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. Brown v Toohey (1994) Australian Torts Reports 61802 Wyong Shire Council v Shirt (1980) 146 CLR 40. Priestley JA On 9 December 1987 the appellant was injured when the semi trailer he was driving went off the Barrier Highway between Cobar and Wilcannia and overturned. In 1993 he began proceedings in the Supreme Court claiming that the accident had been caused by the negligence of the first respondent through whose property the Highway ran at the place of the accident and the second respondent whose property adjoined that of the first respondent. The trial judge, Newman J, found the two respondents not guilty of negligence and entered in favour of the respondents the judgment now appealed against. The appellant's case was that a horse owned by the second respondent had unexpectedly emerged from fairly high growing feed in a table drain on the southern side of the road, that there was water present in a particular excavation nearby (thus giving two reasons for the horse being there) and that in trying to avoid the horse, his send trailer ran off the road. 2 UNREPORTED JUDGMENTS The appellant particularised four heads of negligence against the first respondent: (a) that he permitted or allowed the second respondent to run horses on the first respondent's property proximate to the roadway and to endanger passing traffic; (b) that he failed to fence the sides of the roadway; (c) that he failed to erect warning signs to alert the appellant to the presence of the horse; (d) that he failed to force the removal of the horses immediately adjacent to the Highway. The heads particularised against the second respondent were: (a) that he allowed his horses to be and/or remain upon a position on the first respondent's property from which they could escape on to the roadway and endanger passing traffic; (b) that he failed to take any measures to remove the horses and/or prevent them from straying on to the roadway; and (c) that he failed to warn the appellant of the presence of the horse and/or likelihood that horses would be in the vicinity. Various factual matters were in issue at the trial and were decided by the trial judge in a way making it necessary for the appellant to accept them for the purposes of the appeal, which the appellant did, subject only to one aspect which I will need to deal with at a later stage. Subject to the fate of that argument either all or by far the greater part of the factual issues were concluded by the judge's views of the evidence of the three parties. The context in which the trial judge came to state his views was the conflict between the appellant and the respondents concerning the circumstances of the accident. There was no direct evidence of how the accident happened, apart from that of the appellant. There was no doubt that his vehicle overturned and he was injured at the time and place he alleged. However, the respondents contested the allegation that the accident had been caused by a horse and their evidence contradicted what the appellant said about high growing feed in the area of the accident and the presence of water in the particular excavation. They supported their different account of these latter two matters with evidence that the area was frequently arid and that the period before the accident had been dry. (This was a matter of some importance at the trial, because the respondents were contending there was no water on the first respondent's property south of the road and little feed in the table drain, where, on the appellant's case, the horse came from, and that it was unlikely any horse would have gone there.) In dealing with this part of the case the trial judge made the general statement that he was of the view that both respondents were honest witnesses and good observers. He added that he "found their evidence to be impressive" and accepted "the testimony of both without qualification". (He repeated this general opinion of the complete acceptability of their evidence in other parts of his reasons.) He went on to say that that did not mean that he rejected in toto the evidence of the appellant although he did find it very odd that he had not seen a horse on the left hand side of the road (which photographs showed was long, flat and straight) at a much earlier time. I gather this remark was directed to the possible issue of negligence and that the trial judge was indicating that even had he found negligence established against either respondent, he would have felt bound to find contributory negligence on the part of the appellant. He made this quite clear a little later when he said that although prepared to accept that it was the appellant's efforts to avoid a horse on the road which gave rise to the accident he did not accept that the horse had emerged from the table drain to the left (which was south) of the road in circumstances where the appellant's view was obscured; he also found that the appellant should have seen the horse earlier, had he been URJ WAYMAN v DAVIES (Priestley JA) 3 paying proper attention, and should have been able to take evasive action either by braking or diverting the vehicle or both, which could have avoided the vehicle leaving the road surface. Newman J made a number of particular findings flowing from his acceptance of the respondents. Also a number of other findings follow from his full acceptance of their evidence. The following statement of the relevant facts of the case consists of those specific findings and other facts necessarily although not explicitly accepted by him. 1. The appellant was driving west on the Barrier Highway from Cobar to Wilcannia late in the morning of 9 December 1987. 2. About thirty-five kilometres east of Wilcannia he suddenly saw a horse on the road and his efforts to avoid it gave rise to the accident. 3. The first respondent's property was on both sides of the road where the accident happened. 4. In the accident the appellant suffered significant injury. 