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: (1) the trial judge erred in determining that the appellant was liable for the broken fence because there was no breach of a duty of care; or alternatively that (2) the appellant's failure to take any action, such as to make adequate inquiry as to the state of the fencing or the security of the horses during the flood, was not causative of the respondent's damage; and (3) the first respondent, through his agent, the driver of the vehicle, was contributorily negligent by failing to drive with the high beam lights illuminated. HELD, dismissing the appeal: (1) A property owner with a property beside a busy highway is under an obligation to take reasonable care to prevent the escape of animals on to the highway where they can cause damage to passing vehicles. Leaving the fencing in the hands of a non-expert fence does not satisfy the duty to ensure that reasonable care is taken. Gregory's (Properties) Pty Ltd v Muir (1993) 17 MVR 86; Brown v Toohey (1994) 35 NSWLR 417; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 considered. (2) The appellant, who was responsible for his own property and had control over it, had a non-delegable duty of we to users of the highway, who had no control over nor any knowledge of the conditions of the fences. This duty required him to ensure that the fences were in a condition adequate to contain the horses on the property. Kondis v State Transport Authority (1984) 154 CLR 672; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 followed. (3) As the duty was non-delegable, it was not sufficient for the appellant to make inquiry of the second respondent as to the condition of the fencing. 2 UNREPORTED JUDGMENTS (4) Even if the appellant's duty was delegable, mere inquiry would not have been sufficient to satisfy his duty of care. The appellant was aware of the condition of the fencing prior to the flooding and should have been aware that the flooding would create an extra hazard and potentially weaken the fencing. In these circumstances, his duty was to ensure that reasonable care was taken to prevent the horses' escape on to the highway. (5) In the circumstances of the case, the appellant did not establish that the first respondent was contributorily negligent, as there was no evidence to establish, ever directly or by inference, that the driver of the vehicle, even if he had been driving with the lights on high beam, would have seen the horses in sufficient time to avoid colliding with them. Mason P I agree with Beazley JA. Handley JA I agree with Beazley JA. Beazley JA On 24 May 1995 his Honour Judge Bell gave judgment in the District Court in Dubbo in favour of the first respondent against the appellants and second respondent. Pursuant to his Honour's judgment, damages were agreed in the sum of $72, 293.21, inclusive of interest. The appellant's appeal against the finding of liability made against them. Quantum is not in issue in this appeal. The first respondent (Blanch), as plaintiff brought an action for damage caused to his truck as a result of a collision with two horses at approximately 12.30am on 7 August 1990 on the Newell Highway, just north of Dubbo. The appellants (whom I shall refer to as Simpson) were the owner of land on which the horses were kept. The evidence established that the horses escaped from Simpson's land onto the land of the third respondent (Sanane Pty Ltd) and thence onto the Newell Highway. The Newell Highway bounded Simpson's land on its western side. The horses were under the care and control of the second respondent (Carroll). The land immediately to the north of Simpson's land was owned by Sanane Pty Ltd. Mr Biles kept horses on a portion of Sanane's land. The western boundary of Sanane's land also abutted the Newell Highway immediately adjacent to and north of Simpson's land. There is reference in the transcript to Harnett Homes Pty Ltd and Mr Wherrett. Immediately north of and adjacent to Sanane's land was land owned by Harnett Homes Pty Ltd. Its western boundary abutted the Newell Highway immediately north of and adjacent to Sanane's land. In early August 1990, the district was subject to torrential rain and on 3 August, the banks of the Macquarie River broke, flooding the surrounding countryside. The flood was described as "the worst flood in the area since the Burrendong Dam was built in the 1950s". Between 3 - 6 August the whole of the land of Sanane's, Harnett Homes Pty Ltd and a substantial proportion of that of Simpson's was flooded to a depth of several feet. The Newell Highway adjacent to these three properties was also flooded. The road was closed over that period. The accident occurred when a Mr Anderson was driving Blanch's prime mover at the speed limit of 80 kilometres per hour, in a southerly direction along the Hume Highway in an unbuilt up area. His lights were on low beam. Anderson