IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE	
CIV-2017-483-003
[2018] NZHC 2819	

BETWEEN	HALL’S GROUP LIMITED
First Plaintiff	
AND	P & T TRUCKING LIMITED
Second Plaintiff	
AND	GAVIN ROWE AND GWEN ROWE
Defendants	

Hearing:	30 April, 1, 2 and 3 May 2018	
Appearances:	C J Shannon and A B Weal for the Plaintiffs
R M Flinn and A E Goodall for the Defendants	
Judgment:	31 October 2018	

JUDGMENT OF CLARK J

I direct delivery of this judgment at
3.00 pm on 31 October 2018

HALL’S GROUP LIMITED & P & T TRUCKING LIMITED v ROWE and ROWE [2018] NZHC 2819
[31 October 2018]

Introduction

[1]	On the evening of Tuesday 22 April 2014 Kevin Robinson was driving a truck and trailer on State Highway 4 travelling south towards Raetihi. It was dark. Unknown to Mr Robinson black cattle had escaped their paddock and wandered onto the highway. Just as Mr Robinson took a call from his wife the cattle suddenly appeared on the road. Mr Robinson was unable to avoid them. The truck hit the animals then careered across the road. The truck and trailer overturned. Mr Robinson was unharmed but the truck and trailer sustained extensive damage.

[2]	The plaintiffs sue to recover their losses. The plaintiffs say the defendants were negligent in the discharge of their duty to keep their stock contained. The defendants accept they owed a duty of care but deny it was breached. The defendants raise an affirmative defence. They say Mr Robinson contributed to the accident. He was speaking on his mobile phone, exceeding the speed limit and, having only one eye, was visually impaired.

The collision

[3]	Mr Robinson has been driving trucks for approximately 40 years. In late 2013 Mr Robinson was contracted to Hall’s Group Ltd to drive part of an “ice cream run” between Auckland and Palmerston North. Mr Robinson would drive from Raetihi to Auckland to collect the goods then return to Raetihi where another driver would take over and continue on to Palmerston North.

[4]	On the evening of 22 April 2014 Mr Robinson was completing his leg of the ice cream run. He was driving a truck and refrigerated trailer. The trailer was owned by Hall’s Group, the first plaintiff. The truck was owned by P & T Trucking Ltd, the second plaintiff. P & T Trucking was contracted to Hall’s Group to transport (mainly) refrigerated goods. Around 7.20 pm Mr Robinson’s wife telephoned and Mr Robinson took the call on his mobile phone. He had dimmed the truck’s lights as he could see an oncoming vehicle. Within moments of answering Mr Robinson collided with the cattle. Mr Robinson describes just holding on after the impact until the truck came to a stop with the cab on its side. Mr Robinson told his wife who was still on the phone

to call the police and a fire engine. Fortunately, the truck was a “long-nose” truck meaning the cab did not sit over the engine, and Mr Robinson escaped without injury.

[5]	The collision took place near the driveway entrance to a market garden operated by AS Wilcox & Sons Ltd (Wilcox). Mr and Mrs Rowe (the Rowes or the defendants) ran stock on the Wilcox land. They grazed in paddocks after the Wilcox harvested crops. It transpired that 17 of the defendants’ cattle had escaped from the paddock in which they were then grazing at the rear of the Wilcox farm and a number strayed onto the road. I return to the configuration, size and layout of the paddock at [18]–[21].

[6]	A crane was needed to right the truck and trailer both of which subsequently required extensive repairs. The plaintiffs claim $273,256.32 for their combined losses.

The pleadings

[7]	The defendants admit they owed a duty of care to the plaintiffs to exercise reasonable skill and care in ensuring their cows were adequately fenced off and secured.

[8]	The plaintiffs say the defendants failed to ensure their cows were adequately fenced off and secured. In particular the plaintiffs plead:

15.1	The Defendants failed to ensure that their cows were adequately fenced off and secured, particulars of which include:

15.1.1	The gateway leading from the paddock where the cows were grazing was open; and/or

15.1.2	The gateway leading from the paddock where the cows were grazing was only secured with a strand of electrified tape; and/or

15.1.3	The gates on either side of the gateway leading from the paddock where the cows were grazing were not functional; and/or

15.1.4	The gates at the gateway leading from the paddock where the cows were grazing were compromised; and/or

15.1.5	The condition of the gates and gateway leading from the paddock where the cows were grazing was not common

practice in relation to fencing in the [locality of the land the defendants were farming]; and/or

15.1.6	A combination of two or more of the foregoing

15.2	The Defendants failed to ensure that all gates leading from the [Defendants’ property] to State Highway 4 were operational and were kept shut;

15.3	The Defendants failed to take any measures including the use of signage to warn users of State Highway 4 that there may be stock on the road.

15.4	A combination of two or more of the above.

[9]	The first plaintiff claims $86,160.24 for damage to its trailer. The second plaintiff claims $187,096.32 for damage to its truck, replacement truck rental costs and other associated costs.

[10]	In denying they breached the duty of care owed to the plaintiffs, the defendants say the cattle escaped despite the defendants exercising reasonable skill and care in providing fencing and other measures to prevent the cattle from straying. In particular the defendants say:

(a)	The entryway into the paddock in which the cattle were grazing is approximately 400 metres from State Highway 4.

(b)	The paddock was fully fenced and the gateway was closed with overlapping double pipe gates.

(c)	One of the gates was attached to a strainer post with permanent gudgeons.

(d)	The other gate was wired tight at the top  and bottom with number   8 wire to the opposite strainer.

(e)	Where the two gates overlapped in the centre of the gateway, they were wired tightly together.

(f)	As an additional precaution, a live 5.6v electric wire was erected approximately 4-5 metres away from the fence and gates.

