Westbrook v Westbrook & Ors No. Scgrg-98-298 Judgment No. S6916

WESTBROOK v WESTBROOK & ORS
[1998] SASC 6916

Full Court
Coram: Doyle CJ, Millhouse and Nyland JJ

Nyland J

This is an appeal by one defendant against a decision of a District Court judge concerning the determination of liability and by others as to the apportionment of liability in an action for negligence. On appeal the findings of fact made by the learned trial judge were not disputed by the appellant.
On 6 September 1995, Mrs Westbrook (the first respondent), was a passenger in a motor vehicle being driven by her husband (the appellant). The motor vehicle was travelling on the Princes Highway, between Meningie and Tailem Bend. It was dark and there was no artificial lighting. At about 8.45 pm, the vehicle struck a cow which had strayed on to the roadway. The cow was owned by Alan Eckert Nominees Pty Ltd (the third respondent). Alan Eckert (the second respondent) was the agent/servant of the company. The cow had escaped from the Eckert property which is adjacent to the Princes Highway. The Princes Highway runs in a north/south direction and a dirt road, called Eckert Road, runs in an east/west direction, meeting the Princes Highway on the western side of that road. The accident occurred at a point about 25 km north of Meningie and about two kilometres south of where Eckert Road joins Princes Highway. At the point at which the accident occurred, the road was bitumen. It was in good condition. It was straight and flat, 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. After driving through Meningie, Mr Westbrook was driving at speeds of up to100 km/hr, with his headlights 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 Mr Westbrook 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. This was to avoid dazzling the driver of the semi-trailer. Mr Westbrook remained at a distance of about 200 metres to the rear of the semi-trailer. His speed remained steady at between 95 and 100 km/hr. The speed limit in the area was 110 km/hr. Mr Westbrook was in no hurry and decided to remain behind the semi-trailer. At no time did the driver of the semi-trailer cause it to brake, swerve or veer.
Mr and Mrs Westbrook 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 carriageway of the road. The cow was a Hereford Friesian cross, aged about six years. It had a white face and a dark body. It did not appear to be moving. Mr Westbrook braked but the left front of the car struck the cow. The collision occurred in the western carriageway of the road.
The judge found Mr Westbrook to be negligent. He said:
“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 to100 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.”
On the day of the accident, the cow had been weaned from its calf. It was well known that cows recently separated from their calves would attempt to rejoin them. Mr Eckert knew that cows and calves involved in this process would attempt to renew physical contact and might cross fence lines for that purpose. This cow, together with others, was placed in what was called the Causeway paddock at about 4.30 pm to 5 pm. The judge found that Mr Eckert was aware of the possibility that some of the cows placed in the Causeway paddock would attempt to make their way back to the cattle yards. Mr Eckert considered they would be most likely to do this by first crossing the fence line between the Causeway paddock and Sand paddock, reasoning that Sand paddock would be the more direct route and the fence they would have to cross, at least in part, was in poor condition, and would not present a significant obstacle. Mr Eckert also regarded it as a possibility that a cow might seek to return to the cattle yards by the gate through which it had entered Causeway paddock. This particular gate was significantly shorter than the fence which it adjoined. Mr Eckert thought it was about five inches shorter. The judge found that “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”. The judge found that it was apparent that once the cow made her escape from the paddock, it must have become confused as to her whereabouts and made its way on to the highway. The judge found that the gate was inadequate as it was too low and that 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. He therefore found that the second and third respondents were negligent as they should have reasonably foreseen that the gate was too low, and therefore inadequate, for containing the cow in the paddock.
The judge apportioned liability as to 75% to the second and third respondents and 25% to the appellant, Mr Westbrook.
Mr Westbrook has appealed against the finding of liability against him. There is also a cross-appeal by the second and third respondents. They have also filed a notice of alternative contention in which they seek to uphold the judgment for reasons given by the trial judge, or in the alternative on account of Mr Westbrook’s defective look out, which they say precluded him from taking appropriate evasive action.
Mr Steele, who appeared for the appellant, submitted that the trial judge had erred in the inferences drawn from the non-disputed findings of fact. Mr Steele submitted that Mr Westbrook could not be found to be negligent by driving with his headlights on low beam at a safe distance behind a preceding vehicle and to remain behind that vehicle at a speed which was safe in the circumstances, and which was within the speed limit. Further, even if Mr Westbrook had overtaken or dropped behind the semi-trailer and caused the headlights of his car to be on high beam thereafter, there was no evidence to show that he should or could have seen the cow earlier than he did, or that he would have been able to take effective evasive action.
