STOCK ON ROADS

Greymouth Evening Star, 6 November 1931, Page 9

STOCK ON ROADS

ACCIDENTS AND LIABILITY. INTERESTING LEGAL OPINIONS The New Zealand Farmers’ Union recently received the following legal opinions from its , solicitors, Messrs Mazengarb, Hay and Macalister, Wellington, which will be of great interest to farmers, and others: — COLLISION WITH ANIMAL ON ROAD Question: What is the legal position of a man who runs into a beast on a public road? Can he claim damages from the owner of the beast for damages caused by the collision or can the owner of the beast claim compensation from the motorist for injury to his beast?

Opinion: The answer depends on a variety of circumstances which may or may not be present in any particular case. It is impossible to lay down a rule which will govern every set of facts, but some observations on the general position will no doubt, be of use to you. The general principle of the law is that the man who keeps an animal is responsible for mischief done by it, if such mischief *is natural to that soecies of animal, or if the owner knew that the individual animal had a tendency to do that kind of mischief. When the damage done is natural to the species of animal, the liability of the owner is wholly independent of any proof that he knew of this tendency, and it cannot be excluded even by proof that he believed on good grounds that no such tendency existed in the individual case. Where, on the othe.r hand, the damage is not natural to the species, affirmative proof is required that the owner actually knew of the mischievous tendency of the animal. Thus it is the natural tendency of cattle to stray or trespass and eat and tread down crops, and in such cases no proof of the owner’s knowledge of the mischievous tendency is required. On the other hand, it is not the natural tendency of dogs to bite human beings; therefore it is necessary for the plaintiff to prove that the defendant actually knew that the dog was dangerous and had departed from the peaceful habit of its species. (It should be noted that this common law rule regarding dogs has been replaced in New Zealand by a statutory provision making the owner liable in any event).

Whether any particular kind of mischief is natural or not to a particular species of animal is apparently a question of law. Thus it is a rule of law, and not a mere proposition of fact, that it is not natural for a dog to bite mankind. So it is not the natural tendency of sheep, cattle, or other domesticated animals to obstruct the traffic on a highway, their tendency being rather to avoid such traffic. It follows, as a general rule, that the owner of a motor car has no action against an owner whose sheep have strayed upon the highway and there obstructed and overturned his car. It has been laid down by the Court of Appeal in England that a landowner is under no duty to prevent his sheep, cattle or other domesticated animals from straying from his land into the highway, even though he may be liable to certain penalties for allowing his cattle to upon the highway (Heath’s Garage v. Hedges 1916 2 K.B. 370). If, therefore, they stray there and overturn a motorist or cyclist the injured party cannot sue the defendant for the consequential damage caused by the wrongful obstruction of the highway. The plaintiff, is driven to sue the defendant in his capacity as keeper of the animals, and in that capacity it is a good defence to him that the mischief was not natural to that species of animal' and that there was no proof of the defendant’s actual knowledge of the michievous tendency of the particular animal or animals. As already stated, it is a rule of law that a tendency to obstruct the traffic in a highway is not natural to such animals.

The foregoing general statement of the law must be read subject to the further general statement that the question of liability, whether on the part of the owner of the animal or of the member of the public who comes into collision with the animal, will depend on the existence of negligence on one side or the other. A reference to various decided cases will illustrate this statement. In the case of Paul v. Rowe (24 N.Z.L.R. 641) it was held by Mr. Justice Cooper that if a man turns a mob of horses into a public road, and allows them to proceed along that road without proper control or guidance, he is guilty of negligence, especially where the road is an inhabitated district, and is frequented by the public; and if, in consequence of this negligence, one of the public lawfully using the road sustains an injury, the person through whose negligent conduct the horses doing such injury have been allowed to pass along the road, is prima facie responsible for such injury. In that case it was pointed out in the judgment that the injury to the plaintiff (a cyclist) did not arise from the viciousness of the particular horse that collided with the cyclist, but from the careless and negligent manner in which the horses were used by the owner.