(g)	There was more than sufficient feed in the paddock for the cattle. The cattle were frequently checked, and were checked shortly before the accident on the afternoon of 22 April 2014.

(h)	The cattle that escaped did so by jumping over the gate rather than breaking through it.

(i)	The escaped cattle had throughout their lives been grazed for long periods behind electric wire without any history of escaping.

[11]	The defendants also raise an affirmative defence of contributory negligence pleading Mr Robinson’s illegal use of his mobile phone, his visual impairment and that he was speeding.

Evidence at trial

[12]	Five witnesses gave evidence on behalf of the plaintiffs:

(a)	Kevin Robinson, the driver.

(b)	Kenneth Cathcart, a private investigator who was instructed to investigate and prepare a report for P & T Trucking’s insurance company.

(c)	Paul Farquhar, the director of P & T Trucking.

(d)	Wayne Newdick, a fencing contractor who was called to give evidence of the common practice in the Raetihi area in relation to fencing and other measures taken to prevent animals from straying onto highways in that locality, and offer expert opinion evidence as to whether the defendants’ gates and fencing conformed to the common practice.

(e)	Associate Professor Richard Laven who was called to give expert evidence regarding the likelihood or otherwise of 17 steers vaulting a gate.

[13]	Three witnesses were called for the defendants:

(a)	Gwenneth Rowe, the first defendant.

(b)	James Rowe, who is the defendants’ son and placed the stock in the

paddock on the day of the accident. Mr Rowe gave evidence (some purporting to be expert) as to the way in which the gateways and cattle were left.

(c)	Richard Lourie, who was called to give his expert opinion on common farming and fencing practices and the reasonableness of James Rowe’s methodology.

The legal framework and issues for determination

[14]	To succeed in their claim the plaintiffs must prove on the balance of probabilities that the defendants were negligent and that their negligence caused the plaintiffs’ loss. Proof on the balance of probabilities requires me to be satisfied that, in the particular circumstances of the case, it is more likely than not the defendants were negligent. The learned authors of The Law of Torts in New Zealand summarise the position in this way:1
A mere scintilla of evidence of negligence is not enough: a clear and substantial beach of duty must be proved. If the facts proved could be said to leave the matter in equipoise the plaintiff is not entitled to succeed. In the case of any matters raised by way of defence, such as contributory negligence or consent, the defendant equally must prove these matters to the same standard of likelihood.

[15]	Accordingly, the plaintiffs must prove on the balance of probabilities that the defendants failed to ensure their cattle were adequately fenced off and secured.

[16]	There is no dispute that some 17 of the defendants’ cattle escaped the farm and that five or so wandered onto State Highway 4. In cases such as this, where animals have strayed onto a highway, the reasonableness or otherwise of precautions taken by an owner of stock to prevent it straying onto the road must be assessed by reference to common practice in the locality. Such is the effect of s 5 of the Animals Law Reform Act 1989 which provides:

(2)	In determining, for the purposes of any proceedings, whether a person is liable by reason of negligence for damage caused by an animal straying onto a particular highway, consideration shall be given,

1	Stephen Todd “Negligence: Breach of Duty” in The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [7.5.02].

amongst any other matters that are required or entitled to be considered, to—

(a)	the common practice, in the locality in which the relevant part of the highway is located, in relation to fencing, and the taking of other measures to prevent animals from straying onto highways in that locality; and

(b)	any measure taken to warn users of that highway of the likely presence of animals on the highway.

[17]	The plaintiffs’ pleaded cause of action, in combination with the factors which s 5 of the Animals Law Reform Act requires to be considered, give rise to the following factual and legal issues:

(a)	Was the main gateway closed?

(b)	If the main gateway was closed was it secured effectively in accordance with common practice in the locality?

(c)	What was the common practice in the locality in relation to fencing and the taking of other measures to prevent animals straying onto highways?

(d)	Was the plaintiffs’ fencing and gate arrangement consistent with common practice in the locality?

(e)	Did the defendants breach their duty of care to the plaintiffs?

(f)	If the defendants did breach their duty of care, did the plaintiffs contribute to their loss by reason of any contributory negligence of the driver?

Was the main gateway secured?

The paddock and gateway

[18]	The defendants’ beef and sheep farm is part of the farming operations of the GJ Rowe Family Trust. James Rowe is employed by the Family Trust to farm an area

of approximately 800 acres, 200 of which is leased from the Wilcox. The remaining land is leased from neighbouring landowners. The Wilcox use a rotational cropping system. The Rowes work in with that system grazing their stock in paddocks where crops are not growing and in paddocks after harvest.

[19]	The cattle escaped from a 30-acre paddock in which they were then grazing.

[20]	To get to State Highway 4 from the paddock it is necessary to pass through a double gateway on the western side of the paddock, down a small slope a few metres to the river bed, cross the reasonably narrow width of a river, pass through a double gateway at the back of the Wilcox yard and down the Wilcox driveway. The point on State Highway 4 where the truck collided with the animals was 300 to 400 m from the paddock.

[21]	Mr Rowe has farmed next to state highways for 19 years. He said he understands the need to be cautious. His anxiety about the risk of stock escaping onto roads is such that he and his wife moved to Raetihi to avoid farming on a busy road. Mr Rowe also referred to the challenges which farming in co-operation with market gardeners presents. Gates are sometimes left open. Mr Rowe referred to his past experience of gates being left open and stock escaping. Consequently he was “paranoid” about making sure things are as secure as possible.

Plaintiffs’ evidence

[22]	The plaintiffs’ case is that the main gates were not hanging and swinging properly from gudgeons on the strainer posts. As a result the main gates were left open at all times and, on this occasion, the cattle were secured by a single strand of hot wire across the gateway.

