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. Mr and Mrs Willows were asked to take it and look after it. Although they did not want to keep the horse, and had no commercial or other interest in horses until that time, they felt sorry for it and agreed to care for it on their property until agistment could be found for it elsewhere. They tried to arrange for agistment elsewhere but had not succeeded in doing so prior to the accident. Because the horse was in bad condition and very docile they held it temporarily in a small enclosure behind the service station building in which they normally kept their dog and went to Kew Produce Store for advice as to how they should keep the horse properly confined on their property. They were advised by a sales assistant that they should purchase and erect an electric fence. Various types were explained to them and they bought one at a cost of about $200 and following instructions in the kit, they erected it on the north-western corner of 2 UNREPORTED JUDGMENTS their property using the old shed as one corner. The enclosed paddock was about 70 metres long and about 30 metres wide. The western and northern sides of the paddock were securely fenced against the main northern railway line to the west and a public school to the north. The eastern and southern sides of the paddock were formed by the electric fence. The Judge found that the electric current for the fence ran through a white tape about 1 cm wide, that the fence was about 750 mm above the ground and held in position by star picket steel posts about 6 metres apart. At all times the tape was electrified. The paddock was level although it sloped gently in one direction so that the electric fence was at a constant height above the ground. When the fence was constructed, there was lush kikuyu grass within the enclosure for the horse. The tape was about level with the top of the horse's legs or chest. It was successfully retained in this paddock from early January until the night on which the accident occurred. When the horse was first placed in the paddock and the current switched on, Mrs Willows took the horse to the fence using a halter for this purpose and pushed its nose against the tape on two or three occasions, giving the horse an electric shock. On each occasion the horse jerked its head away from the fence. The Judge found that the horse would be expected to remember this and keep away from the fence. He also accepted Mrs Willows' evidence that the horse grazed in the middle of the enclosure and was not seen to do anything which might be taken as an attempt to escape. In addition to the lush grass available within the paddock, Mrs Willows hand-fed the horse each day with supplementary rations. The Judge found that although the grass was eaten and worn down to some extent in the middle of the enclosure, there was ample grass feed until the horse escaped, and although it had improved it was still not in good condition. Mrs Willows and Constable Scarr inspected the fencing of the paddock after the accident and found the electric fence intact and undamaged. The horse had obviously escaped but there was nothing to indicate how it had done so. The plaintiff sued Mr and Mrs Willows, the first respondent, as the occupiers of the property and the second respondent as their employer and also as occupier. Liability depended on proof of negligence. The trial Judge held that the mere fact that a collision occurs on a public highway with an animal which has apparently escaped from an adjacent property does not without more establish negligence on the part of the owner or occupier of that property or the owner or carer of that animal. This conclusion was not challenged. Proof of negligence in a case such as this requires the Court to determine whether or not the defendants as carers of the animal, and occupiers of the property adjoining a major road such as the Pacific Hwy, acted reasonably to prevent foreseeable injury to users of the highway as a result of the animal escaping onto the highway. This requires the Court to consider the nature and known propensity of the animal and the quality of the fencing or other means of restraint and whether it met the usual standards of fencing in that area, assuming of course that those standards were themselves reasonable. Expert evidence as to the nature and propensity of Arab horses was given by a Mr McCarthy who was called for the plaintiff, and he also gave evidence about the type of fencing required to keep a horse such as this safely confined. Prior to arriving in Court Mr McCarthy believed that the horse had escaped either by jumping the fence or breaking through it but it became clear that neither had occurred. The trial Judge inferred that the horse was lying down close to the URJ WORTH v WILLOWS (Cole JA) 3 fence and received a shock when it attempted to stand. It moved forward whilst still not fully upright and in doing so passed outside the enclosure. Although Mr McCarthy gave evidence that an Arab filly of the age of this horse is a highly strung animal, this horse was only a part-Arab and was still not in good condition at the date of the accident. Mrs Willows, whose evidence in this respect was not challenged in cross-examination, said that the horse was very quiet and docile and that she never really saw the horse jump around or kick her heels or do anything like that. She also said, and the Judge accepted, that the horse had kept to the middle of the paddock and had demonstrated no propensity to stray. Because of the abundance of good feed in the paddock, there was no incentive for the horse to do so. There was therefore nothing in the behaviour of this horse to put Mr and Mrs Willows on guard or to indicate that additional cautions were required apart from the electric fence. The trial Judge found, bearing fully in mind the proximity of the property to the Pacific Hwy, that it was reasonable for Mr and Mrs Willows to seek and act on the advice they received from the shop assistant at Kew Produce Store. Mrs Willows also obtained advice from a friend of hers who had owned two horses for some time, one of which was a full Arab. Mr Morrissey for the appellant submitted that Mr and Mrs Willows did not act reasonably in seeking and acting on these sources of advice, but I have not been persuaded that the trial Judge erred in making those findings. Although Mr McCarthy criticised the adequacy of the electrical fence, many of his criticisms were misplaced because he was not fully aware of the relevant facts at the time. Many of his criticisms had no relevance either to this particular horse or to this particular paddock. A critical finding for present purposes was that the manner in which the horse did get out was extremely unusual, probably not foreseeable by even an experienced carer of horses, and certainly not by any of the defendants. As the Judge said: After all, in the course of his report before he gave oral. evidence, Mr McCarthy seemed to assume that the horse must have jumped the fence. He put forward the proposition that it got through under the fence only when it was realised that there was no damage to the fence. The ordinary person, and probably even an experienced carer of horses, would bear in mind the possibility more that a horse would jump the fence rather than get under it. In these circumstances the expense of constructing an enclosure of the most desirable kind as referred to in Mr McCarthy's evidence was not justified. Iam also satisfied that if anyone on behalf of the second defendant had inspected the horse and the enclosure, there would have been no reason for any of them to be other than satisfied it was adequately enclosed and most unlikely to get out. In my judgment, as Mr Morrissey recognised, that finding unless disturbed is fatal to the appeal. I can see no basis upon which this Court can interfere with this finding. It is particularly important that Mrs Willows was not cross-examined about her evidence relating to the docility of the horse, the absence of any indication that it was minded to escape, and she was not cross-examined to suggest that she should have foreseen that the horse would get out from under the fence in the manner that the Trial Judge found that it did. In these circumstances in my opinion the appeal fails and should be dismissed. Clarke JA. I agree. Cole JA. I also agree. 4 UNREPORTED JUDGMENTS Clarke JA. The appeal will be dismissed with costs. Appeal dismissed with costs.