5. The area of the first respondent's property, "Murtee", exceeds 200,000 acres. 6. The area of the second respondent's property "Goonalga" is about 76,000 acres. 7. The parts of the two properties through which the highway ran were not fenced. 8. There were prominent signs at the sides of this part of the roadway, saying "STOCK" or "STOCK 54km UNFENCED ROAD". 9. The first respondent had no horses on his property apart from some ponies used by his daughters kept in a home paddock from which they could not escape. 10. The second respondent had about 25 horses on his property at the relevant time. They were capable of jumping fences and moving about the country at speed. Those horses strayed at times on to the first respondent's property. 11. The first respondent conducted constant low level aerial surveillance of his land as well as frequent inspections by land, which allowed him to discover promptly any stray horses on his property. 12. Not more than once or twice a year, and in some years not at all, the first respondent discovered on his property horses belonging to the second respondent. When that happened he straightaway made contact with the second respondent, who then took immediate steps to remove his horses from his neighbour's land. 13. The first respondent did not want the second respondent's horses on his property because they interfered with his arrangements for watering his sheep. 14. On 9 December 1987: (a) the first respondent was unaware of the presence of any horses on his land which belonged to the second respondent or anybody else; (b) the second respondent did not know that any horse of his was on the first defendent's land. 15. On 11 January 1988 the second respondent sold all the horses on his property to Metro Meats, a South Australian firm, for slaughter. 16. The first respondent, who was the local controller of the State Emergency Services, became aware of the accident by a report to him in that capacity but did not hear that a horse was involved until some years later. 17. The second respondent did not become aware until April 1992 of any suggestion that a horse he owned or in his custody had anything to do with the accident. 18. The decision to sell his horses so soon after the accident was the result of circumstances having nothing to do either with the accident or risk of accident from horses straying on the highway. 19. The horses had been of no use or value to the second respondent for some time. He did not want to kill them on the property nor incur the expense of rounding them up and selling them for slaughter. 20. An accident to a vehicle transporting a number of horses on another road in the area had led to horses escaping on to another neighbour's property from which they came on to the second respondent's property. Those horses had to be rounded up and continued on their way to their original destination. 21. The second respondent took the opportunity of rounding 4 UNREPORTED JUDGMENTS up his own approximately twenty-five horses at the same time and sending them to Metro Meats for slaughter along with the recently recaptured horses. On the facts found by the trial judge the particularised head (a) of negligence against the first respondent necessarily failed. The only available inference from the facts accepted by the trial judge was that whenever the first respondent became aware of any of the second respondent's horses being on his property he immediately took action to have them returned to the second respondent's property. Head (b) (failure to fence) was in the course of the hearing expressly withdrawn. Head (c) (alleged failure to erect warning sign) was not dealt with by Newman J in terms, but it is plain from the tenor of his reasons that he considered the warning signs concerning stock and the absence of fences to have been sufficient in the circumstances and to have made it unnecessary for the first respondent to have taken further steps to warn. As to head (d) (failure to force the removal of the second respondent's horses) it seems clear the trial judge thought there was nothing in it. As the trial judge saw it, head (a) was the one upon which the appellant's case had ultimately depended against the first respondent. Upon its failure, the trial judge took the view that the appellant failed against the first respondent. At a later point in his reasons Newman J said that he found that on the day of the accident the first respondent was unaware of the presence of any horses on his land which belonged to the second respondent or anybody else. He then said that in those circumstances he was driven to the conclusion that the first respondent was not in breach of any duty he might have owed to the appellant or motorists in general to prevent stock whether horses or any other animal coming on to the highway from his land and that the appellant therefore must fail against the first respondent In this court, ground 1 of the notice of appeal was directed against the first respondent. It was that the judge had fallen into error in thinking that it followed from his finding that the first respondent did not know that the second respondent's horse was on his land on the day of the accident that the appellant must therefore fail against the first respondent. The submission continued that in expressing himself in this way the trial judge had made it clear that he had failed to address the obligation of the first respondent to consider the possibility that the second respondent's horses might get on to the first respondent's property adjacent to the road and there constitute a foreseeable source of danger to vehicles using the road. The court then asked counsel, on the assumption that he was right in his submission so far, what followed from it. The reply was, that in all the circumstances the first respondent should have foreseen the possibility of the second respondent's horses getting into dangerous closeness to the road and the equally foreseeable possibility of one or more of the horses crossing the