Westbrook v Westbrook & Ors No. DCCIV-96-41549 Judgment No. D3759

[1998] SADC 3959

Westbrook v Westbrook & Ors

Civil

Judge Allan

The plaintiff claims damages from the defendants for injuries and loss sustained by her when a motor vehicle in which she was a passenger collided with a cow on the Princes Highway between Meningie and Tailem Bend.

The case comes on at this time for a determination as to the question of liability; both as between the plaintiff and the defendants and as between the first defendant on the one hand and the second and third defendants on the other.

The accident occurred at about 8.45 p.m. on 6 September 1995 at a point about 25 kms north of Meningie and about 2 kms south of where a dirt road called Eckert Road joins Princes Highway. At this point, Princes Highway runs in a north-south direction and Eckert Road runs in an east-west direction, meeting Princes Highway on the western side of that road.

The plaintiff was a passenger in a 1982 Toyota Station Wagon being driven by her husband, the first defendant, in a northerly direction along Princes Highway. The plaintiff was seated in the front passenger seat of the vehicle at the time of the accident and was wearing a seat belt.

The cow was owned by the third defendant, a farmer, and which, at all material times, was the occupier of land adjacent to Princes Highway in the area where the accident occurred. At all relevant times, the second defendant was a servant or agent of the third defendant and acting within the scope of his authority.

The accident occurred at a point in the road between Meningie and Tailem Bend where the road was bitumen, in good condition, straight and flat and with no bushes or trees on the verges of the road. The verge on each side was grassed. On the western side, the verge fell away to a ditch. It was a dark night.

The first defendant and the plaintiff were travelling from Mount Gambier to Adelaide. After driving through Meningie, the first defendant was driving at speeds of up to 100 kms per hour with his head lights on high beam. He gradually approached a line of vehicles travelling in the same direction. There were two cars and a semi-trailer. The two cars were travelling in front of the semi-trailer. As he approached the semi-trailer, and when he was at a distance of about 200 metres from the rear of it, he changed his lights to low beam. He did this to avoid dazzling the driver of the semi-trailer. He remained at a distance of about 200 metres to the rear of the semi-trailer. His speed remained steady at between 95 and 100 kms per hour. The speed limit in the area was 110 kms per hour. He decided to remain behind the semi-trailer. He was in no hurry. During the time that he followed the semi-trailer in this way, the semi-trailer did not brake, swerve or veer.

The plaintiff and the first defendant saw the cow at about the same time. It was on the bitumen, facing directly towards their vehicle. It was to the left of the centre of the western carriageway of the road. The vehicles travelling in front of them must have passed it. The cow was a Hereford-Friesian cross aged about 6 years. It had a white face and a dark body. The first thing that the plaintiff and the first defendant noticed was it’s white face. It did not seem to be moving. The first defendant braked. The left front of the car struck the cow. The collision occurred in the western carriageway of the road. The cow had escaped from the third defendant’s property.

During the day of the accident, along with other cows in the herd, the cow had been weaned from it’s calf. It is well-known, and the second defendant knew, that cows recently separated from their calves will attempt to re-join them.

The weaning process, which is stressful to both the cows and calves involved, is conducted in various ways; each designed to produce the least amount of stress for the animals involved; although, whatever process is adopted, it remains a stressful time for the beasts; and a problematic one for their owners.

The usual weaning process adopted by the second defendant was as follows: the cows and the calves were separated from each other in cattle yards on the third defendant’s property; the calves were then placed in one paddock and the cows in an adjoining paddock; the object being that they would thus be in close proximity to each other, thereby reducing the stress of the weaning process. It is a well-recognised method of weaning, sometimes called “on the fence weaning”. The herd which was involved in the weaning process on the day of the accident consisted of about 70 cows and about 50 calves.

To assist in the understanding of what occurred in the course of the weaning process undertaken on the day of the accident, annexed to these reasons is a copy of Exhibit D4 which depicts the relevant part of the third defendant’s property. The semi-circular line shown on that plan extending from the south into Swamp paddock, then into Sand paddock, then into Causeway paddock and then into Swamp paddock again, outlines, in rough form, a swamp. The cattle yards used for separating the cows from the calves are shown at the south-eastern corner of Pine paddock. The two paddocks customarily used by the second defendant for the weaning process and into which the cows and calves would be herded after being separated in the cattle yards were Pine paddock and Mailbox paddock. On 6 September 1996, however, these paddocks were not used; and, for the first time, after the separating process, the calves were placed in Swamp paddock and the cows were placed in Causeway paddock. The reason for this was that, in the judgement of the second defendant, there was insufficient feed in Pine and Mailbox paddocks. Prior to the weaning process occurring, the herd had been in South paddock for about 3 weeks and feed had been running low.

After the cows and calves were separated in the cattle yards, and while the cows remained in the yards, the calves were driven along the run between Yard paddock and Pine paddock, along the fence line of Mailbox paddock and Sand paddock into Eckert Road, west along Eckert Road, into Causeway paddock through a gate situated in the north-western corner of that paddock, along the fence line of that paddock and Ram paddock and, finally, into Swamp paddock through a gateway situated in the south-western corner of Causeway paddock. Once in Swamp paddock, the calves were herded to a position where they were near the fence line of that paddock and Causeway paddock; the idea being that, in that position, they would be able to have some contact with, or be near to, the cows when they were put into Causeway paddock.

As I have mentioned, a swamp extends from the south into Swamp paddock thereby preventing, at least to some extent, access from Swamp paddock to Pine paddock. The calves on being driven into Swamp paddock were herded towards the fence line of that paddock and Causeway paddock in the area to the west of the swamp area.