In the case of Allen v. Borough of St. Kilda (14 G.LR.663) a claim was made against the defendant Borough on the grounds that one of the Borough’s servants negligently drove certain horses and turned them out in to a public road without guidance or proper control, and that the plaintiff while’ walking along the street was kicked by one of the horses and seriously injured. The facts were that an employee of the Borough was in the habit of taking three horses from the stables to a paddock situate at some 130 yards from the stables, traversing a public street to do so. On the Sunday afternoon when the accident happened the employee let the horses out of the paddock to return them to the stables and followed them along the street. There was no traffic in the street at the time. The plaintiff was on the footpath walking towards the horses. One of the horses came to the footpath close by the plaintiff and immediately it had passed the plaintiff kicked out and hit him. There was no evidence to show that the horses were of vicious tendency. In these circumstances, Mr Justice'Williams held that the Borough was not liable. He 'stated the law as follows:—“The law | is clear enough that if a horse or other domestic animal is at large on a public road and kicks or injures a person who is lawfully on the road, the owner is not liable unless he knew the

animal to be vicious or mischievous or unless there are some further circumstances which impose a liability on the owner. Such circumstances do not exist in the present case. It is not an ordinary consequence of a horse being loose on the road that he should kick a man.” It should be noted in the foregoing case that a breach of the by-law was being committed by the employee of the Borough by 'driving the horses un-voked through the streets of the borough between eight in the morning and ten at night. In this connection Mr Justice Williams made the following observation : “No doubt there was a breach of this bylaw and a wrongful act was therefore committed by M., the servant of the Borough. Where, however, a wrongful act has been committed the person who commits it is responsible for the ordinary consequences which are likely to result from it, but not for damage which is not a natural or ordinary consequence of such an Act. The law is clearly stated by Bovill, C. J. in Sharp v. Powell, “Where there is no reason to expect it. and no knowledge in the person doing the wrongful act. that such state of things exists as to render the damage probable, if injury does result to a third person, it is generally considered that the wrongful act is not the proximate cause of the injury so as to render the wrongdoer liable for an action.” In the present case the state of things as they existed does not render the damage probable, but the contrary.”

Regarding the extract just quoted from the judgment under Mr Justice Williams, a difficulty arises in advising on the present state of the law dealing with the question of remoteness of damage. Until the recent decision of the English Court of Appeal in In Re Polemis and Furness Withy & Co. (1921 3K.8. 560), it was generally accepted that the principle of the law was that a wrongdoer was liable only for damage which was intended by him or which although not intended was the natural or probable consequence of his wrongful act. Applying this principle to the case of injury caused by an animal straying on the public highway, the position would be that even although the animal may have got on the highway through the wrongful act or default of its owner, there would be no casual connection between such negligence of the owner and the injury caused to a motorist who collided with the animal. It has, however, been laid down by the English Court of Appeal in the case quoted that the liability for damage as a result of negligence is much wider than the foregoing principle would allow, and that where negligence is proved, the wrong-doer is liable for all damages which are the direct consequences of the act, even though, antecedently, to a reasonable man the consequences that do follow seem neither natural nor probable. This decision has been the subject of much comment, its effect being so far reaching on the question of the extent of the liability for damage arising from negligent acts.

