A collision between a motor vehicle and livestock on a remote road is an all too frequent occurrence in rural and outback Australia.
At common law, owners’ or occupiers’ liability for damage caused by animals straying upon highways is governed by an old English rule, now abolished in England and most Australian jurisdictions, but not in Queensland.
The ‘rule’ – known as the rule in Searle v Wallbank - as explained in State Government Insurance Commission v Trigwell, is to the effect that an occupier of land adjacent to a highway is “…under no legal obligation to users of [the highway] so to keep and maintain his hedges, fences and gates as to prevent animals from straying onto it, and he is not under any duty as between himself and users of it to take reasonable care to prevent any of his animals, not known to be dangerous, from straying onto it”. The rule has recently been upheld by the Queensland Court of Appeal in Smith v Williams & Ors.
The immunity conferred by Searle v Wallbank is however not absolute. The rule only applies to stock that have strayed onto a highway in the absence of a deliberate act on the part of the landowner. The immunity will not apply in circumstances where the landowner deliberately allows or permits the livestock to be present on the road.
The ongoing application of the rule in Queensland has been the subject of some criticism. In a working paper from as far back as 1977 the Queensland Law Reform Commission (QLRC) “wholeheartedly” advocated that the rule be abolished. More recently, in 2012 the Coroner in the Inquest into the death of Roslyn Amelia Law recommended that the QLRC review its recommendations contained in the 1977 working paper and consider changes that it considers appropriate.
No doubt due to the operation of the immunity, most cases in Queensland where there has been a collision between a motor vehicle and livestock involve a CTP claim under the Motor Accident Insurance Act (MAIA) alleging negligence against another driver rather than a claim against the landowner.
The recent decision of the WA Court of Appeal in Proudlove v Burridge illustrates the difficulties in proving causation in such claims including whether the accident could have been avoided.
In Proudlove the plaintiff suffered catastrophic injuries when the vehicle in which he was a passenger collided with a horse which had escaped from a nearby property. The collision occurred on a straight stretch of road and, although it was nighttime and the area was unlit, there were no restrictions on visibility. The driver was travelling at 110km per hour.
The horse had earlier been seen on the road by another driver, Ms Tremayne. After seeing the horse, Ms Tremayne alighted from her vehicle to try to herd it off the road. As the plaintiff’s vehicle approached, she stood at or near the middle of the road waving her arms in order to warn the driver of the hazard. It was common ground at the trial that the driver of the plaintiff’s vehicle did not see Ms Tremayne on the road nor did he see her car or the horse. He drove past her and collided with the horse.
The trial judge found that the driver of the plaintiff’s vehicle breached his duty of care by failing to drive the vehicle with due care and attention, and in particular, by failing to observe and react appropriately to the warnings provided by Ms Tremayne. However, the trial judge concluded that the breach of duty did not cause or materially contribute to the plaintiff’s injuries because a reasonable person driving with due care and attention responding appropriately to those warnings would not have been able to avoid the collision with the horse.
The plaintiff appealed to the Court of Appeal. By a 2:1 majority, the Court of Appeal dismissed the plaintiff’s appeal and upheld the trial judge’s findings in relation to breach and causation. The Court of Appeal found that the distance between Ms Tremayne becoming visible and the impact point would not be sufficient to allow a reasonable person in the position of the driver of the plaintiff’s vehicle to avoid reaching the impact point at speed. The Court of Appeal held that it was open to the trial judge to conclude that the plaintiff had not established that the collision with the horse to be avoidable by the exercise of reasonable care. The dissenting judge concluded that a reasonable driver responding appropriately to the situation would have either brought the vehicle to a stop prior to the point of impact with the horse or, alternatively, reduced the speed of the vehicle to the level at which it could be maneuvered in such a way as to avoid any or any significant impact with the horse.
Unfortunately, it seems that collisions with horses, even dead ones, are not uncommon. In the leading Queensland case of Lawes v Nominal Defendant the plaintiff was injured when the motorcycle he was riding struck a dead horse. The trial judge found that it was more probable than not that the horse was lying on the road because of their recent collision with an unidentified motor vehicle.
While the trial judge found that the plaintiff had not shown that the impact between the horse and the vehicle resulted from negligence, the driver of the unidentified vehicle was negligent for failing to stay and warn due to the high risk that another road user would collide with the horse before it could be removed. In proving causation, the trial judge found that had the driver positioned the vehicle so that its lights illuminated the carcass the plaintiff would have avoided the collision with the animal.
Although the Nominal Defendant attempted to argue that the circumstances of the accident did not engage the statutory CTP policy of insurance (and both appealed to the Court of Appeal and sought special leave to appeal to the High Court) the plaintiff’s claim was upheld.