road; that being foreseeable, it was submitted, it was the first respondent's duty to take such steps as were reasonable in the circumstances to prevent the risk arising; this not having been done, and the risk having become actual and having caused damage, the first respondent should be held liable for that damage. This submission was linked with what was raised in grounds 4 and 6 in the notice of appeal. Although these grounds were directed primarily at the second respondent, they were also said by the appellant's counsel to apply to the first respondent. It was submitted (ground 4) that the trial judge erred in law in placing URJ WAYMAN v DAVIES (Priestley JA) 5 undue reliance upon a passage from Brown v Toohey (1994) Australian Tort Reports 61802 at 61808-9 which he set out in his reasons. Brown was a case relating to damaged fencing, and one submission for the appellant here was that the case was of no particular relevance once the appellant had abandoned the head of negligence relating to the absence of fencing. Hence, it was submitted, the paragraph in Mahoney JA's reasons (the last paragraph in the passage set out by Newman J) which said: "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 the landowner in the centre of Australia will be different from one near Blayney." was directed to cases in which plaintiffs alleged negligence related to fencing. It was further submitted that the trial judge had erred in applying the paragraph too literally without sufficient consideration of the actual facts of the case before him. I do not think these submissions should be accepted. In my view what Newman J was doing in his reference to Brown was recognising, first, that the case, although a fencing case, was also one which had used the considerations described in Wyong Shire Council v Shirt (1980) 146 CLR 40, second, that those considerations had a wider application than merely to fencing cases and third, that the paragraph I have set out above was an appropriate generalisation. The quoted passage did not say that land owners in the centre of Australia had no duty to those who travel highways crossing their lands; the statement that the duty would be different, to my mind is a pointer to the necessity for a court to consider what duty, if any, arises in particular places at particular times by reference to the facts and circumstances which prevail at the particular place and time. This leads me to a third submission put pursuant to ground 4 which was that the trial judge had not given proper consideration to the relevant factors bearing upon the assessment of the duty of the neighbouring land owners in their part of New South Wales at the time of the accident. This is the same point as that raised under ground 6, and seems to me to be the real point to be considered by this court. However, although it was urged against both respondents, it seems to me only to have possibilities against the second respondent. So far as the first respondent is concerned, once the facts were found that he did not want the second respondent's horses on his property, kept careful watch to see, amongst other things, whether any of them got on to his property, and, when they did, immediately took steps to have them removed, there was no way in which head (a) of the case against the first respondent could succeed. Head (b) was abandoned. Head (c), in my opinion fails: the signs in the circumstances were adequate. Head (d) was briefly relied upon by the appellant's counsel in the appeal, but I do not think there is any force in it upon the trial judge's findings of fact. Thus, it followed from the trial judge's findings of fact that none of the heads of negligence alleged against the first respondent could succeed. It would seem to follow from this that the appellant must fail in the appeal in regard to the first respondent. However, assuming in the appellant's favour that he is entitled to have this court consider what I think is the real question that arises from grounds 4 and 6, whether upon consideration of the factors relevant to the existence or not of a duty upon the first respondent as an occupant of land through which the road ran, it should be held that a duty arose, it seems to me clear that since the first 6 UNREPORTED JUDGMENTS respondent had no horses on his property likely to cause problems on the road and always took steps to remove any of the second respondent's horses which might create such a risk on the infrequent occasions they got on to his property, and also knew of the warning signs in the area, no duty fell upon him to do anything further. As to the case against the second respondent, Newman J rejected the three heads particularised (see p2 above). He gave a number of reasons in respect of heads (a) and (b), but said nothing explicitly about head (c). However, in regard to head (c) I think it is relatively clear from his reasons taken as a whole that he considered the warning signs adequate in the circumstances, which is my own opinion. In regard to heads (a) and (b), Newman J first held that having regard to the ability of horses to jump fences and move about at speed, and taking into account the size of the second respondent's property, there were no measures he could reasonably take other than those he did, to contain the horses. Ground 2 of the notice of appeal asserted this conclusion did not follow from the premise. The argument and my reasons concerning this ground are subsumed in what I say about later grounds. He also said about head (a) that having regard to the evidence from both respondents, which he accepted, as to the infrequency with which horses entered the first respondent's property from the second respondent's property, the appellant's allegation that the second respondent allowed his horses to remain on the first respondent's property must fail. He supported this by saying there was no evidence that the second respondent knew that any horse of his was on the date of the accident on the first respondent's