first saw the horses when they were 30 metres away. He collided with them in the middle of the road. At the time of the collision his truck was straddling the centre of the road (that is, it was partially on its incorrect side). The accident resulted in the death of both horses and substantial property damage to Blanch's vehicle. Issues on the Appeal Three issues arose on the appeal. First, it was submitted that his Honour erred in determining that the appellant was liable for the broken fence because there was no breach of a duty of care. Alternatively, it was submitted that the URJ SIMPSON and ANOR v BLANCH and ORS (Beazley JA) 3 appellant's failure to take any action, such as to make adequate inquiry as to the state of the fencing or the security of Carroll's horses during the flood, was not causative of the respondent's damage. Finally, it was submitted that the respondent, through his agent Anderson, the driver of the vehicle, was contributorily negligent. Breach of Duty Senior counsel for Simpson conceded that Simpson owed a duty of care to users of the highway. He submitted, however, that having engaged Carroll, "an expert in fencing", he had fulfilled his duty of care. An examination of the evidence reveals this submission was an overstatement of Carroll's expertise. Carroll was a sales representative for Coca Cola. He also trained trotting horses, which he had been doing for 12 - 13 years. Over the years, he had agisted his horses on various properties around the district. Approximately five months before the accident, Simpson agreed to allow Carroll to keep his 5 trotting horses on his land. The arrangement was gratuitous. The trial judge found the agreement involved Carroll taking "responsibility for the horses and the fencing". The fencing on the property was, at the time the arrangement was entered into, "of great age and dilapidation" and was well below the desirable standard even for normal times, although in such times it could be got "away with'. Carroll carried out "some rather makeshift repairs" on the fence. Prior to doing the repairs, horses from a neighbouring property had been wandering onto Simpson's land. Simpson's property and those surrounding it became flooded on 3 August 1990 when the Macquarie River broke its banks. The following day, Biles' 4 horses were located on the dry eastern corner of Simpson's block, where Carroll's horses were also located. Biles' horses had got through a hole in the fence between the two blocks, although it was not established how the hole came to be there. It could have been caused by the flood, by the horses or by someone seeking to let the horses through onto the high dry land. Later that day Carroll opened a panel of fencing to allow the 9 horses to travel between the eastern end of Sanane's and the high part of Simpson's land. Carroll checked the horses on Sunday, 5 August 1990. They were in the same area - that is, on Simpson's high land and the eastern end of Sanane's. The flooding at this stage had peaked, although the water level was still high. On Monday, 6 August 1990 Carroll fount all the horses further to the north, on Wherrett's land. They were quite stirred up. Carroll caught three of his horses and put them back on Simpson's land. He was unable to catch the other two. The trial judge did not make any specific finding as to whether having put the horses back onto Simpson's land, he repaired the fence. He found however, that the fences around Sanane's land were down, so that if the horses escaped again from Simpson's, they would not have been contained on Sanane's Land. His Honour found that Carroll's horses escaped "on the Monday night, either through a hole or a weak spot in the fence between Simpson 's and Sanane 's. That was either a pre existing hole that had been inadequately repaired or a section affected by the flood that had not been repaired at all". Before passing to the principles of law which govern this case, it is necessary to refer to the basis upon which Simpson "opened his case" to the court, namely that he engaged a specialist fencing expert, Mr Carroll, to be responsible for repairs to the fencing. No such case was made out on the evidence. Senior counsel for Simpson eventually conceded as much. The only evidence as to 4 UNREPORTED JUDGMENTS Carroll's experience and expertise was that he had done minor fencing repairs on another property. There was no evidence Simpson knew this to be the case. The basis, therefore, upon which Simpson's liability must be determined is that he allowed Carroll to run horses on his land; Simpson was aware of the condition of the fence and that the fencing on the land was inadequate under normal conditions. No challenge was made to the trial judge's finding that the escape of the horses onto the highway was foreseeable. It was conceded that Simpson owed a duty of care to users of the highway in such circumstances. It