Pritchard & Pritchard v Commonwealth Insurance Ltd - [2007] SADC 104

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PRITCHARD & PRITCHARD v COMMONWEALTH INSURANCE LTD
[2007] SADC 104
Judgment of His Honour Judge Rice
12 October 2007
ANIMALS - TRESPASS BY ANIMALS - TRESPASS AND OTHER ACTIONS AT COMMON LAW - DAMAGES
Plaintiffs are the owners of a property used as a stud farm for alpacas - claim that the dogs of a neighbour killed ten alpacas - liability disputed - as to quantum, value of alpacas at the date of death assessed - some of the alpacas were pregnant females and some were to be mated in the near future - a question arose as to whether a separate amount should be awarded for future cria (offspring of alpaca) although unborn at the time of death.
Held - the dogs of the defendant's insured were responsible for the deaths of the alpacas - further, following New South Wales authority, no award for future cria.
Insurance Contracts Act 1984 (Cwth) s 51; Dog and Cat Management Act 1995 s 66, referred to.
Cowper and Cowper v J G Goldner Pty Ltd (1986) 40 SASR 457, not followed.
Electricity Trust of South Australia v O'Leary (1986) 42 SASR 26; Bell v Thompson (1934) 34 SR (NSW) 431, considered.

PRITCHARD & PRITCHARD v COMMONWEALTH INSURANCE LTD
[2007] SADC 104
Introduction

This is a claim for damages arising from the alleged actions of dogs belonging to the defendant’s insured in killing ten alpacas owned by the plaintiffs. The claim is for the value of the alpacas as at the date of the killings plus the value of the cria (the name given to alpaca offspring) being carried by some of the alpacas which were killed. There is the usual claim for interest and costs.
The defendant disputes both liability and quantum. In the event that liability is found in favour of the plaintiffs, one of the contentions by the defendant is that the award should not include the value of the cria once born because they had no separate existence at the time of death.
It is convenient at an early stage to refer to aspects of the case about which there is no dispute.
There is no dispute that the plaintiffs were the owners of a property at Old Bull Creek Road, Meadows. They were registered breeders of alpacas and ran an alpaca stud farm known as Anneaton Alpacas. Any alpaca bred on that farm has the stud prefix of “Anneaton” as the first name. There was no challenge to the fact of their ownership of 66 alpacas as of 24 June, 2005. Along the northern boundary of the plaintiffs’ land was land owned by Dejan (Dean) Ilic (“Mr Ilic”).
It was admitted in the pleadings, and there was no challenge in any event, that Mr Ilic was the registered keeper and owner of two dogs, a Jack Russell and a Maremma.
There was no dispute that, on 24 June, 2005, ten alpacas belonging to the plaintiffs were killed (nine were found dead and one had to be put down). At trial, there was no serious challenge to the fact that Mr Ilic’s two dogs were on the property of the plaintiffs at the time when a mauled alpaca was found still alive and shortly before nine were found dead and appeared to have been very recently killed. In any event, I am quite satisfied, for the reasons expressed below, that the two dogs were Mr Ilic’s dogs.
As to legal matters relating to liability, it is acknowledged that Mr Ilic died after the relevant events and that any of his liability now attaches to his insurer, the named defendant (s 51 of the Insurance Contracts Act 1984 (Cwth) and s 66 of the Dog and Cat Management Act 1995).
The matters in dispute can be narrowed to these:
1.Were Mr Ilic’s dogs responsible for the killing of the alpacas?
2.Assuming liability in favour of the plaintiffs, what is the quantum of the loss to which they are entitled and, more particularly, should any allowance be made for cria?
The plaintiffs called Mr Pritchard, one of the plaintiffs (on liability and quantum), Ms Brame and Mr Arthy (on liability) and Mr Williams (on quantum). No evidence was called on behalf of the defendant insurer as to liability or quantum.
Evidence as to liability
I commence with the evidence of Mr Pritchard, although some of the evidence on this topic from other witnesses pre-dates what he was able to say.
Mr Pritchard gave evidence that, although he and his wife lived on the property, they both worked in Adelaide during the week such that they did not arrive home until into the evening. Their practice was to ensure that, on the Sunday of each week, the alpacas were in the correct paddocks and had food and water for the week.
