Timothy James Hall and Margot Julianne Hall v Neville Copping No. SCGRG93/1578 Judgment No. 4308 Number of Pages 5 Negligence

[1993] SASC 4308

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Negligence - road accident cases collision between truck and cows on country road in darkness - finding that no warning given by owner of cows of their presence - driver acquitted of negligence - findings of fact made by Stipendary Magistrate accepted on appeal - whether negligence ought to have been inferred.

HRNG ADELAIDE, 3 December 1993 #DATE 8:12:1993
Counsel for appellants:     Mr M A Frayne
Solicitors for appellants:    Bonnins
Counsel for respondent:     Mr O W Downs
Solicitors for respondent:    Lawson Downs

ORDER
Appeal dismissed.

JUDGE1 MATHESON J This is an appeal from a decision of his Honour Mr. Hiskey SM dismissing a claim for damages. I do not think I can improve on his Honour's introductory summary which I now quote with only minor amendments:
    "The (appellants) are dairy farmers in the South East of
    South Australia. Their property borders a road commonly
    referred to as Lucindale Road. Their property is on either side
    of that road. At times it is necessary to move herds of cattle
    from one side of the road to another. The milking of the herd
    is carried out upon the dairy located on one side of the road.
    On 13 May 1990, a herd of about 100 black and white Friesian
    cattle had been milked. After they had been milked they had to
    be moved from the dairy side of the Lucindale Road to a paddock
    on the other side of that road. There was a gate leading into
    the (house and dairy) paddock with a road going down towards the
    house and dairy. The cattle had to come out of that gate, cross
    the road and enter a paddock through a gate directly opposite
    that from which they emerged. It was whilst this was happening,
    with some cattle across the road into the paddock on the other
    side, and some cattle between the fencing alignment on Lucindale
    Road and some cattle still on the dairy side of Lucindale Road,
    that a collision occurred. The (respondent), his wife, a friend
    of theirs and their two children had been to a pony meet. The
    (respondent) was driving a 7 tonne International Truck. There
    were two ponies in the truck. The (respondent), his wife and
    their friend were seated in the front seat. The two children
    were within the cabin but not on the seat rather sitting or
    lying in a sleeping compartment at the top of the cabin of the
    truck. It was dark. It was not wet. The lights on the truck
    were lit. The (respondent's) case is that he drove along the
    Lucindale Road, came around a corner, saw something ahead of him
    on the road, thought at first it was sheep but then realised
    that it was a herd of cattle, he immediately applied his brakes.
    The cattle were strung right across the road and he could
    neither swerve left nor right to avoid an impact, he kept
    applying his brakes but a collision occurred. (It was agreed
    that the collision occurred about 6.45 p.m.) A number of cattle
    were killed. Others had to be destroyed. Others were injured.
    The Friesian cattle were stud dairy cattle and obviously
    magnificent beasts. It is agreed that as a result of the impact
    the (appellants) have sustained a loss agreed at the sum of
    $20,454.90." 2. I interrupt the quotation to state that one of the appellants, Mr C W Hall and his employee, Stuart Giglio, were the only witnesses for the appellants. His Honour continued:
    "Mr Hall has been a dairy farmer for 30 odd years. He has
    run this property for the same length of time. He says that it
    is common for him to herd cattle across the Lucindale Road in
    the same fashion as occurred on this particular occasion. He
    was being helped in the movement of the cattle by the witness
    Stuart Giglio. This witness now resides in Western Australia
    and came to the Mount Gambier Court for the purpose of giving
    evidence in this action. He had at the time of the incident
    been working for the plaintiff for two months and one week. The
    (appellants') case is that the cattle were being driven by Mr
    Giglio walking on foot behind them. Mr Hall says that he
    followed on a motorbike. He says that as the cattle emerged
    from the gate on to the road and began to cross the road into
    the paddock on the other side that he, Mr Hall, was astride his
    four-wheel motorbike which was fitted with a headlight. He says
    that as the cattle were emerging on to the road he looked to his
    right along the Lucindale Road. He saw, quite a distance off,
    the lights of an oncoming truck. This was the (respondent's)
    truck. He put the lights as being about a mile away. Mr Hall
    says that he drove along the Lucindale Road towards the oncoming