was also conceded that Simpson could not "totally delegate responsibility". It was submitted however that "it was an exercise of reasonable skill and care on [Simpson's] part to have Carroll take care of two of the three events that were causes of this accident - the fences and the horses The third component was the flooding [for which he had no responsibility]". In Gregory's (Properties) Pty Ltd v Muir (1993) 17 MVR 86 this Court examined the legal liability for the escape of animals onto the highway. The Court at 88-89 stated a number of propositions concerning the liability of an owner of property adjacent to the highway. It is convenient to set them out in full: "1. The onus of establishing negligence on the part of the alleged tortfeasor rests upon the party claiming to recover damages; 2. The mere fact of a collision on a public road with an animal which has apparently escaped from an adjacent property win not, without more, establish negligence in the owner of that property... March v E & M H Stramare Pty Ltd (1991) 65 ALJR 334... 3. In judging the reasonableness of the conduct of the owner whose property adjoins a highway it will be relevant to take into account: (a) the conformity of the fencing provided with the long established practice of the industry. See eg General Cleaning Contractors Pty Ltd v Christmas [1953] AC 180 at 190 (HL); (b) the nature of the stock held on the property and any known propensities of that stock. See eg Le Poidevin Industries Pty Ltd v Trimboli noted [1991] Aust Torts Rep 12-951 SA(SC); ant (c) the type of road which passes by the property and the amount of traffic carried on that road which would be endangered by the escape on to it from nearby property of a straying animal. See Le Poidevin (loc cit); and 4. The standard of care which the law enforces is not an absolute one. It is that which may be expected of the reasonable person... Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47." The Court concluded at 93 that a property owner with a property beside a busy highway was under an "obligation to take reasonable care to prevent the escape of its animals on to the highway where they can cause damage... [to passing vehicles]." In Brown v Toohey (1994) 35 NSWLR 417 Mahoney JA (Priestley JA agreeing) stated at 424: "Not every landowner has a duty to fence his land against the escape of his stock onto the highway. Notwithstanding that the escape of stock from land to highway will always involve a measure of risk, in some cases that risk is of such dimensions that it must be accepted by those who travel highways. The duty of a landowner in the centre of Australia will be different from one near Blayney." URJ SIMPSON and ANOR v BLANCH and ORS (Beazley JA) 5 In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, the court considered the circumstances in which there will be a non-delegable duty of care, and the scope of that duty. Dealing with the latter first, Mason CJ, Deane, Dawson Toohey and Gaudron JJ stated at 550: "Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken. One of the classic statements of the scope of such a duty of care remains that of Lord Blackburn in Hughes v Percival (1883) 8 App Cas 443 at 446: "that duty went as far as to require [the defendant] to see that reasonable skill and care were exercised in those operations... If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself... but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled." " If Simpson's duty of care was non-delegable, it could not have been satisfied in the manner submitted by senior counsel for the appellant. Simply leaving care of the fencing in the hands of a non-expert fencer, part time horse trainer hardly satisfies the duty to ensure reasonable care is taken. Was then Simpson's duty of care non-delegable? Counsel's concession that the duty was not "totally non-delegable" is hardly a concession. A duty of care is either delegable or non-delegable. However, even a non-delegable duty of cue does not require personal performance. As Lord Blackburn said in Hughes v Percival, the person owing the duty of care may employ a third person to fulfil the duty - but the duty of care remains. If the duty is breached by negligent performance by the third party, the person owing the duty of care is liable for the breach. The circumstances in which a non-delegable duty of care is owed was examined by Mason J (Deane and Dawson n agreeing) in Kondis v State Transport Authority (1984) 154 CLR 672. His Honour stated at 687: ".. [W]hen we look to the classes of case in which the existence of a non-delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. As I said in Introvigne (1982) 150 CLR at p271 "the law has, for various reasons imposed a special duty on persons in certain situations to take particular precautions for the safety of others'. That statement should be expanded by adding a reference