On Saturday, 25 June, 2005, at about 10.30 a.m., Mr Pritchard went into the paddocks to check on the alpacas. He walked through a small paddock towards a larger one when he saw the alpacas herded into the south-eastern corner of that larger paddock. He said he saw a large white dog and the Jack Russell dog “...effectively corralling or guarding those animals” (TP27). Mr Pritchard did not see the dogs attacking the alpacas. Mr Pritchard yelled at the dogs as he moved towards where they were with the alpacas. He had not seen the dogs before.
The dogs moved down a section of gully in that paddock and he saw them run through a gap in the fence on to Mr Ilic’s property. It was at that stage that Mr Pritchard saw a number of dead alpacas. At that stage he saw a neighbour, Mr Arthy, coming across his (Mr Pritchard’s) paddock towards him. Mr Arthy’s evidence, to which I will come, was to the effect that he had seen the dogs, from his property, herding the alpacas into the corner of a paddock.
With Mr Arthy’s assistance, Mr Pritchard collected and later buried nine of the dead alpacas. Importantly, at the time Mr Pritchard and Mr Arthy searched the paddock, one of the alpacas was alive. It was adjacent to one of the dams in the paddock. It was seriously mauled and had to be put down. The head and the wool around it were wet, but it was still breathing when found.
Mr Pritchard acknowledged that he did not see blood on either dog, particularly nothing was seen on the large fluffy dog. He said that he did not get closer than 50-60 metres from the dogs. I note again that the dying alpaca was wet about the head and body. If either dog, or both dogs, were in the water that may account for blood not being seen. A stock-take later in the day revealed there was a missing alpaca. Mr Pritchard found it later in the day.
As for the dogs, Mr Pritchard described the large dog as a white fluffy dog, like a breed known as a Maremma. It was described as a very powerful dog, larger than a Labrador. The small dog, referred to as a Jack Russell, was described by Mr Pritchard as white with a blackish head.
Bearing in mind where Mr Pritchard had seen the dogs run and an assertion from Mr Arthy, Mr Pritchard rang Mr Ilic and left a message on his answering machine to tell him what had happened and that Mr Pritchard believed his dogs were responsible. Mr Pritchard also rang the police. A Council inspector, Mr Beaton, also came to Mr Pritchard’s property.
Mr Ilic received the telephone message and came over to Mr Pritchard’s property. Mr Ilic had various conversations with Mr Pritchard and also Mr Beaton (who is also now deceased). I find that the effect of those conversations was that Mr Ilic acknowledged that the two dogs were his and that they were responsible for killing the alpacas. Mr Ilic also said that the dogs of another neighbour may have been involved. Mr Ilic went away and came back with that neighbour. The neighbour denied his dogs were involved.
I also accept Mr Pritchard’s evidence that Mr Ilic had said (after the alpacas had been buried later in the day) that, on a couple of occasions when Mr Ilic had come home from work, the dogs did not come when they were called. Further, that he had been breeding Boer goats and some of the kids had been killed in a similar manner to the alpacas. Still further, he reaffirmed an earlier comment that it was lucky it was not the children.
At some stage, Mr Pritchard tried to resolve his financial loss with Mr Ilic on a neighbour-to-neighbour basis. For that purpose, Mr Pritchard prepared a spreadsheet, exhibit P6, and gave it to Mr Ilic. Mr Ilic said he had not notified his insurer and, indeed on a number of later occasions, resiled from an acknowledgement that his dogs were responsible. The topics of quantum and exhibit P6 are referred to below.
As mentioned, Mr Arthy is a neighbour of Mr Pritchard, although they do not have a common boundary. Mr Arthy’s property is to the east of that of Mr Ilic, and Mr Pritchard is essentially to the south of Mr Ilic (see exhibits P1 and P4). Mr Arthy came to meet Mr Ilic in late 2003, early 2004, when the latter moved in. Mr Arthy saw two dogs with Mr Ilic on his property on a number of occasions. One was a large white fluffy/hairy dog and the other a terrier-type size, Jack Russell cross, with browny, white patchy markings.
Mr Arthy also saw the same two dogs together on his property, well before July, 2005, cutting across towards Old Bull Creek Road. He shooed them back to Mr Ilic’s property.
