Farmers liable for escaped steers

A Tasmanian farming family and a fencing contractor must reimburse Tasmania’s Motor Accidents Insurance Board for payments made to a driver seriously injured when his car collided with escaped steers.

At about 2am on 26 June 2008, 18-year-old Mitchel House was driving on the Bass Highway from his home at Wiltshire to work in Smithton when he collided with a steer wandering on the highway.

Tasmanian Supreme Court Justice Shan Tennent said House suffered catastrophic injuries, was now unable to speak or communicate in any meaningful way and had no apparent memory of the accident or anything before it. “He is now 25 years old and totally dependent on his parents.”

In 2008, MAIB launched an action seeking reimbursement from Michael Geoffrey and Lexie Louise Lester, whose farm Deep Creek was next to the Bass Highway where the accident occurred. The Lesters fattened cattle on the property.

MAIB argued House collided with a steer that had escaped with other steers from Deep Creek through an open gate and was wandering along the Bass Highway.

In October 2007, the Lesters had engaged contractor Circular Head Fencing Pty Ltd (CHF) to replace some fencing along their boundary, including new gates. When MAIB launched its action, the Lesters issued a third party notice to CHF alleging its negligent work had allowed the steers to escape, so it caused or contributed to the accident. CHF was then joined as a defendant.

There was agreement the steer House’s vehicle collided with belonged to the Lesters and had strayed onto the highway with many other steers. After the collision, the gate through which the steers escaped was found to be open.

Justice Tennent said two other accidents involving vehicles colliding with cattle occurred on the same stretch of the Bass Highway that night, at or about the same time as House’s accident.

One was a fully laden log truck bring driven from Smithton towards Burnie. The other was a utility being driven from Burnie to Smithton. It collided with a steer, which went over the bonnet, across the top of the cab and landed in the utility’s tray.

Farm manager Matthew Lester, the owners’ son, gave evidence he told CHF contractor Andrew Blizzard about a bucket of secondhand items that could be used to build the fence and gates.

“There was a difference in the evidence of Matthew Lester and Blizzard about what was said about use of the contents of the bucket. Matthew Lester said he told Blizzard the contents of that bucket were available to him to use for the fencing and gates, if they were suitable, while Blizzard said he was told to use items from the bucket,” Justice Tennent said.

Blizzard did use items from the bucket. He did not source any other items, new or otherwise, and did not ask that any new items be purchased.

The weather on 26 June 2008 was windy and cold with heavy rain from 12.50am to 1.10am, but no recorded lightning or thunder in the hours before the accident.

Justice Tennent said there was no evidence the cattle had stampeded. “Common sense dictates that, if a herd of cattle, each steer weighing about 500kg to 600kg, stampeded at a closed gate, forced it open and went through it, it would be expected there would be damage of some kind either to the gate or the adjacent posts and fencing. There was nothing obvious in this case.”

She said something caused the fence’s strainer post to move slightly away from the vertical. That was sufficient to pull the gudgeon pin out of the post because the chain was tight, the pin’s deficient design, its level of wear, and the manner in which it had been installed.

Justice Tennent did not accept Blizzard’s evidence about the pin’s fitness for purpose or the process he undertook to ensure the pin was securely installed.

Neither Michael nor Matthew Lester inspected Blizzard’s work when he did it or later. There was no evidence they subjected the latching mechanism to any inspection or checked to see if it was secure, as opposed to whether they could open and shut the gate. “Had the Lesters taken reasonable steps to check the efficacy of the pin available to Blizzard they would have known it was unsuitable for the use to which it was put.”

Justice Tennent also found CHF had failed to adequately secure the gate. “Quite clearly, the gudgeon pin Blizzard used had a design that would not hold against even minimal pressure, and, in any event, [it] had little thread.”

Blizzard’s experience meant he should have known the pin was deficient and advised the Lesters.

She said the Lesters and CHF owed a duty of care to House and their negligent acts breached that duty. “It was clearly foreseeable that if steers did escape they would wander onto nearby roads and pose a significant risk to any road user. The risk became reality and resulted in House's accident.”

Justice Tennent found no contributory negligence by House. “It was dark, the beasts on the road were dark in colour, and House was driving a road he knew well enough to be mindful of potential hazards. He could not have foreseen a mob of cattle [that] size would be on the road at that time. There was no evidence to suggest House was speeding and not keeping a lookout.”

Justice Tennent said it was not easy to determine the relative degrees to which the Lesters and CHF “departed from the reasonable standard of care required from each”.

She said both exhibited failures. However, even allowing for poor workmanship by CHF, had the Lesters exercised “a more robust approach” to their duty of care, the accident might have been avoided.

She apportioned liability at 65% for the Lesters and 35% for CHF to pay the scheduled benefits paid, and to be paid in the future, by MAIB.

Motor Accidents Insurance Board v Lester [2016] TASSC 2, judgement 18/1/16