land. To this he added that having regard to the size of the two properties an allegation that the second respondent ought to have known that any horse of his had so strayed must also fail. It was submitted for the appellant that the foregoing considerations were not sufficient to dispose of the appellant's case at trial. In particular, the trial judge had not considered whether the second respondent should have disposed of the horses by shooting or by sale for slaughter (grounds 3 and 5). Although these solutions might be regarded as inhumane, the horses were of no economic use or value to the second respondent, as he himself agreed. It was also submitted that the way in which the trial judge had dealt with the facts numbered 15, 17, 18, 19, 20 and 21 (see p5 and p6 above) was faulty (this was also a ground 3 submission). The evidence which had led to those factual findings had emerged unexpectedly during the trial. At one point, the evidence that at that stage had got before the court encouraged the appellant to argue that the sale by the second respondent of his horses so soon after the accident was tantamount to admissions (a) that they had been known to the second respondent to be a source of danger and (b) that it was no problem or disadvantage to him to get rid of them - in fact he appeared to have received $3,303 upon their disposal. However, further evidence then obtained of the circumstances of the sale resulted in the findings in the numbered paragraphs referred to. In the trial judge's reasons after he had made his findings about the true situation, he said that "Accordingly, this part of the plaintiffs case must also fail". For the appellant it was submitted in this court that in making that statement the trial judge was saying that the whole appellant's case based on heads (a) and (b) must fail simply because there was no connection between the accident and the almost immediate sale of the horses. If that is the proper meaning of what the URJ WAYMAN v DAVIES (Priestley JA) 7 trial judge said, then the appellant's criticism would be justified. I am not at all sure that the trial judge's meaning was as contended for by the appellant. A little later, at the end of his reasons, the trial judge referred to being guided by what fell from Mahoney JA in Brown, and as I have indicated earlier, my view is that the trial judge was there referring to the question which must be posed in a range of negligence cases as explained in Wyong Shire Council (146 CIR at 47-48) namely what would a reasonable man have done by way of response to the risk. The trial judge seems to me in the final paragraph of his reasons to have been indicating in a summary way that he had considered that question and after taking into account the various matters he had mentioned throughout his reasons, his view was that no further response had been required of the second respondent than what he had done in the circumstances, which was, in the knowledge of the existence of the warning notices, the infrequency of the escape of his horses on to the first respondent's land and the general position about fencing in that part of New South Wales, to rely on being able to retrieve his horses quickly whenever they made their way on to the first respondent's land. Whichever understanding of the trial judge's reasons be adopted, the appellant still makes the submission in the appeal that upon a proper analysis of the factors relevant to a finding of negligence or no negligence in the case, this court should hold in favour of the appellant. This is essentially the point raised by ground 6 which I said earlier in discussing the appeal against the first respondent really only had possibilities against the second respondent. Ground 5 raised the same point, setting out the relevant factors in more detail, so far as they concerned the second respondent. The remaining grounds, 7 and 8, did not add anything to grounds 5 and 6. I will consider them all together. Speaking by reference to Wyong Shire Council and the undemanding test of foreseeability which has become established in modern times, there was in my opinion a foreseeable risk that the second respondent's horses might, if they escaped into the first respondent's property where, unfenced, it bounded the road, be a source of danger to vehicles using the road; the question then becomes what is a reasonable response to this risk. In this respect I mentioned above some of the principal factors as matters I inferred had been taken into account by Newman J. Important among those factors is the infrequency with which the second respondent's horses got on to the first respondent's land. In addition to what I have earlier said about this, it is material to record here that in dealing with one of the particular arguments in the case, the trial judge made a finding (not otherwise presently relevant) which he said he made "having regard to the evidence from both defendants, which I accept, as to the infrequency with which horses entered the first defendant's property from that of the second..." It seems to me that the extent of this infrequency was a material matter in doing the Wyong Shire Council exercise of determining the reasonable man's response to the risk. The infrequency matter is the one I mentioned on p2 above as the one instance of a factual issue being disputed in the appeal. The issue arises this way. Fact 12 (p5 above) is based on evidence from the first respondent which the judge said he completely accepted. The second respondent's evidence was a little vaguer, but to the effect that the occasions were fewer than indicated by the first respondent. 