Further, on two separate occasions some weeks apart, Mr Arthy saw the two dogs together on his property chasing his horse. On one of those occasions the little dog had the horse cornered in a paddock. On both occasions they went back on to Mr Ilic’s property.
Mr Arthy also saw the dogs on Mr Pritchard’s property on 25 June, 2005. The occasions of seeing Mr Ilic’s dogs on his (Arthy’s) property were over about a six week period before that. Mr Arthy’s attention was drawn to Mr Pritchard’s alpacas being cornered in a paddock by a large, white animal. I accept that Mr Arthy could see these events even though he said they occurred in what appeared to be a different spot from that referred to by Mr Pritchard.
With the aid of binoculars, Mr Arthy could see Mr Ilic’s dogs holding the herd in a corner and the big white dog was rushing in to the herd as if trying to peel one off. Mr Arthy tried to get in contact with Mr Pritchard by telephone and then noticed Mr Pritchard in the paddock. Mr Arthy then went over to Mr Pritchard’s place and into the paddock where he could see Mr Pritchard. Mr Arthy said he saw the dogs running away from Mr Pritchard’s property, on to Mr Ilic’s property and past two water tanks on that property. After that, Mr Arthy helped Mr Pritchard locate the mauled alpacas, including the one that was still alive but which, as mentioned, had to be put down.
These were the only dogs that Mr Arthy had seen on Mr Pritchard’s property. Mr Pritchard had not seen these dogs on his property and had not seen any other dogs on his property either before or after these events.
The plaintiffs also called Ms Brame who lived on a nearby property and who would, on occasions, walk along Old Bull Creek Road. She gave evidence of seeing two dogs on the Pritchard property on one occasion and a small dog there on another.
As to the first occasion, she saw two dogs running through the fields on the Pritchard property. Her attention was attracted by the unusual combination of a little dog and a very big dog running together. The big dog was cream in colour with long fluffy hair and was bigger than a Labrador. She saw the little dog, which she said could easily have been a Jack Russell, bark at, but not otherwise get involved with, one of the alpacas.
On the second occasion, which she was able to place at a time not long before 25 June, 2005, she saw a Jack Russell that had herded 15 to 20 alpacas into the corner of a paddock. She said the dog seemed to have the alpacas completely under its control. She saw only the one dog. She was concerned at what she had seen but did not find either of the plaintiffs home when she went to their house. She drove past the same spot about an hour later in the day. The alpacas were still in the same spot but she did not see any dog. Ms Brame said she has not seen other dogs on the Pritchard property.
On the question of liability, I am satisfied that Mr Ilic’s dogs were on the Pritchard property when seen by Mr Pritchard and Mr Arthy on 25 June, 2005. That was at a time when all but one of the alpacas were dead. The one alpaca that was alive at that time appeared to have been recently mauled and was wet. No other dogs were seen on the property at that time or any other time. Although the dogs were not seen to actually attack any alpacas on that day (or at any time), they were certainly paying close attention to them. Applying the civil burden, I am satisfied that Mr Ilic’s dogs attacked and killed the alpacas. Although no blood was seen on either dog, that is not decisive and, in any event, the observations were made from some distance away. Further, any blood could have been washed away if the attack of an alpaca finished in one of the dams.
This finding on liability is confirmed by concessions and acknowledgements by Mr Ilic later on the day of the attacks. His acknowledgement that his dogs were there and responsible I interpret as an admission that they were there, and were capable of these killings given his own knowledge and experience with them.
Quantum generally
As mentioned, Mr Pritchard gave evidence on quantum, as did Mr Christopher Williams (“Mr Williams”), one of the owners of the largest privately owned herd of alpacas in Australia.
Mr Williams owns and runs an alpaca farm on a property named Ambersun Alpacas at Mount Compass. Mr Williams is involved in breeding and showing their top stud animals at the various Royal Shows around Australia each year, with the Canberra Show (each alternate year) being the premier event. Mr Williams has been very successful in showing alpacas. He is heavily involved in the industry and is involved in buying and selling alpacas both locally and internationally. Mr Williams keeps abreast of the auction and paddock prices for alpacas.
Importantly, he is aware of the blood lines or genetics that are available in Australia for alpacas, partly because that is an aspect of his business and partly because of his knowledge of the Australian database for female, potential stud males and show alpacas.