[23]	The principal evidential basis for the plaintiffs’ position is the evidence of the private investigator, Mr Cathcart. Mr Cathcart visited the Rowes’ farm on 15 May 2014, three weeks after the accident. He looked at the crash site, the Wilcox property and the paddock from which the stock escaped. He spoke with the defendants and their son, James Rowe. Mr Cathcart photographed the property, the paddock, the Wilcox gates and the main gates. Approximately 30 minutes later he sat in his car and

made notes of his visit. Once back at his office Mr Cathcart drafted his report to Echelon (NZ) Ltd. The final report is dated 29 May 2014.

[24]	Mr Cathcart reported on his conversation with the driver, Mr Robinson, his contact with the local police and his initial contact with Mr Rowe to arrange a site visit ultimately agreed to be 3 pm on 15 May 2014. Mr Cathcart reported that when he arrived Mr Rowe was not present but the defendants arrived following phone calls made by the person who answered the door at the address.

[25]	Mr Cathcart provided a general description of the paddock gateway, the defendants’ account of the lease arrangements and the presence of the stock on the day of the accident. The stock had approximately 200 acres of forage available to them. As they are highly relevant I reproduce in full two paragraphs from Mr Cathcart’s report:

The paddock gateway through which the stock escaped is across the river from the Wilcox property. The gateway was secured by placing a strand of electrified tape across that open gateway to prevent the animals escaping. We note there is a gate either side of the gateway but the gates were left open. It appears they were not functional.

The ROWES advised that on the evening of the accident they had found the double pipe framed gates on the boundary of the Wilcox yard open. The stock had, we are advised, moved through the hot tape, then across the river, through the double pipe framed gates which were open and on to the highway.

[26]	In another section of the report  containing  images  of  the  main  gateway Mr Cathcart stated: “We are advised the pipe gates were not closed whilst the stock were in the paddock behind.” The statement was the subject of detailed cross- examination which I discuss at [37]–[40] below.

[27]	In his report Mr Cathcart observed that the defendants did not disclose who may have been the last person through the gates, whether one of their staff or Wilcox staff. But he noted there was no obvious reason for the Wilcox organisation to move through the gates as there was no current cropping-related activity past that point.  Mr Cathcart also observed that upon reviewing the main gates there was a section of grassed area which had been relatively recently grazed indicating stock had been in the area for a period of time as opposed to “making their way through”.

[28]	Mr Cathcart concluded liability was an issue that would require the insurance company’s attention. Mr Cathcart reported it had not been possible to conduct a “comprehensive examination” of the paddocks/gateway from which he believed the stock escaped due to the position adopted by the defendants and their son. Mr Cathcart concluded: “[s]uffice to say the electric tape placed across the open gateway was not sufficient to stop at least five of their stock escaping”.

[29]	Mr Cathcart observed the last line of defence preventing the animals from escaping onto the highway was a pair of pipe-framed gates on the Wilcox perimeter. As Mr Rowe himself described, the two gates were latched together with a standard hook although it was not fitted with an “o-ring keeper” to prevent accidental dislodgment. Nor was there any additional security to prevent accidental opening of the gates in the event of the latch being dislodged by stock rubbing against it or similar.

Defendants’ evidence

[30]	Mr Rowe recalled that on 22 April 2014, the paddock had just been harvested. He moved 120 steers into the paddock that afternoon. Mr Rowe closed behind him the gate through which he had brought the cattle into the paddock. This gate was referred to as the “back gate”. There is no suggestion the cattle exited through this gateway and it is not necessary to refer again to the back gate.

[31]	The paddock had a second gateway. The focus of the case is on this wide, double gateway at the river end of the paddock. As did Mr Rowe, I refer to it as the “main gateway” and the gates as the “main gates”. Mr Rowe’s evidence was that:

(a)	The main gateway had piped farm gates which, when closed, overlapped in the middle.

(b)	At each side of the gateway were large strainer posts. The right gate swung on gudgeons on its strainer post. The left gate did not. No gudgeons were fitted to the left side. Instead the left gate was wired top and bottom with number 8 wire to attach it to the post. Mr Rowe’s recollection was that he had wired it in this way before the day of the accident but, in any event, while the gate could not swing freely it was

held tightly to the post and closed off the gateway securely.

(c)	The latch was a typical farm latch with a ring but no spring to keep the ring in the closed position. To prevent stock from nudging or licking off the ring and the gates being opened Mr Rowe used a loop of wire twisted tight as an added precaution.

[32]	Mr Rowe said that from the main gateway he could see, across the river, the double gateway at the back of the Wilcox yard.   He noticed the gates were open.   Mr Rowe crossed the river and closed and latched the Wilcox gates. He returned back over the river to the main gateway and closed and latched the gates across the main gateway.

[33]	Lastly, Mr Rowe put up a hotwire. Carrots were growing in a smaller paddock adjoining the main paddock. The fence between the two paddocks was in poor condition particularly at the north-east section near the main gateway. Mr Rowe said he was worried about the cattle getting into the corner where the main gateway bordered the neighbouring carrot paddock. He fenced the entire corner with approximately 40 m of hotwire erected in such a way that if any of the gardeners needed to access the carrot paddock they could do so. To reach the gateway the cattle would need to breach the wire which was strung inside the paddock a few metres in front of the gateway.

[34]	The hotwire was powered by a 12V car battery and a Gallagher energizer B11 portable unit. Mr Rowe described testing the hot wire on the afternoon of the accident and it was putting out either 5.3V or 5.6V. Anticipating a suggestion that it is not usual practice to place a hotwire over a closed gateway Mr Rowe observed there was another business operating on the site. He was not in control of who was coming and going. It was not uncommon for market garden staff to leave gates open. Erecting hot wire provided an additional barrier to protect the carrots from the cattle and to stop the market gardeners letting the cattle out.