HORSES DRIVEN HOME It has been followed in New Zealand by Mr Justice Reed in the case of Barrett v. Hardie Thompson Ltd. (1924 G.L.R.291). In that case an action was brought by a motor cyclist who collided with three loose horses which were being driven through a street in Christchurch by or on behalf of the defendant. The horses were being driven by a man on a bicycle from a paddock for a distance of about a mile and a-half to the stables. The route was through several streets in Christchurch into Trafalgar Street where the accident occurred. This was a narrow street, about 30ft. at its widest point and narrowing to some 21 feet. The horses were being driven at a fast trot and had just traversed the narrow part of the. street, in question when they came into collision with the plaintiff. The time was about 6.15 in the morning. It had been the custom to drive them along this route for about ten years without any accident having happened. The horses were usually returned over the same route in the evening, but were then haltered and led as a precaution against the increased traffic at that time. It was contended on behalf of the defendant that even though there was evidence of negligence in driving the horses along the street in the \manner indicated, the damages that resulted were not a natural or probable consequence of such negligence, —in other words, that the damage was too remote from the negligence, as it could not reasonably have been foreseen as a consequence. Mr Justice Reed held however, that the older decisions were of little avail in the face of the abovementioned decision of the English Court of Appeal, as a result of which the question of remoteness of damage or natural or probable consequence did not arise as a substantive question. The jury having found that the defendant was negligent their finding could not be disturbed.

It is to be noted that in a recent Scotch case, Fraser v. Pate (1923 S.C. 748.) the new rule laid down in the Polemis case was not followed. There the facts were that a motor cyclist was injured by a collision in daylight with a sheep on a public road. He brought an action for damages against the farmer from whose tields it had strayed, alleging that the farmer was negligent in that he knowingly failed to keep his fences in such repair as would prevent his sheep from straying on to the road. The Court found against the plaintiff on the grounds that the accident was not a natural or probable result of the negligence alleged. The above mentioned Scottish decision approved and followed the judgment in Heaths Garage v. Hodges, one of the Judges stating the law as follows: “Stated generally, the law as to the owner’s responsibility for a domestic animal is the same in Scotland and in England, and in both countries there is a great body of authority to the effect that the owner is not liable on the ground of negligence for allowing such an animal to be at large unless he had reason to anticipate some vicious or dangerous or mischievous habit or propensity . . . .

The unfortunate accident which resulted in the injury of the pursuer must be regarded as one of the ordinary risks to which persons using the public road are exposed and which they must accept as one of the accidents for which no one can be blamed.” Another of the judges made the following statement: “The principle seems to be that in the case of sheep, which is an animal of mild and peaceful nature, the owner is not bound to anticipate, if it should stray on the highway, at any rale in daylight, that it will by obstruction or in any other way, bring about the downfall of a member of the public to his injury and loss, the reason being that that is not a natural

consequence of the sheep being upon the public road. Although the Polemis case has been followed in our Supreme Court as above stated, the decision is not binding in our Supreme Court of Appeal and in view of the revolutionary nature of the English Court of Appeal’s decision, it is quite possjble that our Court of Appeal would decline to follow it.

It will therefore be seen, that before advising on th" question of liability in any particular case, it is of the utmost importance to know the actual facts. Apart altogether from the presumption of law that it is not a natural tendency of the domesticated animal to interfere with traffic, there may be facts which would enable the Court to find that the accident was due, not to the actions of the animal itself, but to the negligence of its owner. As the law stands, the mere fact that the owner allows his beast to stray on the public road would not make him liable for damage occasioned to a member of the public by the action of the beast (assuming always that the beast had no known mischievous propensities), but one it is established that the animal strayed on the road owing to the negligence of its owner, it may be held in accordance with the principle laid down in the Polemis case that the damage caused by the animal c.g. to a motorist, would be referable to the original negligence on the part of the owner, and that he would be liable accordjngly. Looking at the matter from the other point of view, namely, whether the owner of the animal has any claim against the person colliding with it, thi would depend entirely on whether it could be established whethej; the injury done t« the animal was due solely to the negligence of the person colliding with it. OPINION NO. 2. Question:—ls there any law which allows a drover to put stock into a farmer’s paddock without permission? Opinion:—We are unaware of any law which allows a drover to put stock into a farmer’s paddock without permission. There is a provision in the Land Act 1924 /Section 290) givingJhe right to depasture travelling stock for not exceeding 24 hours, upon any unfenced and uncultivated pastoral lands within a quarter of a mile on either side of any road or track, commonly used as a thoroughfare, and not within one mile of a homestqad. There is also a provision in the Stock Act 1908 (Section 57) giving persons desirous of crossing any land with a flock of sheep, or drove of cattle or horses, a right to do so, subject to certain conditions as to giving prior notice etc., but any such right of passage must be along some recognised route, and a distance of at least five miles per day must be covered. Apart from the foregoing provisions, it would seem that no drover has the right to turn his stock on to the lands of any person unless with the consent of the owner or occupier. Furthermore, if a drover brought any diseased stock into contact with the stock of another person, he would not only be liable for the penalties provided by the Stock Act, 1908, but would be liable to a Civil action for damages at the suit of the party injured. OPINION NO. 3. Question:—A farmer lands stock by train at night, and lias to drive them home in the dark without a police permit owing to the distance from the nearest constable. In the event of the stock being run down by motor traffic, would the farmer be held liable for an accident, or j on the other hand would he have any claim if his stock be damaged? Opinion: —(1) As pointed out in our previous opinion, it is always difficult to lay down a general rule in these matters. The question of liability would depend upon the particular circumstances of the case, as the question of liability is largely one of fact depending on the proof of negligence on one side or the other.