I readily accept that Mr Williams is an expert for the purpose of assessing the value of these alpacas. I did not understand there to be a challenge to his expertise as distinct from factors that are relevant to the value of a given animal. However, before proceeding further, it is necessary to say something about the legal principles applicable to that valuation. More particularly, whether any allowance should be made for any unborn cria, that is, any offspring being carried by a female at the time of the death.
Legal principles applicable to quantum
Although the formulations vary slightly, the main measure of Mr Pritchard’s loss is the market value of the alpacas as at the date of death. In Electricity Trust of South Australia v O’Leary[1], which is a case involving the death of an unraced two year old thoroughbred gelding, King CJ put it this way (at p 29):
The appropriate measure of damages is the value of the horse to the respondent: Liesbosch Dredger v SS Edison [1933] AC 449 per Lord Wright at p 464.
Certainly that applies to the male alpacas and those females not shown to be pregnant. Concerning the females not shown to be pregnant, no amount is sought for future cria, although the market value at the date of death is partly determined by the likelihood of being able to bear cria.
[1] (1986) 42 SASR 26
However, as mentioned earlier, a separate issue arises as to the method of valuing alpacas shown to be pregnant (the evidence concerning which is dealt with below). Should the award include a separate amount for those cria yet to be born?
It was submitted on behalf of the plaintiffs that a separate amount should be awarded for the value of the potential, unborn cria, on the basis that in the near future they would be born as part of the breeding plans.
The defendant insurer, on the other hand, contends that the measure of damages is the value of the alpaca with cria in utero as at the date of death and not the alpaca and cria separately: Bell v Thompson[2].
[2] (1934) 34 SR (NSW) 431
Mr Howard, who appeared for the defendant insurer, also referred me to the decision of Bollen J in Cowper and Cowper v J G Goldner Pty Ltd[3]. In Cowper’s case the defendant was engaged to transport a valuable mare that was in foal from South Australia to New South Wales. The mare became seriously ill during the journey and, despite prompt veterinary help, the mare and unborn foal died a few days later. The defendant company was found to be negligent for failing properly to inspect the mare during the journey at which time veterinary intervention may have saved the mare.
[3] (1986) 40 SASR 457
Part of the claim for damages included the loss of the foal that the mare was carrying at the time of death. Evidence was given at the trial of the probable value of the foal being carried by the mare. The particular point now being argued was not, so it would appear, argued in that case. Bollen J allowed, as a separate part of the award, an amount for the loss of the foal, albeit unborn at the time of the death of the mare.
In his book “The Horse and the Law”, Third Edition, the learned author, Mr C L Pannam QC, argues that Bollen J was incorrect to include in the damages awarded an amount for the unborn foal. He noted that Bell v Thompson was not cited and there was no consideration of the principles involved in awarding damages in such a case. The point now being considered was not argued.
One of the questions that arises is whether I am bound by the decision of Bollen J quite irrespective of authority and argument to the contrary from elsewhere. The answer to that question is whether the decision to make a separate allowance for the value of the unborn foal was necessary for the decision and made after a consideration of the principles and any relevant authorities. I have come to the conclusion that His Honour’s decision appears to have been made without the benefit of argument or reference to authority on this discrete, but important, point. I do not regard myself as bound by the decision. I decline to follow it and propose to proceed upon the basis that Bell v Thompson is good law. I reject the claim in as much as it seeks an amount for what was claimed as “potential cria”, either in utero or planned to be born before September, 2006.
The value of the female alpacas with unborn cria is to be determined by their commercial value as female and cria together, not separately, as at the date of death
A totally different but analogous area is that relating to injuries to unborn children. Compensating for pre-natal injuries is beset by the problem that, at the time of the injuries, the plaintiff is not a separate legal person. Such an approach is legally consistent with that being put here by the defendant insurer, namely, that, at the time of injury or death, the mother and foetus are regarded as one. The separate legal personality begins at birth.