The evidence in more detail

[35]	Several aspects of Mr Cathcart’s evidence were challenged in cross- examination including the “tone” of his meeting with the Rowe family and whether the Rowes themselves had ever mentioned they had left both gates open or whether that was just Mr Cathcart’s conclusion.

[36]	The evidence about the tone of the meeting I regard as a side issue. Each side accused the other of assertiveness bordering on aggression. It transpired that when Mr Rowe agreed to meet Mr Cathcart, Mr Rowe understood he was meeting with a representative of his own insurer, FMG. When Mr Cathcart turned up, and apparently threatened to contact the Police, Mr Rowe did so himself. Mr Rowe reported that his friend, a local constable, advised Mr Rowe what to do. Mr Rowe (jokingly) said he could not repeat what the constable had told him to say to the private investigator.

[37]	Of greater substance, and concern, is Mr Cathcart’s statement in his report that “[w]e are advised the pipe gates were not closed whilst the stock were in the paddock behind. A length of hotwire was stretched across the gateway”.

[38]	Mr Cathcart accepted under cross-examination that the Rowes did not say “in those precise words” they had left the main paddock gates open.

[39]	Mr Cathcart explained the statement which I have set out at [37] above. He construed from the position of the gates at the time of his site visit (indicated in the photographs which I discuss shortly), and the fact the defendants said a length of hotwire  was  stretched  across  the  gateway,  that  the  gates  were  open.  During  Mr Cathcart’s cross-examination I clarified with him, and counsel, the meaning of the terminology being employed. “Gateway” had been used to refer to both the open space in the fence which may or may not be secured by gates, as well as the gates themselves. Because Mrs Rowe had described a hotwire over the “gateway”, rather than over the “gates”, Mr Cathcart took her to mean the gates were open.

[40]	It is one thing to reach a conclusion or draw an inference from a statement. It is another to attribute specific words to a witness which the witness did not in fact utter. While this attribution of specific words to Mrs Rowe was simply incorrect, and

should not have  occurred,  I  did  not  regard  the  representation  as  discrediting  Mr Cathcart’s report as a whole.

[41]	Mr Cathcart is the only witness to have produced any kind of contemporaneous photographic evidence and it is that to which I now turn. In the passage from his report set out at [25] above Mr Cathcart described the gates on each side of the gateway as appearing not to be functional. He described both gates as leaning at an angle. As a picture is often said to convey a thousand words I have attached to this judgment, two of Mr Cathcart’s photographs of the main gateway. The images were included in the agreed bundle of documents. Attachment 1 shows both gates slumped away from the gateway. A closer view of the right-hand gate is included as attachment 2.

[42]	Mr Cathcart’s evidence was that neither gate was hinged. Mr Rowe’s evidence was that the left-side gate was hinged. The left-hand gate is leaning against its strainer post but Mr Cathcart was unable to say what the right-hand gate was leaning on or what supported it. Mr Cathcart described grass growing at the base of the gates. The description is borne out by the images. Indeed, long grass is growing through the apertures in the gates. The long grass contrasts with what Mr Cathcart described as grazed grass on the sides of the path beyond the gate leading to the river. Mr Cathcart further observed in cross-examination that in the mode in which he photographed them the gates were dysfunctional. In Mr Cathcart’s view effort would be needed to retain the gates to the strainer posts.

[43]	A further indication of lack of use, if not dysfunction, is the large log lying at the base of the gate (on the right-hand side of the photograph). One end of the log appears to occupy approximately one third of the width of the gate. That log, or a second log, runs on the ground past the strainer post and across two to three segments of the fence. Mr Rowe’s explanation for the presence of the log, and other debris, was that they were the result of a one-hundred year flood. Mr Rowe accepted that for the point to be relevant the flood would have to have occurred between 22 April 2014 (the day of the accident) and 15 May 2014 (when the photograph was taken).

[44]	The difficulty with a narrative that has a 100-year flood positioning the log or logs, and debris by the gate in the way photographed is that NIWA records produced

in evidence record a rainfall only slightly above the average rainfall for Raetihi for the relevant period.

[45]	Mr Cathcart’s photographs (attachments 1 and 2) show the remnants of a wooden gate on the right-hand  strainer  post.  There  was  no  dispute  about  that. Mr Rowe said the wooden gate had been there “for a long time”. He accepted the remnants of the wooden gate were “just obviously junk” and that when wiring up that end of the gate “he would have removed the junk, the wooden gate” but he didn’t have a trailer on the day he wired the gate or anything similar with which to dispose of “stuff like that”.

[46]	These main gates were usually open. Mr Rowe said that was because the contractors were going in and out with carrots and straw and barley and so the gates were only shut when he used that paddock. This was Mr Rowe’s explanation for the lack of any drag marks from the lift and swing gate.

[47]	Mr Rowe produced his own photographs. Mr Rowe was asked in 2017 to recreate the gateway as he left it on the afternoon of 22 April 2014 and to photograph his recreation. This he did. One of Mr Rowe’s photographs is reproduced at attachment 3 to this judgment. Mr Rowe explained important differences between the gates in his recreation and the original gates. The first is that at some stage in the four years since the accident the right-hand post had gudgeons fitted to it to allow that gate to swing freely. There were no gudgeons in April 2014 and the gate was attached to the post with wire only. The second difference was that the wire Mr Rowe said he used for the photographs was number 10 steel wire whereas the wire he used in  April 2014 would have been number 8 wire which is a thicker gauge and bends and holds its knots more readily.

[48]	Mr Rowe denied the gates shown in attachments 1 and 2 were the same gates in place, and secured, on the night of the accident three weeks earlier. Furthermore, the left-hand gate had been significantly damaged, according to Mr Rowe’s account.

[49]	In his written brief of evidence Mr Rowe said he inspected the gateway after he helped at the crash site on the night of the accident. He described the left-hand gate

as “squashed down” from roughly its middle. It was bent “slightly downwards and outwards at the top”. The hotwire was also broken or detached. Mr Rowe said it was obvious to him the cattle had vaulted the gate squashing the top of the gate in the process.

