SIMPSON and ANOR v BLANCH and ORS [1997] NSWCA 287

SIMPSON and ANOR v BLANCH and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, HANDLEY and BEAZLEY JJA 6 November 1997, 17 December 1997 [1997] NSWCA 287

Negligence — Collision — Liability of property owner for escape of animals on public highway — Inadequate fencing — Duty of care — Whether duty to take reasonable care to prevent escape of animals delegable — Whether inquiry as to condition of fencing sufficient to satisfy duty.

This appeal arose out of an incident which occurred on 7 August 1990, when the first respondent's truck collided with two horses on the Newell Highway, just north of Dubbo at approximately 12.30am. The appellant was the owner of land on which the horses were kept. The horses were under the care and control of the second respondent, who was the owner of the horses. Approximately five months before the accident, the appellant had agreed to allow the second respondent to keep his horses on his land. Under the arrangement, which was gratuitous, the second respondent was to take responsibility for the horses and the fencing.

The appellant's and surrounding property was flooded on 3 August 1990. On 6 August, the second respondent found the horses on another property. The trial judge found that the horses had escaped through a hole or a weak spot in the fence that had been inadequately repaired, or a section of the fence affected by the flood which had not been repaired at all.

On the first respondent's action for damages, the appellant argued that he had engaged a specialist fencing expert, the second respondent, to be responsible for repairs to the fencing. The trial judge gave judgment in favour of the first respondent against the appellant and the second respondent. The appellant appealed against this finding of liability. Quantum was not in issue in the appeal. The appellant submitted tint: