WAYMAN v DAVIES and ANOR [1998] NSWCA 255

WAYMAN v DAVIES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER JJA and FITZGERALD AJA 3 August 1998, 12 August 1998 [1998] NSWCA 255

NEGLIGENCE — HORSE ON HIGHWAY — WHETHER EITHER OF ADJOINING PROPERTY OWNER OR OWNER OF HORSE LIABLE

NEGLIGENCE — HORSE ON HIGHWAY — WHETHER EITHER OF ADJOINING PROPERTY OWNER OR OWNER OF HORSE LIABLE — appellant injured when his semi trailer overturned after he tried to avoid a horse on highway running through first respondent's property — horse belonged to second respondent — not more than once or twice a year the first respondent discovered on his land horses of second respondent — each time they were quickly removed — notices on highway warning of stock and that road unfenced — both respondents successful at the trial.

Held:

1. Once the facts were established that the first respondent did not want the second respondent's horses on his property, and further if they did stray were removed immediately, none of the heads of negligence alleged against the first respondent could succeed;

2. however, if it should be held that a duty arose, the first respondent's actions were adequate in that in light of warning notices on highway there was no duty for him to do anything further;

3. in regard to the second respondent in view of the infrequency with which his horses got on to the first respondent's land and the other factors relevant to deciding what was a reasonable response to the foreseeable risk that his horses might be a hazard to motorists if they escaped to the unfenced section of property near the highway, and although the result may differ in other parts of New South Wales, Newman J's conclusion on the particular facts that the second respondent's actions did not amount to a breach of his duty to act reasonably; Wyong Shire Council v Shirt, should not be disturbed.