[50]	In the course of his evidence-in-chief Mr Rowe modified the description, in his written brief of evidence, of a “slight” downwards bend in the gate. He said the gate was squashed to a height of 600 millimetres and that “slightly bent” was “probably not a good description”. In cross- examination about the extent to which the gate had been depressed, Mr Rowe estimated  the  extent  of  the  depression  to  be  about  400 millimetres.

[51]	Beyond his description of the damage, and a depiction of the damaged gate which Mr Shannon asked Mr Rowe to sketch, Mr Rowe was unable to account for the damaged gate. Close to the trial Mr Rowe apparently looked around for it but was “unable to identify it”. He said it may have been disposed of, or straightened up and put to use elsewhere. “It has just been too long for anyone to recall what might have happened to it.”   The responsibility for gates and fences on that block was not       Mr Rowe’s but lay with Wilcox.

[52]	In addition to evidence bearing on the state of the gates there was expert testimony directed to the likelihood, or otherwise, of cattle jumping fences.

[53]	Dr Richard Laven, Associate Professor in Production Animal Health at Massey University’s School of Veterinary Science was called by the plaintiffs to give expert opinion evidence on the topic of jumping cattle.

[54]	His evidence was that cattle can jump quite significant heights but providing they are being fed to their requirements and not being chased or stressed they rarely jump such heights.

[55]	In cross-examination Mr Flinn put to Dr Laven the work of an academic with the Swedish University of Agricultural Scientists to the effect that “all holding animals show leadership, fellowship behaviour under various social circumstances”.

[56]	Dr Laven agreed “Cows will generally do things together. They’re social animals. They sit. They lie down. They ruminate”. Dr Laven described the inquisitive nature of immature animals such as the steers which escaped. They look around and search their environment. If a steer is grazing on another side of a paddock or gate it is highly likely other cattle will want to follow. This is normal behaviour for cows. Such behaviour does not rely on “leadership” as such.

[57]	But Dr Laven emphasised the distinction between cows tending to follow each other in their normal behaviours (such as grazing or investigating) and following a cow which is behaving in an atypical way. Dr Laven’s opinion was that if an animal is doing something not normal for the animal, such as jumping over a fence, this will not cause 16 others to follow. In this sense cows do not “follow the leader”.

[58]	Dr Laven’s view was that if cattle were seeking food beyond their paddock they would be more likely to find a weakness in the fence or gate and push through. Given Mr Rowe’s evidence that his cattle had never previously jumped the gate, it was extremely unlikely that around 17 would do so one evening. The cattle had sufficient feed and would not have been particularly attracted to the mown grass.

[59]	Mr Lourie, who was called by the defendants, disagreed with Dr Laven’s view that cattle do not tend to follow the leader. Mr Lourie said:

They follow the leader all right. I’ve had experience of 11 cattle on the side of a big face on a big station out of Hunterville following one another around a steep face like that and coming to a vertical slip and one after the other, I was on a ridge half a mile away from them, mustering them, one after the other the whole lot walked off, onto that slip and fell to their deaths while I sat there and watched.

[60]	Mr Lourie considered that a gate that had been lowered by 40 cm or thereabouts, as a result of one animal vaulting it, would increase the likelihood of other cattle jumping the barrier. Contrary to Dr Laven’s opinion, Mr Lourie considered mown grass would be attractive to the cows and would possibly incentivise them to vault the fence.

[61]	Mr Newdick has 40 years experience in fencing. He assists fencing competitions around New Zealand. Mr Newdick won the Golden Pliers competition

in 2002. For the preparation of his brief of evidence  Mr Newdick  visited  the Wilcox Brothers site and drew on his many years of experience in fencing and farming. I return to Mr Newdick’s evidence about the common practice in relation to farm gates and fences. For immediate purposes it is Mr Newdick’s observation about the behaviour of stock that is relevant. Mr Newdick is familiar with the behaviour of stock “as that is something to be taken into account when fencing. I design and build fencing for the purpose of ensuring that stock is contained”.

[62]	Mr Newdick had never seen or experienced 18-month old steers vaulting gates. Mr Newdick disagreed with Mr Rowe’s claim that it is “very easy” for cattle to get over fences and gates. Mr Newdick’s view is that fences and gates are designed to contain cattle. In Mr Newdick’s opinion it would only be possible for stock to jump a gate that was already compromised. “It is highly unlikely that stock would be able to jump a standard sized, properly functioning gate”. If that were possible farming gates throughout New Zealand would not be stock proof and farmers would be faced with cattle constantly vaulting them. “That does not happen” Mr Newdick said.

Assessment

[63]	There is no direct evidence showing how the stock escaped from the paddock on 22 April 2014. There are two potential scenarios:

(a)	The gates were open and the gateway was secured by a strand of hotwire strung over the gateway.

(b)	The gates were closed and the gateway was further secured only by a strand of hotwire strung over the gateway. The cattle vaulted the gates thereby damaging them.

[64]	The defendants rely on Mr Rowe’s evidence in support of the second scenario. The expert evidence of Dr Laven, which I found compelling, suggests this scenario is highly improbable.

[65]	Beyond Mr Rowe’s four-year old recollection of what he accepted was an unremarkable afternoon, there is no evidence to support a scenario that has 17 steers

vaulting and damaging properly secured gates. There was no evidence the cows were “spooked”, and expert evidence weighs against the attractiveness of mown grass. The photographs depict gates that are slumped away from the gateway and any attempt to close them would likely be impeded by the considerable amount of debris by the gateway. There is no evidence of disturbance of the debris, or long grass or what appear to be thistles, by movement within the relevant timeframe.

