Hall's Group Limited v Rowe - [2018] NZHC 2819

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2017-483-003

[2018] NZHC 2819

BETWEEN
HALL’S GROUP LIMITED

First Plaintiff

AND

P & T TRUCKING LIMITED

Second Plaintiff

AND

GAVIN ROWE AND GWEN ROWE

Defendants

Hearing: 30 April, 1, 2 and 3 May 2018

Appearances:

C J Shannon and A B Weal for the Plaintiffs

R M Flinn and A E Goodall for the Defendants

Judgment:

31 October 2018

JUDGMENT OF CLARK J

I direct delivery of this judgment at
3.00 pm on 31 October 2018

HALL’S GROUP LIMITED & P & T TRUCKING LIMITED v ROWE and ROWE [2018] NZHC 2819
[31 October 2018]

Introduction

[1] On the evening of Tuesday 22 April 2014 Kevin Robinson was driving a truck and trailer on State Highway 4 travelling south towards Raetihi. It was dark. Unknown to Mr Robinson black cattle had escaped their paddock and wandered onto the highway. Just as Mr Robinson took a call from his wife the cattle suddenly appeared on the road. Mr Robinson was unable to avoid them. The truck hit the animals then careered across the road. The truck and trailer overturned. Mr Robinson was unharmed but the truck and trailer sustained extensive damage.

[2] The plaintiffs sue to recover their losses. The plaintiffs say the defendants were negligent in the discharge of their duty to keep their stock contained. The defendants accept they owed a duty of care but deny it was breached. The defendants raise an affirmative defence. They say Mr Robinson contributed to the accident. He was speaking on his mobile phone, exceeding the speed limit and, having only one eye, was visually impaired.

The collision

[3] Mr Robinson has been driving trucks for approximately 40 years. In late 2013 Mr Robinson was contracted to Hall’s Group Ltd to drive part of an “ice cream run” between Auckland and Palmerston North. Mr Robinson would drive from Raetihi to Auckland to collect the goods then return to Raetihi where another driver would take over and continue on to Palmerston North.

[4] On the evening of 22 April 2014 Mr Robinson was completing his leg of the ice cream run. He was driving a truck and refrigerated trailer. The trailer was owned by Hall’s Group, the first plaintiff. The truck was owned by P & T Trucking Ltd, the second plaintiff. P & T Trucking was contracted to Hall’s Group to transport (mainly) refrigerated goods. Around 7.20 pm Mr Robinson’s wife telephoned and Mr Robinson took the call on his mobile phone. He had dimmed the truck’s lights as he could see an oncoming vehicle. Within moments of answering Mr Robinson collided with the cattle. Mr Robinson describes just holding on after the impact until the truck came to a stop with the cab on its side. Mr Robinson told his wife who was still on the phone

to call the police and a fire engine. Fortunately, the truck was a “long-nose” truck meaning the cab…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2819
Decision Date: 31 October 2018

CaseChat Overview and Summary

This case involved a claim by the plaintiffs, Hall’s Group Limited and P & T Trucking Limited, against the defendants, Gavin Rowe and Gwen Rowe, for damages resulting from an accident involving a truck and trailer owned by the plaintiffs and cattle owned by the defendants. The plaintiffs alleged that the defendants were negligent in failing to keep their cattle secured and that this negligence caused the accident. The defendants denied that they were negligent but admitted that they owed a duty of care to the plaintiffs. The defendants also raised an affirmative defence of contributory negligence, arguing that the driver of the truck, Kevin Robinson, was at fault for the accident. The court had to decide whether the defendants were negligent and, if so, whether the plaintiffs’ losses were contributed to by the driver’s alleged faults.

The court found that the defendants were negligent in failing to adequately secure their cattle. The evidence showed that the gates were not properly secured and that a simple strand of hotwire was used as the only means of securing the gateway, which was an unacceptable method according to fencing experts. The court also found that the defendants had not established their claim of contributory negligence. While the driver was speeding and using his mobile phone at the time of the accident, there was no evidence to suggest that these factors contributed to the accident. The court concluded that the defendants were liable for the plaintiffs’ losses and awarded damages accordingly.

In conclusion, the court found that the defendants were negligent in failing to secure their cattle and that this negligence caused the accident. The defendants’ claim of contributory negligence was not established, and the plaintiffs were awarded damages in the amount of $273,256.32, plus interest. The court will hear submissions on costs from the parties.

Orders