WORTH v WILLOWS [1996] NSWCA 565

WORTH v WILLOWS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE, HANDLEY and COLE JJA 23 September 1996

[1996] NSWCA 565

ANIMALS — horse escaping from land adjoining busy highway — duty of care — negligence.

NEGLIGENCE — liability — foreseeability of risk.

A horse escaped from an enclosure next to the Pacific Hwy near Taree and collided with a van causing the appellant injuries for which she sued. The trial Judge held that the respondents had acted reasonably to prevent foreseeable injury to users of the highway. The respondents had been asked to care for the horse and upon advice it was kept in a well grassed enclosure with an electric fence. The trial Judge found that the horse, which was docile and not in good condition, had escaped under the wire in a manner that was not reasonably foreseeable and there had been no negligence. The appellant challenged this finding.

HELD, dismissing the appeal: Having regard to the care taken, the docility of the horse, the failure to cross-examine one of the respondents on a critical issue, and the absence of any indication that the horse was minded to escape, there was no basis for disturbing the Judge's finding that the horse's escape was not reasonably foreseeable.

Handley JA. This is an appeal by an unsuccessful plaintiff from a decision of Judge Nash. The case involved a horse which escaped from private property onto the Pacific Hwy near Taree causing a motor vehicle accident in which the plaintiff was seriously injured. The horse escaped from a paddock which formed part of a 5 acre property adjoining the highway which was leased by the second respondent and occupied by the first respondent, Mr and Mrs Willows, for the purposes of their employment as managers of the second respondent's service station conducted on the site.

The accident occurred at 4.40 am on 16 February 1990 when a van driven by the plaintiffs husband in which she was a passenger collided with the horse on the highway, causing the plaintiff the injuries for which she sued. The horse came into the possession of Mr and Mrs Willows early in January that year. It was a small part-Arab filly about a year old, which was then in very poor condition.