[66]	If the gates photographed by Mr Cathcart three weeks after the accident were not the gates in place on the day of the accident, as Mr Rowe contended, no witness was called to say what had happened to them. Consequently, there is a lack of reliable evidence of any damage to the gates at all, much less damage caused by cows vaulting them. No one from Wilcox was called to testify to the repair of the gates or their replacement or what, if anything, they had done to, or with, the gates said to be in place on the day of the accident. If a damaged gate had been repaired or replaced by Wilcox it would have been helpful to have heard from them.

[67]	To accept that the steers jumped the gate it is necessary to assume that between the night of the accident and Mr Cathcart’s site visit three weeks later, the gates which Mr Rowe says were upright, functional and secured on the night of the accident, but which were damaged by the vaulting steers, had been replaced by new or repaired gates, left as depicted in Mr Cathcart’s photographs (attachments 1 and 2). In addition to the fact the gates were not supported, the old wooden gate which Mr Rowe described as “junk” had not been detached from the gate post and debris, not of recent origin, lay alongside the gate impeding its closure but with no evidence of disturbance in the debris or the long grass.

[68]	I  have  also  taken  account  of  Mr Newdick’s  evidence.   According  to   Mr Newdick the fact the gates were lying to their side suggested they were not properly fixed to the gudgeons and could not be swung. In Mr Newdick’s experience it is “very uncommon” for a gate to be wired shut. The normal practice throughout New Zealand is to latch farm gates. Mr Newdick observed the fencing alongside the gate was also in poor condition.

[69]	The evidence satisfies me the gateway was secured only by a string of hotwire. In the opinion of both fencing experts, a string of hot wire alone is an unacceptable method of securing cattle in Raetihi. The plaintiffs have proved on the balance of probabilities that the defendants breached their duty of care to adequately secure their cattle to prevent them from wandering onto the road.

Contributory negligence

[70]	A plaintiff who sues in negligence but who has failed to take reasonable care to look after her or his own interests, and thereby contributed to her or his own loss, may be met with the defence of contributory negligence.2 If a defendant succeeds in establishing the defence, then under the provisions of the Contributory Negligence Act 1947 the Court may apportion responsibility for the damage between the plaintiff and defendant. Section 3 of the Contributory Negligence Act provides:

(1)  Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

[71]	“Fault” is defined to mean “negligence … or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence”.3

[72]	A plaintiff’s negligence will not give rise to contributory negligence if it is not a proximate cause of the damage for which the plaintiff sues.4 The plaintiffs’ negligence must be causal and operative. Ordinary principles of causation and remoteness apply to contributory negligence claims and before questions of apportionment arise.5

2	Stephen Todd “Defences” in The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [21.2].
3	Definition of “fault”, s 2 Contributory Negligence Act 1947.
4	Todd, above n 2, at [21.2.03].
5	At [21.2.03].

The contributory negligence claim in this case

[73]	The defendants plead that, if it is held the plaintiffs have suffered losses for which the defendants are liable, such losses result wholly or partly from the plaintiffs’ own fault in that:

9.1	the accident occurred after dark, at approximately 7.20 pm;

9.2	at the time of the accident, the truck and trailer was travelling at a speed exceeding 90 km per hour, being the applicable speed limit;

9.3	at the time of the accident, Mr Robinson was speaking on his mobile phone; and

9.4	Mr Robinson’s vision is impaired.

[74]	I address in turn each component of the contributory negligence claim.

Visual Impairment

[75]	Mr Robinson has only one eye. His left eye was removed in 1997. He has continued to be licenced ever since but, reflecting Mr Robinson’s visual impairment, his licence is endorsed with conditions. The following condition appears on the licence: “[b]oth sides of vehicle require external rear vision mirrors”.

[76]	Mr Robinson is unable to have his eyesight tested by a licensing agent. On each occasion of the renewal of his licence since 1999 Mr Robinson has been required to obtain a certificate from an optometrist or medical practitioner stating his eyesight complies with the standards specified in r 38(2) of the Land Transport (Driver Licensing) Rule 1999.6 Rule 38(2)(b) applies to an applicant for a licence who has vision only in one eye. An applicant for a class 1 or class 6 licence, or a dangerous goods or special-type vehicle endorsement who has vision only in one eye must have a visual acuity of at least 6/12 in one eye and have a visual field of at least 140 degrees in that eye.

[77]	As at April 2014 when the accident occurred Mr Robinson had a current driver’s licence for licence classes 1 to 6 and endorsements for dangerous goods and

6	Land Transport (Driver Licensing) Rule 1999, r 38(1)(b).

forklifts. Mr Robinson’s licence authorised him to drive tractor and trailer units providing both sides of the vehicle had external rear vision mirrors.

[78]	The plaintiffs point to the currency and validity of Mr Robinson’s licence at the time of the accident. The defendants say that is not the end of the inquiry. In closing, and by reference to his cross-examination of Mr Robinson, Mr Flinn submitted the defendants had sought discovery of Mr Robinson’s optometry examinations.  In fact, and as the notes of evidence show,  Mr Flinn simply asked  Mr Robinson whether the lawyers for the plaintiffs had asked Mr Robinson to obtain a copy of the certificates provided by the medical professionals. Mr Robinson’s evidence was that he approached the New Zealand Transport Agency for copies of the medical certificates he was required to give them but the Agency did not hold them.

[79]	The Court file reveals an application by the defendants for particular discovery of these records. At the first case management conference in June 2017 standard discovery was  ordered.  The  defendants  did  apply  for  particular  discovery  on  15 February 2018. That application focused on medical assessments contemplated by cl 6 of the Agreement for Owner Driver Services between the first and second plaintiffs. The application sought “Documentary records of any medical assessment of Mr Robinson as contemplated by cl 6 of the Agreement for Owner Driver Services between the first and second plaintiffs”. Clause 6 of the Agreement requires the driver to be medically fit to perform the Services,7 and to provide a medical certificate to that effect if required.