Once the calves had been driven into Swamp paddock, the second defendant, who was being assisted by his son, returned to the cattle yards and drove the cows along the same route into Causeway paddock, save that the cows entered that paddock through a gate situated at the north-eastern corner of the paddock; that is, at the opposite end of that paddock to the gate where the calves had entered the paddock on their way to Swamp paddock.

After the cows were driven into Causeway paddock, they were not driven towards the fence line where the calves had been driven, the second defendant anticipating that they would naturally make their way to that point; and, indeed, when the second defendant left the paddock, some of the cows were already heading in that direction.

The cows were put into Causeway paddock at about 4.30 p.m. to 5.00 p.m. It was a calm day. It is desirable that the weaning process be conducted on a calm day and in the light so that the cows and calves involved in that process have the opportunity of seeing, hearing or smelling each other.

As I have said, it is well known, and the second defendant was aware, that, following the weaning process, the cows and calves involved will attempt to renew physical contact. It is also well known, and the second defendant knew, that the cows and calves might cross fence lines for that purpose; and that, at least so far as the cows are concerned, if they cannot see, hear or smell their calves, they might return to the place where they were last with them. The second defendant was aware that, in the circumstances, the possibility existed that some of the cows placed into Causeway paddock on 6 September 1995 would attempt to make their way back to the cattle yards. He considered that they were most likely to do this by first crossing the fence line between Causeway paddock and Sand paddock, reasoning that such a route would be the more direct and that the fence which they would have to cross, at least in part, was in poor condition and would not present a significant obstacle. He also regarded it as a possibility that a cow might seek to return to the cattle yards via the gate through which it had entered Causeway paddock; and this is where the plaintiff alleges the second defendant was negligent; saying that, in all the circumstances, the gate was too low and, therefore, inadequate for it’s purpose and that, with the exercise of reasonable foresight, this should have been realised by the second defendant so that steps could have been taken to cure it’s inadequacies. The subject cow escaped from Causeway paddock by jumping that gate.

The gate concerned was significantly shorter than the fence which it adjoined and through which it provided a means of ingress and egress. The second defendant thinks it was about 5 inches shorter. Some measurements taken by the first defendant indicate it was something less than that; but, whatever the measurement of that difference, such difference was readily apparent and would have been apparent to a cow, such as the one the subject matter of these proceedings, desperately seeking to get out of the paddock and make it’s way to the cattle yards. Why a cow, or this particular cow, should seek to make it’s way to the cattle yards by a route which was not as direct or, perhaps, as easy as another, I am unable to say; except, of course, that this was the route taken, at least in part, when it was driven from the cattle yards to the paddock; but I think the reason it took this route does not matter: it was possible that it would and the second defendant was alive to that possibility. The height of the gate compared to the fence was an invitation to a cow desperate to make it’s way out of the paddock to use the gate as it’s escape route: it was the lowest point in the fence line: the obvious place for it to attempt it’s escape. It is apparent that, once it made it’s escape from the paddock, the cow must have become confused as to it’s whereabouts and made it’s way onto the highway.

It was submitted by Mr Birchall, for the second and third defendants, that, in the circumstances, increasing the height of the gate so that it was the same or about the same as the adjoining fence, would have made no difference; it being well known that cows can jump a fence as high as that on the northern side of causeway paddock. However, assuming the ability of a cow to jump that high, it does not follow that a cow will make, or attempt to make, such a jump. It might be a matter of perception. As Mr Botting, the agricultural consultant said, fences are as much a matter of bluff as anything else; designed to give the impression that they cannot be jumped, and that impression having been formed, an attempt is not made; although that does not mean that cows will not breach or jump fences.

In all the circumstances, I think the gate was inadequate. It was too low. The situation could have been rectified by replacing it with a gate of about the same height as the fence or, as occurred subsequently, by running a strand of wire above it at the same height as the fence.

I am satisfied, and find, that the second defendant and, through him, the third defendants, was negligent: in all the circumstances he should reasonably have foreseen that the gate was too low and, therefore, inadequate for containing the cow in the paddock. I turn to the question of whether the first defendant was negligent.

So far as the negligence of the first defendant is concerned, the real question is whether he was negligent in travelling at a speed of 95 to 100 kms per hour at night with his lights on low beam in a farming area where stock are kept. I think he was. He was travelling in an area with which he was familiar and he must have known that stock grazed in the area. Although there is no evidence as to how far the lights on low beam illuminated the roadway in front of his vehicle, the evidence suggests that, on high beam, the lights would have illuminated about 200 metres or more of the roadway in front of his vehicle. He said in evidence that, on high beam, his lights illuminated the rear of the truck from a distance of about 200 metres. If his lights had been on high beam, he would have seen the cow significantly earlier than he did and he would have had more time to take evasive action and, probably, avoid hitting the cow. Alternatively, if he had been travelling at a lower speed than 95 to 100 kms per hour with his lights on low beam, he would have given himself a similar opportunity.

It is not as though the first defendant had no options. He could have dropped behind the semi-trailer to a point where he could have used his lights on high beam without embarrassing or inconveniencing the driver or he could have passed it. I acknowledge that he experienced vibration in the gear lever of his vehicle at speeds of 100 kms per hour or more, but there is no evidence to indicate that his vehicle was incapable of safely passing the semi-trailer; and he had earlier caught up to it. In all the circumstances, therefore, I am satisfied that the first defendant was also negligent.

The plaintiff is entitled to succeed against both defendants. As far as apportionment of liability between the defendants is concerned, I think the second and third defendants should bear 75% of the responsibility for

the accident and the first defendant 25%.

I shall hear counsel as to any orders which should be made at this time and as to costs.