Evidence as to quantum
As mentioned previously, there were ten alpacas killed. Mr Pritchard prepared a spreadsheet of the animals killed and a range of values for each of them: exhibit P6. It was that exhibit which was sent to Mr Ilic with a view to resolving the question of compensation quickly on a neighbour-to-neighbour basis. Mr Pritchard estimated the total value range to be between $20,000 and $30,800, but was prepared to accept $20,000 as full compensation. Mr Pritchard had little knowledge or experience in valuing alpacas. I regard the spreadsheet as no more than a general guide. For the purposes of a valuation, I generally rely upon the evidence of Mr Williams.

Mr Pritchard gave additional evidence concerning exhibit P6 and factors potentially relevant to the valuations arrived at by Mr Williams. The evidence shows that, of the ten alpacas killed, seven were female and three were male. The last alpaca on the list should be Anneaton Bobby, not Ebony Boy.
Four of the females and one of the males were registered with the International Alpaca Register (“IAR”). Mr Pritchard produced the pedigree registration certificates for these five registered alpacas: exhibit P7.
Mr Pritchard also produced documents showing the breeding of the five unregistered alpacas (all beginning with the prefix “Anneaton” signifying they were bred by the plaintiffs). Together with those documents were two additional pages, “Mating Schedule Report”, relating to two of the registered alpacas, Kimberley Ash Georgia and Paraclete Venus: together exhibit P8. Based on the Mating Schedule Reports, I accept those two alpacas were pregnant at the time they were killed.
As to the balance of the female alpacas, there was a breeding programme in place at various times after they were killed. They were not pregnant at the time of death but they were breeding females and part of the plaintiffs’ long-term breeding programme.
Returning to the evidence of Mr Williams, I have already indicated that I accept he has the appropriate expertise to value these alpacas. Initially, he provided a valuation relying upon what prices were being sought and obtained at auctions. At that stage he was not given any information about the actual identities and pedigrees of the alpacas concerned.
Then, in about August/September, 2006, Mr Williams provided another valuation, this time with much more information, particularly as to pedigree, upon which he relied. There were tendered through Mr Williams (as part of exhibit P9) two important documents, one headed “The Value of Alpacas” and the other “Pedigree Analysis of Anneaton Female Alpacas, September, 2006”.
The general effect of those documents and his evidence is that there are two main criteria that affect the value of alpacas, namely, their pedigree or genetics and, secondly, their phenotype, that is, the range of traits exhibited in the animal itself such as fibre quality and conformation. As to phenotypic qualities, Mr Williams did not inspect the dead alpacas and therefore had to rely mainly on their genetics. Importantly, Mr Williams’ report headed “Pedigree Analysis” contains this sentence:
While a foetus in utero adds value to a breeding female, most often it is offered gratuitously to the buyer to promote the sale.
In evidence he said that the value of a female alpaca is the same whether pregnant or not. Usually, the female is significantly more valuable than the male.
Subject to one matter, I accept Mr Williams’ valuations in the document “Pedigree Analysis”:
Value of loss to Anneaton herd
In the absence of the ability to evaluate females of the Anneaton herd on the basis of their phenotype, a value has been prescribed for each of the seven females based on the genetics in their pedigrees. Using a set of values prescribed according to the number of elite quality males in the pedigree of each female the following values are recommended.
Breeding females (killed in dog attack, June 2005)
Anneaton Bella  $7,000
Anneaton Charlene  $9,000
Kimberley Ash Georgia                  $9,000
Paraclete Laura  $5,000
Anneaton Queenie  $7,000
Paraclete Venus  $5,000
Anneaton Viognier  $5,000
Males (killed in dog attack, June 2005)
3 males @ $850  $2,550
The one exception to that acceptance is that, in evidence, Mr Williams was prepared to accept a valuation of the males at $750 each. I accept and act upon that qualification. The various matters put, and answers given, in cross‑examination do not cause me to make any other adjustment to these valuations.
These valuations were made as at September, 2006, but I accept the general effect of Mr Williams’ evidence that these valuations apply to June, 2005. I accept that these valuations are principally based on pedigree and that, in some cases, an alpaca is quite valuable even though a young female.
As I have indicated previously, I have rejected the claim in as much as it includes an amount sought for “potential cria”.
Conclusion
As indicated earlier, liability is found in favour of the plaintiffs.
I assess quantum at $49,250.00.
There will be judgment for the plaintiffs in the amount of $49,250.00.
I will hear the parties on the question of costs.