[80]	The  plaintiffs’  response  to  the  application  for  particular  discovery  on  16 February 2018 was to the effect they would communicate with defence counsel. As at 26–27 April 2018, when counsel filed pre-trial memoranda, no outstanding issues regarding discovery were signalled or raised.

[81]	I do not accept the submission that an adverse inference can be drawn from an alleged failure to give particular discovery. Mr Robinson’s evidence was that he sought his medical certificate from the licensing agency but it had not retained the

7	“Services” is defined in the Agreement as pick up and delivery of goods, related handling, sorting and consolidating and completion of relevant documentation.

records. Nor do I accept that an inference adverse to the plaintiffs can be drawn from the fact Mr Robinson declined to submit to a medical examination which the defendants requested.

[82]	At the time of the accident Mr Robinson had a valid licence to drive the type of vehicle he was driving. His licence had been renewed three or four times since the removal of his eye in 1997 and his evidence that his eyesight was checked on each occasion by a medical professional was not impeached.8 If optometry records were essential to the defendants’ claim the onus was on the defendants to take formal steps to have Mr Robinson obtain those records from the relevant professionals who undertook the examinations. I note Mr Robinson’s licence was renewed a month after the accident.

[83]	At the time of the accident Mr Robinson was appropriately licenced for the vehicle he was driving and complying with the conditions of his licence relating to his visual acuity. The defendants have brought no evidence to suggest much less establish non-compliance with the requirements of Mr Robinson’s licence. The defendants have not established Mr Robinson’s visual impairment contributed to the plaintiffs’ losses.

Speeding

[84]	Mr Robinson was driving at 93 km/h, three km/h in excess of the speed limit. Mr Robinson did not initially accept that he was driving at 93 km/h because the vehicle was governed to a speed of 90 km/h. The plaintiffs adduced no evidence to that effect. Mr Robinson did accept that a governor would not restrict a vehicle rigidly to 90 km/h if, for example, going down a hill. He said the speed might increase slightly in those circumstances. The only evidence of speed was the GPS evidence of the vehicle travelling at 93 km/h. In the face of that evidence Mr Robinson accepted he must have been travelling at 93 km/h.

[85]	The defendants’ position is that the cattle began to be visible approximately three seconds prior to the point of impact. There was no braking prior to impact. The

8	In the course of the trial the parties used the term “medical professional” in referring to a doctor or an optometrist.

defendants invite the Court to infer that at 93 km/h, three seconds of braking prior to impact “is likely to make a significant difference to the speed of the truck at the point of impact, and therefore the force of the impact, as well as the stopping distance following the point of impact”.

[86]	Mr Flinn submitted the issue of speeding ought to be considered alongside Mr Robinson’s (alleged) failure to react because he was answering his cellphone. Together the two factors — speed and being distracted — “may have made a very significant difference to the force of the impact.”

[87]	Referring to the police attendance at the crash scene  and its investigation.  Mr Shannon emphasised that Mr Robinson was not charged in relation to the accident and was not issued with any infringement notices. Therefore, Mr Shannon submitted, the police did not consider there to be any fault on the part of Mr Robinson. I regard this point as irrelevant to an analysis which must focus on causation.

[88]	The Court is invited to speculate about whether Mr Robinson could have avoided the impact altogether had he not been distracted or visually impaired, and had he been holding the wheel with both hands and driving at or under the speed limit. Yet there was no evidence of the relationship of any of these factors individually, or cumulatively, to the accident. The defendants’ case is that the factors “must” have made a difference. The difference would have been “significant” and the Court should deal with the issue of contribution on a probabilistic basis. The percentage contribution to the plaintiffs’ losses can be worked out on the basis of reasonable speculation. Having viewed the footage during the trial, and again in the course of preparing my judgment, I am not comfortable proceeding on the basis of “reasonable speculation”.

[89]	It is necessary to state with particularity what is shown in the footage recorded on the truck’s “cab camera” (as it was termed by Mr Robinson). The footage lasts for 15 seconds. At the outset, the footage shows an illuminated road with a light some distance ahead coming towards the truck. The vehicle is travelling at 92 km/h for the first three seconds. Thereafter, it is travelling at 93 km/h. Two seconds into the footage a beep is heard. The beep is repeated two seconds later, that is, four seconds

into the video. Seven seconds into the video Mr Robinson can be heard saying “hey” to the caller. At eight seconds Mr Robinson shrieks. The shrieks last for some three seconds so that the last shriek from Mr Robinson is 11 seconds into the video. Fourteen seconds into the video Mr Robinson can be heard saying “are you there darling” and the video ends at 15 seconds. The footage shows the steers becoming visible almost without warning. They seem to just appear. Mr Robinson’s evidence was that he held on after the impact until the truck came to a stop with the cab on its side.

[90]	No more than two seconds elapses between hearing Mr Robinson say “hey” and the first shriek. Whether the steers first become visible one or more seconds before the collision is arguable. I have proceeded on the basis of the estimate which the defendants advance of the steers being visible for approximately three seconds before the collision.

[91]	No evidence is needed to be able to state the mathematical fact that driving at 93 km/h is the equivalent of 25.8 metres per second (m/s). The vehicle would thus cover 77.4 m in three seconds. Driving at the speed limit of 90 km/h is to travel 25 m/s and thus 75 m in three seconds. In the three seconds (on the defendants’ case) following the point at which the cattle became visible, the truck travelled 2.4 m further at 93 km/h than had it been travelling at 90 km/h.

[92]	In a sense it is artificial to determine the issue of speed in isolation from the fact that Mr Robinson had also answered his mobile phone. In this regard I accept Mr Flinn’s submission. I address the phone call next but focusing for the moment simply on the issue of speed there is no evidence from which to infer, in this case, that the three km/h excess speed contributed to the plaintiffs’ losses.

