that side.The evidence shows that the scrub on the western side is fairly constant in that locality and comes down to the edge of the gravel verge.The eastern side of the road was said to be relatively clear of scrub and Mark's evidencewas that as he drove towards the scene,he couldsee no sign of the animal on the eastern side,so he formed the opinionthat it was probably in the scrub on the western side.That was why he crossed to that side of the road as soon as he got out of his car.

Markbecame aware of the applicant's car approaching.He had not seen the animal by then, but he said in evidence that he stayed still so as not to frighten the steer.However,as the carpassed his position, he heard the sound of heavy braking followed by the impact.Brontesaid that he wason the western side when the accident occurred and that just before it happened, he waved his arms to attempt to slow the applicant's car.The applicant did not see him.

In answer to a question from his Honour, Samanthaagreed that as the car approached, all three of them were on the property(eastern) side of the road and the steer was on the opposite side.However,in describing what happened in evidence shortly before that, she said that she thought the steer was on the same side of the road as their property and that when it ran out, it came from the property side.Her evidence is confusing and inmy opinion, it cannot lead to a finding that all three were on the eastern side of the road at the time of the accident.Dependingon what onemakes of herevidence in conjunction with that of the other two,at the time of the accident she was either on the eastern side withthe other two on the western sideor, if she is correct in saying that all three were on the same side,they were all on the western side i.e. looking for the animal in the scrub on that side.Given that she recollects being near Bronte when he waved his arms, it is more probable that they were all on the western side.

His Honour held that there was no evidence to support a finding that the respondents were responsible for the escape of the animal - e.g. inadequate fencing and further, that there was no other negligence, in particular, failingto give adequate warning to road users of the presence of the animal at large.His Honour said that he could find no fault on their part for not putting one or more of the vehicles on the western side of the roadway and that to require that of them, would amount to a counsel of perfection.

Mr Carr, for the applicant, submitted that the learned Special Magistrate erred in two respects in holding that the applicant had failed to establish negligence,namely a failure to adequately fence and secondly, failure to warn.Mr Riggall, for the respondents, submitted that there was no evidence to support a finding of failure to properly fence and that it would be unreasonable to criticise the defendants, who had put their cars on the eastern side with flashing hazard lights, for not taking other steps to warn oncoming traffic of the potential danger.He submitted that in all the circumstances it was reasonable that they should be otherwise putting their combined efforts into locatingthe animal.

I agree with the learned Special Magistrate that there is no basis for an adverse finding against the respondents relating to the escape of the animal from their property. However, inmy opinionthe finding that the respondents were not otherwise negligent, should be reviewed.

It was reasonably foreseeable that this steer could run out onto the roadway and cause an accident.It was a large animal,two years old and standing about 5 ft at the shoulder.Clearly, such an animal has the potential to cause serious damage to any vehicle that collides with it and injury to its occupants.It is clear from the evidence of Markwhich I have quoted, that this risk was appreciated by the respondents and hence their decision to warn traffic as well as to secure the animal.The standard of care required by law is not an absolute one but that which may be expected of a reasonable person, namely what a reasonable person would do in response to the risk.The factors to be taken into account in that assessment are set out by Mason J. in Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 47:

"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. . . . . . . . .The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

The respondents lived in that area.This is a major road that carries fast traffic.While the respondents were present at the scene,at least two other vehiclespassed through before the applicant.As far as the respondents generallywere concerned, there was at least an equal chancethat the animal was on the western side of the road as the eastern side, and at least one of them,Mark, had formed the opinion that it was more likely the animal was on the western side.Given the terrain and scrub on that side, north bound traffic would have no warning of somethingemerging until it was on the verge. Under those circumstances, the risk for a northbound motorist was that of a relatively high speed, violentimpact with a large animal with the potential forserious property damage or bodily injury.That risk was real and called for an adequate warning to motorists.

Although all three vehicles had hazard lights on, they were parked off the eastern side of the road.It is not unreasonable that a motorist would suspect that this indicated something amiss on that side of the road.At the least, it is equivocal. When combined with the fact that there was smoke coming fromthe valley just behind the cars, it may well suggest, as it did to the applicant, that the vehicles were associated in some way with controlling a fire.More to the point however, those cars did little, if anything, to warn motorists approaching from either direction, and particularly those travelling north, that there may be a problem associated with the western side of the road.

Three adult members of the respondent family were present.It would have been a simple matter for one of the three vehicles to have been put either onthe western verge, or partly there and partly on the bitumen, with its hazard lights flashing, at a point south of the area where the steer was suspected to be.This would have had the effect of warning north bound traffic that there was a problem ahead.

Given that at least one of the respondents,Mark, had formed the opinion that the animal was probably on the western side obscured by bushes, given the magnitude of the risk and given the real chance of its occurrence, the reasonable response in the circumstances was for one of the three to have been on the road at some point in between the vehicles marking the northern and southern ends of the suspect section,flagging down traffic approaching from either direction.As Samantha said in evidence, it was not intended to "capture" the animal.The idea was to locate and reassure it, so that it could be calmly returned to safety.

Bearing in mind that a driver's attention would have already been attracted by the hazard lights flashing on that person'sside of the road, it is reasonable to infer that a responsible driver would respond immediately to such a scene and reduce speed to a point where the risk of serious impact would be minimised, if not obviated.Given the manpower available, it would have been easy to arrange such a division of responsibility and in all probability, it would have been effective.The failure to take theseprecautions was a breach of their duty of care and I find that the respondents were negligent.

In my opinion the applicant is not guilty of contributory negligence. Notwithstanding his impression that the flashing lights he saw on two of the three cars on the eastern side were associated with the smoke, he began to decelerate as a precaution, but before he had reduced his speed by more than about 10 kph, the steer emerged suddenly in front of him.In all the circumstances, it is not unreasonable that he should have been unsure of the potential problem and in those circumstances, he cannot be said to have failed to have had sufficient care for his own safety in not decelerating more sharply.

The applicant's response once he saw the steer, cannot be criticized.He had no time to do anything but brake.It was accepted at trial that the applicant did not register Bronte waving his arms.The probabilities are that this was because Bronte was at least partly hiddenby the scrub.The applicant cannot be found negligent in having failed to observe him.

For these reasons, I grant the application to review the decision of the learned Special Magistrate by setting aside the judgment entered for the respondents and the costs order in their favour, and substituting judgment for the applicantfor $4,100.I will hear the parties on interest and costs.