    truck with the headlight on his motorbike shining down the road.
    He then turned and put the motorbike on the verge of the road
    with the light facing towards the cattle. He did this to warn
    the oncoming truck that cattle were crossing the road. After
    the accident there was a conversation with (the respondent) Mr
    Copping, the driver of the ... truck. According to Mr Hall, Mr
    Copping said to him words to the effect that the accident was
    his fault and he clarified that further by saying that there was
    something wrong with the lights on his vehicle. According to
    the evidence of both Mr Giglio and Mr Hall, as the truck
    approached the only other vehicle near the scene of the accident
    was Mr Hall on the motorbike. After the accident had occurred
    and there had been some conversation, the (appellants') case is
    that Mr Hall rode the motorbike back to the farm to bring back a
    rifle to help destroy the animals. He left on the motorbike and
    came back in a utility. Later Mr Giglio went and got a tractor
    to help drag the dead cattle from the road. I reject (Mr
    Hall's) evidence and that of Mr Giglio. I do not believe their
    version of what happened immediately prior to the accident. I
    find that in fact Mr Giglio was not on foot but that he was
    riding the motorbike. I find that Mr Hall was not riding the
    motorbike when the accident occurred but rather driving a
    utility. I find that immediately after the incident Mr Giglio
    approached Mrs Copping and the other woman passenger in the
    (respondent's) vehicle. I find that he said words to the effect
    that he had been on the motorbike chasing after a cow which had
    wandered off. I find that Mr Hall said, immediately after the
    incident, words to the effect that he had tried to get to the
    Lucindale Road to give warning but was unable to do so. I find
    that the herd of cattle as they emerged from the road were not
    being looked after. I find that no steps were taken by Mr Hall
    or Mr Giglio to warn the (respondent) that the cattle were
    there. I reject the assertion that Mr Copping at any time said
    that the lights on his truck were defective or in need of
    repair." 3. Mr. Frayne, who appeared for the appellants, rightly conceded at the outset that, having regard to the authorities, he could not challenge on appeal his Honour's findings on credibility or his findings of fact. His submission was that on those findings of fact, his Honour erred in not inferring negligence. He submitted that he should have found either that the respondent's speed was excessive or that his look-out was defective, or a combination of both. To rule on that submission, it is necessary to focus on his Honour's findings about the speed and course of the respondent's truck. They included the following:
    "I find that the defendant was travelling at round about 80
    kilometres per hour as he travelled on Lucindale Road. It was a
    dark night but there was nothing particularly hazardous about
    the weather conditions or the state of the road. It was an open
    road ... I am satisfied that a speed of round about 80
    kilometres per hour was not too fast given the road conditions,
    weather conditions and the general surrounding circumstances. I
    find that at this time i.e. the date of this accident there
    were no warning signs on the road to make the defendant aware
    that cattle might be crossing. I find as a fact that he did not
    know that it was the plaintiff's practice to bring his cattle
    across the road at this point and about this time of the night
    ... He was not travelling too fast for the road conditions ...
    There is no evidence before me to indicate or suggest that the
    brakes upon the defendant's truck were faulty ... I find that
    skid marks were left on the road. They indicate that the
    defendant made a proper attempt, by application of the brakes,
    to bring his vehicle to a halt ... I find that the cattle were
    spread across the road from fence to fence and beyond. As the
    defendant said in his evidence, he had nowhere to go. It is
    unreasonable to suggest that the defendant should have moved off
    the bitumen on to the dirt verge, potentially endangering human
    life whilst still facing the real probability that he would have
    hit some of the cattle in any event ... The principal case made
    by the plaintiff against the defendant is that the defendant
    failed to observe the warning which the plaintiff was giving
    from his motorbike. Such an allegation fails because I reject
    the evidence of Mr Hall that he was at any time on the road on
    the motorbike shining the light of the motorbike either down
    towards the oncoming truck or on the herd of cattle. I find