Illegal use of mobile phone

[93]	The defendants point to Mr Robinson’s illegal use of  his  mobile  phone. Rule 7.3A(1)(a) of the Land Transport (Road User) Rule 2004 prohibits the use of a mobile phone while driving a vehicle. The rule creates exceptions to the prohibition on the use of a mobile phone but the plaintiffs did not contend that any of the

exceptions applied to the circumstances in which Mr Robinson took the call from his wife.

[94]	Mr Robinson’s phone was connected to the truck’s stereo system via Bluetooth. Normally the phone would be answered by pressing a button on the stereo above the driver’s head. The button was not working at that time so Mr Robinson reached into the breast pocket of his Hi-Vis shirt for his phone. The phone was a flip type. A call could be taken by rapidly flipping the phone open then shut. Flipping it shut did not terminate the call. Once activated in this way the conversation could be conducted via Bluetooth over the truck’s stereo system.

[95]	The defendants’ case is that to answer the call Mr Robinson was required to manipulate his mobile phone with his right-hand, leaving his left-hand on the steering wheel. As a result he was distracted from the road at that moment. The situation was exacerbated,  the  defendants  say,   by  Mr Robinson’s  reduced  field  of  vision.   Mr Robinson turned his good eye from the road towards his phone.

[96]	Although Mr Robinson stated in his brief of evidence that his phone was back in his pocket and both hands were on the wheel at the point of impact he accepted that to be a false memory as the footage showed the phone was still in his hand and one hand was on the wheel when he hit the steers.

[97]	Mr Robinson’s evidence was that he was momentarily distracted but not more so than when he looks away from the road to press the button in the truck to receive a call via Bluetooth.

[98]	A driver may receive a call on a mobile phone if it is secured in a mounting fixed to the vehicle and if the driver infrequently and briefly manipulates or looks at the phone.9 But that is not what Mr Robinson did. The footage shows Mr Robinson’s face and the cab illuminated by the light from the phone which he has answered and which he was holding in his right-hand. He is shown looking down at the phone to see who is calling. Almost contemporaneously with greeting the caller (his wife) the impact occurs and we hear Mr Robinson’s shriek for approximately three seconds

9	Land Transport (Road User) Rule 2004, r 7.3A(7).

before he then asks his wife if she is still there. In taking the call in the way he did Mr Robinson was acting unlawfully.

[99]	That said, I am satisfied Mr Robinson’s clear departure from acceptable standards of driving had no material influence on the plaintiffs’ losses. To succeed in their counterclaim the defendants must show that Mr Robinson’s actions contributed to the damage and loss which the plaintiffs suffered as a result of the defendants’ negligence.

[100]	From the footage of the few seconds just prior to the point of collision it is not possible to find or infer that Mr Robinson’s use of his mobile phone was a proximate cause of the damage for which the plaintiffs sue. The only blameworthy conduct relevant to a consideration of apportionment is that conduct which is “material and substantial” not that which is a “de minimis or trivial” contribution.10 As I have found, Mr Robinson’s receipt of the phone call was unlawful but the defendants have not shown  the  necessary  causal  relationship  between   the   plaintiffs’   losses   and Mr Robinson driving at excess speed and his careless use of his mobile phone in the seconds prior to the collision. There was no evidence as to the way in which a reasonable driver of that truck, in the circumstances of that night, would be expected to react had he or she seen the cattle one or two seconds earlier.

[101]	Mr Robinson’s testimony was that, had he seen the cattle a couple of seconds earlier, his only option would have been to brake and hold on. Mr Robinson said he would not want to veer off the road.

[102]	My analysis, and the parties’ analyses, of the moments before the collision are undertaken after the event and with the capacity to pause, rewind and advance the footage frame by frame. Even with this ability to closely study the moments before impact I conclude there is no basis upon which to find on the balance of probabilities that Mr Robinson’s speed contributed to the plaintiffs’ losses.

[103]	Mr Robinson accepted that the human eye would have better visibility than the camera but that concession is subject to the significant advantage in viewing the

10	Price Waterhouse v Kwan [2000] 3 NZLR 39 (CA) at [28].

footage after the event when the emergence of the cattle is anticipated and the footage is viewed with a keen eye for a specific event. Nor does a post-facto analysis take account of any allowance for a reasonable reaction time.

[104]	The incontestable facts are that it was dark, Mr Robinson had dipped his lights due to an oncoming vehicle and there was no evidence to suggest that the prudent driver on that stretch of road should reasonably anticipate stock the presence of stock on the road. The defendants’ case is analogous to a plea of res ipsa loquitur but that is an inappropriate basis upon which to advance a claim for contributory negligence in this context.

Result

[105]	The defendants breached their duty of care by failing to take adequate measures to keep their cattle secured. In doing so, they caused the plaintiffs loss.

[106]	The defendants have not established their claim of contributory negligence.

[107]	The defendants do not dispute the plaintiffs’ claims for their respective heads of loss. Accordingly, the first plaintiff is awarded $86,160.24 in compensatory damages. The second plaintiff is awarded $187,096.32 in compensatory damages. The plaintiffs succeed in their total claim of $273,256.32, plus interest. Interest is payable at a rate of 5 per cent per annum from 22 April 2014 to the date of this judgment.

[108]	The parties seek to be heard on costs. Memoranda not exceeding five pages may be filed. Any memorandum on behalf of the plaintiffs is to be filed and served by 14 November 2018. Any memorandum in response is to be filed and served by  21 November 2018.

Karen Clark J
Solicitors:
Duncan Cotterill, Auckland for Plaintiffs
DAC Beachcroft New Zealand, Wellington for Defendants

Attachmen

Attachment

Attachmen