to safeguarding or protecting the property of other persons, a matter which did not present itself for consideration in Intravigne." In Burnie Port Authority, their Honours in the joint judgment at 550 - 551 identified the common elements in the categories of case where a non-delegable duty of care arose: "Tn most, though conceivably not all, of such categories of case, the common "element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken" is that 'the person on whom [the duty is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for kits or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised". It will be convenient to refer to that common element as "the central element of control'. Viewed from the perspective of the person to whom the duty is owed, 6 UNREPORTED JUDGMENTS the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person. Examining the matter from the perspective of Blanch/Anderson, as users of the highway, they were in a vulnerable position vis-a-vis Simpson. They had no control over nor any knowledge of the conditions of the fences. On the other hand, Simpson was responsible for his own property. He had control over it. In my opinion, he had, therefore, a non-delegable duty of care to the users of the highway. That required him to ensure that the fences were in a condition adequate to contain the horses on the property. The existence of a non-delegable duty of care answers the second basis upon which Simpson challenged the finding of liability. The duty being non-delegable, it would not have been sufficient for him to have made an inquiry of Carroll. Even if I am wrong, and the duty was delegable, I am of the opinion that, in the circumstances of this case, mere inquiry would not have been sufficient to satisfy his duty of care. Simpson was aware of the condition of the fence on his property prior to the flooding. He should have been aware that the flooding would create an extra hazard and potentially weaken the already decrepit fencing. In the circumstances, his duty was similar, if not identical, to the non-delegable duty which I have found to exist. He had a duty to ensure that reasonable care was taken to prevent the horses' escape onto the highway. Accordingly, I would uphold the trial judge's determination of liability. Contributory Negligence Simpson submitted alternatively that Anderson, the driver of Blanch's vehicle, was contributorily negligent. The submission was put shortly. Anderson should have been driving with the high beam lights on the trailer illuminated. The accident occurred in the early hours of the morning. It was dark. Anderson was travelling at the speed limit which was 80 kilometres per hour. Anderson stated that although there were no houses in the vicinity - there were only fields and a few light industrial sites - he considered it to be a built up area and thus he did not, and still would not, use high beam. There was no street lighting in the immediate vicinity, although Anderson said he could see the street lighting in Dubbo. It appears that the street lighting commenced about 400 metres further on, at which point the speed limit dropped to 60 kilometres per hour. The highway at this point was two lanes wide, one in each direction, with a shoulder on each side, slightly less than a metre wide. The road had just opened after the flood. Anderson did not see the horses until they were approximately 30 metres away. They came from his right hand side. Anderson said he could have stopped the vehicle within 30 metres. He also said he did not pull off to the side of the road because it was muddy and tht might not have proved a safe escape route. It was submitted, however, that had he been using high beam, he would have sighted the horses much earlier, and therefore have been in a position to stop and to avoid the collision. The difficulty with this submission is that there was no evidence as to the direction from which the horses came, other than from the right hand side, or the point from where they started. They could have been galloping across the paddock in a straight line so as to have been picked up by the high beam. They may have been stationary near the roadway and may have been spooked by the lights or sound of the truck and unexpectedly galloped across the road. Even if they were galloping diagonally across the paddock in the direction of the truck URJ SIMPSON and ANOR v BLANCH and ORS (Beazley JA) 7 there is no evidence to establish, either directly or by inference, that Anderson would have seen them in sufficient time to avoid colliding with them. In the circumstances the appellant has not established that Anderson was contributorily negligent. The appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: D Higgs SC/G Waugh Counsel for the respondent: D Brogan Solicitors for the appellant: Booth Brown Samuels & Olney Solicitors for the respondent: R J Nolan & Co