(2) It is, however, possible to lay down some general rules which may be of assistance in satisfying the enquiry which has been made. It would be safe to say in the circumstances mentioned by your correspondent there would be no liability on the part of the farmer, assuming that the cattle or sheep were under proper charge and the droving was conducted under usual and proper conditions. (3) It has been expressly held in England (Catchpole v. Minster 1913, 109 L.T. 953) that there is no duty on the driver of a flock of sheep driven along the highway at night to carry a light and that the failure to do so is no evidence of negligence. This decision appears to establish the lact that according to the common law a drover of stock would not be guilty of negligence simply by carrying out his droving operations at night without lights, and that it would be necessary to show something further in the way of negligence on his part in order to make him or the owner of the stock answerable in damages to the person suffering damage through the presence of the stock on the highway. 1 (4) It therefore remains to be considered whether the legal position is altered by the provisions of Section 2 of the Stock Amendment Act, 1930, which makes it an offence punishable wjth a line not exceeding £5O for any person to drive, lead or convey any stock on any highway during the period between half an .hour after sunset and half an hour before sunrise, unless provided with a permit from a Justice of the Peace, or an Auctioneer, Postmaster or Constable or an Inspector under the Stock Act or the Slaughtering and Inspection Act 1908. There are certain exceptions to the said Section 2 as set out therein, but it is unnecessary to set out such exceptions here, as I am dealing with the matter on the assumption that the case with which I am dealing is one where the permit should be obtained. (5) It is of course obvious that the permit should be obtained in every case where it applies, and a breach of the law has been committed if the farmer takes the risk of driving stock during the hours of the night without obtaining it. In this connection the question naturally arises whether the farmer would not be aware beforehand of the intended arrival of the stock by train sons to give him the opportunity of procuring the permit. (6) The fact, however, that the farmer is compelled under certain circumstances to drive the stock without a permit does not dispose of the question of his liability, in a Civil action at the suit of a person who .may suffer injury through the presence of stock on the road. The liability of the farmer to a penalty under the provisions of the Stock Act and his liability in a Civil action are two distinct and separate matters. In our opinion the mere fact that the permit had not been obtained would have no bearing on the question of negligence which

would require to be proved in a Civil action in order to make the farmer liable. No doubt the fact that stock were driven at night would make the standard of care on the part of the person in charge higher than if the droving took place in daylight. But the question for determination in.a Civil action would be whether in view of all the circumstances the droving was being carried out in a negligent manner. (7). Dealing with the matter from the other point of view, namely whether the fanner could recover damages from a motorist injuring the stock, the answer would depend entirely upon the facts of the case. It would be necessary to establish negligence on the part of the person doing the damage.