A truck driver driving a truck and trailer on a dark night collides with black cattle that had escaped their paddock and wandered onto the highway. The truck hits the animals, careers across the road and the truck and trailer overturns. A crane is needed to right the truck and trailer. Extensive repairs to the truck and trailer cost $273,256.32. The cattle have strayed 400 metres from their paddock, down a small slope, across a narrow river bed, through a double gate way and down a drive way to get to the highway where the crash occurs.
Who bears the cost of the truck repairs?
The trucking company sues the farmer whose stock had escaped. To succeed the trucking company must prove on the balance of probabilities that the farmer was negligent – that the farmer failed to ensure the cattle were adequately fenced off and secured. The trucking company must also prove the farmer’s negligence caused the loss.
Section 5 of the Animals Law Reform Act 1989 provides that, in determining a person’s liability for negligence for damage caused by an animal straying onto the highway, consideration must be given to:
- The common practice in the locality in relation to fencing and the taking of measures to prevent animals from straying; and
- Measures taken to warn users of the highway of the likely presence of animals.
Extensive evidence was given when the court heard this case including expert evidence by a fencing contractor about common practice in the area and whether the farmer’s gates and fencing conformed to common practice in the locality. Expert evidence was also given by an Associate Professor and a local farmer as to whether the cattle could have jumped the fence.
After a detailed consideration of the evidence the judge found the cattle had been secured in their paddock by a single strand of hot wire across the gate way and the trucking company had proved on the balance of probabilities that the farmer had breached their duty of care and had not adequately secured the cattle to prevent them from wandering onto the road.
The judge then considered the farmer’s claim that the negligence of the trucking company had contributed to the damage. Under the Contributory Negligence Act 1947 the judge could place some responsibility for the damage onto the trucking company if it had been negligent. The farmer claimed the trucking company was negligent because the driver had sight in only one eye, he was illegally using his mobile phone at the time of the crash and he was speeding.
The judge did not accept these factors contributed to the damage. The truck driver was complying with the terms of his licence and there was no evidence to show the excess speed or the use of the mobile phone made any difference to the outcome. The farmer was therefore ordered to pay the cost of the repairs.
Insurance companies fight it out
Although the case is between the trucking company and the farmer, the trucking company’s insurance company would have brought the claim and the farmer’s insurance company would have been defending the claim under the farmer’s public liability policy. In the end it’s the public liability insurance that bears the cost – a salutary lesson that those insurance premiums can be worth paying.
Please email me at [email protected] with your ideas for future articles. Keep an eye out for next month's column, where I will discuss another relevant rural legal issue.
Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.