    that that did not occur. The defendant's account is that he
    came around a sweeping bend. He says that he picked up the
    cattle in the headlights of his truck as soon as they could be
    seen. I accept what the defendant has said. His view of the
    cattle as he approached is corroborated by the evidence of his
    wife and their friend. All three of those witnesses impressed
    me. Perhaps one of the strongest points that could be made by
    the plaintiff would be the submission that with a herd of some
    100 or so black and white cattle crossing the road, a driver
    with a reasonable look out must surely have seen them. But it
    is not as if the defendant failed to see the cattle at all. The
    fact that lengthy brake marks were left upon the road indicates
    that the defendant did in fact see the cattle some time before
    the impact with them. The defendant gave evidence that he, as a
    result of a contact made to him by a loss assessor, has returned
    to the scene and paced the distance along the road from where
    the cattle were crossing to the bend that he came around before
    seeing the cattle. He says that that distance was about 100
    metres. Counsel for the plaintiff urges me to reject that. He
    says that looking at the photographs it is apparent and obvious
    that some greater distance than that was available to the
    defendant for him to see the cattle. But again I found what the
    defendant said about this portion of his evidence, which emerged
    late in the piece when he was being cross-examined, was evidence
    that I ought to accept. I am confident in my own mind that this
    was not an invention by the defendant. The way in which that
    evidence emerged was very convincing. I believe that the
    distance probably was the distance given by the defendant in his
    evidence ... I find that the defendant came around a sweeping
    bend reaching the point in the bend where he had a view ahead of
    the cattle crossing the road only some 100 metres or so away.
    Against that background, it is not obvious or apparent that the
    defendant should have seen the cattle sooner than he did. I
    found the defendant to be a mature person, he gave me the
    impression that he had been driving carefully that night. There
    was nothing untoward happening within the cabin of the truck
    likely to have distracted him. He says that he was not in fact
    distracted. I believe him when he says that, although it had
    been a long day for him, that he was driving carefully. Neither
    he nor the other passengers in his vehicle saw the cattle until
    it was too late for them to be able to do anything about it over
    and above the steps actually taken. I bear in mind the number
    of cattle, that it was a large herd, that they were black and
    white in colour. I bear in mind that on the defendant's own
    case he had some occasion to be put upon guard by the knowledge
    that there were headlights approaching him from his left and
    travelling towards the road. But I accept his account that he
    saw those headlights and reasonably formed the judgement in his
    own mind that the lights were sufficiently to his left not to
    create any danger to him. Indeed, I find that when the accident
    happened, those lights were the lights on the utility being
    driven by Mr Hall ... I find that (the defendant) was keeping a
    proper look out. I find that his failure to see the cattle
    until he was too close to them that he was unable to stop in
    time was not due to inadequate look out but due to the bend in
    the road and due to the fact that the cattle were not lit. I
    find that there was no illumination of the cattle by artificial
    lights either from the utility or by the plaintiff or anybody
    else riding a motorbike along the grass verge with the lights of
the motorbike shining on the cattle." 4. I am bound to say that when I first read his Honour's judgment I found his reasons for not inferring negligence convincing, and having carefully considered Mr. Frayne's arguments, I am not persuaded that he was in error. I do not overlook the authorities which establish that drivers of motor vehicles are not entitled to drive at night on the assumption that there will be no unilluminated moving objects on an unlit country road (see, for example, Gardner v. Della Santa (1968) SASR 345 at p 349 and Wallace v. Norman (1984) l MVR 135 at p 142). His Honour had to allow for reaction time in considering what the respondent saw and did. Perhaps some motorists might have seen the cows sooner than the respondent did. Perhaps some motorists might have applied their brakes sooner than the respondent did. I am not persuaded, however, that his Honour should have made the necessary inferences here for this appeal to succeed. 5. The appeal will be dismissed.