8 UNREPORTED JUDGMENTS On this topic, the appellant in his evidence in chief said that immediately before the accident he had seen a mob of fifteen to twenty horses off to his right, probably 100 to 150 metres off the road (that is, on the northern side of the road). He was then asked: "Q. Had you ever seen horses there before? A. Yes." Mr Allison gave evidence in the appellant's case. He had been a frequent user of the Barrier Highway between Wilcannia and Cobar from 1967 until 1984, and from then to 1987 not as frequently as in the previous years. The following is an extract from his in chief. "Q. During the 1980s, prior to 1987, had you ever observed horses or first of all, on the roadway between Cobar and Wilcannia, I am just talking about near the roadway? A. Thad observed horses in different positions but it was known because of my frequency of travelling that route, there was horses in the particular area where T hit the horse. Q. What did you observe about the amount of horses that you saw at that location as compared to other locations on the road? A. There were definitely more horses in that location and there had been for quite some time. We knew that the horses frequented that area or they were paddocked in that area. Q. When you saw horses, first of all how frequently would you see the horses? A. I saw them regularly but I wasn't always travelling in the dark or whatever. Sometimes they were on the road. Other times they were off the road" The first respondent was asked about this when he was being cross-examined: "Q. Were you present in Court when the evidence was given both by the plaintiff and Mr Allison concerning frequently seeing horses in the close vicinity of the highway where it runs through your property? A. I was. Q. You don 't dispute those observations, do you? A. No." Then, a little later still in cross-examination: "Q. You heard the evidence of Mr Allison of how frequently he saw horses down near the road? A. Yes. Q. You don't dispute that evidence, do you? A. No." The appellant acknowledged the acceptance by the trial judge of all the evidence given by the first and second respondents. This meant that as well as accepting their evidence of the infrequency of the second respondent's horses getting on to the first respondent's property, he also accepted what the appellant said were the first respondent's "concessions" in the above extracts from his cross-examination. It was then submitted that the trial judge had failed to reconcile what was said to be the inconsistent evidence of the appellant and Mr Allison on the one hand with that of the respondents on the other, in view of the "concession". It does not seem to me that what the first respondent said in the above quoted answers put him in any inconsistency with what he said in the parts of his evidence in which he was dealing directly with his own observations and knowledge of how frequently the second respondent's horses got on to the first respondent's property. If there were any problem, it would stem from the URJ WAYMAN v DAVIES (Fitzgerald AJA) 9 evidence of Mr Allison, not that of the appellant. Mr Allison's evidence was the result of about sixteen years regular use of the road and then four years less frequent use of it and was noticeably non specific about how often during those periods he saw horses in the relevant area. Neither of the respondents ever denied that the second respondent's horses did on occasion get on to the first respondent's property near the road. In the light of all the evidence in the case, Iread what the first respondent said in the quoted passages as acknowledging that the second respondent's horses did get down near the road from time to time. That is not inconsistent with his own relatively specific evidence that it happened at most once or twice a year and in some years not at all. I think it is proper to approach the Wyong Shire Council exercise of determining the reasonable man's response to the risk on the basis of fact 12 (p5 above). On that basis it seems to me that when all the factors relevant to deciding whether the second respondent was negligent in not shooting his horses or selling them for slaughter or otherwise taking some more positive step than he did to guard against the foreseeable risk from time to time created by his horses are considered, they point to the result arrived at by the judge: the infrequency of the horses getting on to the first respondent's land; the absence of any history of complaint from any person concerning their occasional presence there; the acceptance in that part of the country that large holdings of land need not be fenced from the road; the practice between the second and first respondents of immediate return of the horses when they strayed on to the first respondent's land, and the inconvenience (comparatively minor though it was) of rounding up the horses and shooting them or sending them away for slaughter, seem to me to support the conclusion that the second respondent by taking no more positive steps than he did was not in breach of his duty to act reasonably. The conclusion might be different in different parts of New South Wales on more or less the same facts; in time, the conclusion may be different in regard to properties on the Cobar/Wilcannia road; but in 1987, in my opinion, the second respondent was not guilty of negligence. In my opinion, the appeal should be dismissed with costs. Meagher JA I have read Priestley JA's judgment, and agree with it. The appellant's argument eventually embraced the proposition that it was the second defendant's duty to shoot all the horses on his property. In this event, no distinction could sensibly be drawn between his own domestic horses and wild brumbies. Nor would the duty be limited to horses. It would extend to cows, sheep, goats, wild boars, emus, kangaroos and camels. New South Wales would then be peppered with novel boutique abattoirs and animal auto-da-fés. Fitzgerald AJA I agree with Priestley JA. Appeal dismissed with costs. Counsel for the appellant: B Gross QC/ R Wilkins Solicitors for the appellant: Doyle Kingston & Swift Counsel for the first respondent: M W Robinson Solicitors for the first respondent: Buckworth Keady & Chalker Counsel for the second respondent: C O'Connor QC/ K Poulos 10 UNREPORTED JUDGMENTS Solicitors for the second respondent: Parish Patience