The judge’s finding of negligence is based upon the appellant’s failure to drop behind the semi-trailer for a sufficient distance to enable him to use his lights on high beam, or alternatively his failure to overtake it. He also suggested that if Mr Westbrook had been travelling at a lower speed with headlights on low beam he would have given himself a better opportunity to take evasive action. Mr Westbrook said that he first saw the semi-trailer when he and his wife were out of Meningie on a section of road which is partly winding and partly straight. He caught up with the semi-trailer on a straight section of the road. He made a conscious decision not to overtake the vehicle but remained at a constant distance behind it and he used it to some extent as a guide. This, in my view, was not unreasonable. He was travelling at night on a darkened country road. There were two cars travelling in the same direction in front of the semi trailer, which may have been an additional obstacle with respect to overtaking, although there was no evidence to establish their actual position on the road. There was nothing about the manner of driving of the semi-trailer which caused Mr Westbrook to have any concern. He maintained a constant speed of about 95 km/hr. He was travelling in a 110 km/hr zone. He refrained from driving faster due to the tendency of his car to vibrate at higher speed. He behaved responsibly by dipping his head lights to low beam to avoid embarrassment to the driver of the semi-trailer. In those circumstances I do not believe he can be criticised for his decision not to overtake the semi trailer.
I also have some difficulty in accepting that it was negligent for him to be travelling in the position he described as opposed to dropping back to a distance of possibly 500 metres to the rear of the semi trailer in order to have his lights on high beam. I think many drivers travelling on country roads at night would prefer to adopt a position such as that of Mr Westbrook rather than staying back a greater distance in order to use the high beam. Although a high beam would create a greater throw of light to the left and the right of the road the use of a preceding vehicle as a guide on an undulating country road could be equally beneficial to a prudent driver. I do not think therefore that it can be said to be negligent to travel in that position. Nor do I think that Mr Westbrook can be criticised for travelling at about 95 km/h. It was approximately 15 km/hr under the limit on that stretch of road which would seem to be a reasonable speed in that area. In any event, I also agree with Mr Steele’s submission that even if he had travelled further back with his lights on high beam, there would not necessarily have been sufficient time to take appropriate evasive action. There is no evidence as to the direction from which the cow entered the road, but the inference to be drawn from the fact that the semi-trailer neither braked nor swerved, is that the cow was not on the carriageway as it passed. It must therefore have entered the carriageway at some time after the semi trailer passed. The lapse of time between the semi-trailer passing the point of impact and Mr Westbrook’s car reaching that point, must have been very short. I do not think, in those circumstances, there would have been sufficient opportunity for Mr Westbrook to avoid the collision.
In my opinion, the appeal should be allowed and the finding of negligence against Mr Westbrook set aside. For the reasons expressed, I would also dismiss the notice of alternative contention.
On the hearing of the cross-appeal Mr Soulio submitted that the fact of the gate on the property being lower than the fence was an insufficient basis for a finding of negligence against the farmer. He pointed out that Mr Eckert was an experienced farmer who was aware of the problems associated with weaning calves. In the period prior to the accident he had weaned calves on the property in a similar way. Mr Eckert described Friesians as strong willed. This cow, however, had not previously demonstrated any propensity to jump fences. Animals that consistently jump are identified and removed. It appeared that most cattle would get through any fence if they were so determined to do so and a cow of this type, if it wished, could jump a four feet fence without any trouble. In this case, the internal fencing between the paddocks where the cows were contained as opposed to the calves was lower than the gate or the fence surrounding the external perimeter. This was the route which Mr Eckert considered to be the more likely one for a cow to adopt if it wished to return to the cattle yards. On that basis this cow appeared to be heading in the wrong direction.
The finding of the trial judge that the respondents were negligent was primarily based on the evidence of Mr Botting, a farm management consultant. He described the problems which arise with respect to the weaning of cows. He said that most experienced farmers would recognise that weaning was a time when there was a danger of animals escaping from their fences because their sole motivation was to reunite with each other. He said it was good management practice to ensure that the fences and gates of the paddock were of a certain standard. He described most fences as being constructed in the range of three feet eight to four feet, but conceded that a Friesian/Hereford cross could jump four feet if it was so minded. His real criticism, however, appeared to be that the fact that the gate was considerably lower than the fence. He said the expected behaviour of animals was to gravitate to a low point, particularly “when it is in the corner of a paddock, because the cow would hesitate in the corner of a paddock; when she is looking for a way out there is an invitation right in front of her eyes”. The judge relied on Mr Botting’s evidence in finding that the fact that the gate was lower than the fence was “an invitation to the cow to jump”. There was also evidence that the particular gate was damaged, which indicated that the cow had in fact escaped by that route. Mr Eckert attended the property the next day and arranged to string a line of barbed wire from the fence to the other side of the gate to make the gate and the fence a consistent height. This was found by the judge to be the appropriate measure to overcome the problem of the gate.
The judge found that the gate in this case was inadequate as it was too low and that should have been reasonably foreseen by the respondents. There was evidence before the court which supported the finding. In my opinion, the cross-appeal should be dismissed.
The order of the District Court judge should be set aside, and in lieu thereof there should be an order that the second and third respondents should bear 100% responsibility for the accident.

Doyle CJ

For the reasons given by Nyland J, I would allow the appeal by Clive Anthony Westbrook, and set aside the judgment of the District Court dated 20 February 1998 in favour of the plaintiff and against him. I would dismiss the cross-appeal by Alan Eckert and Alan Eckert Nominees Pty Ltd against the judgment in favour of the plaintiff against each of them.

Millhouse J

I agree with the reasons of Nyland J.

[1998] SASC 6916

20 October 1998