A man from Gosford has received over $1,000,000.00 following an accident which came by as a result of cows escaping a paddock, and making their way onto a highway. This matter was heard before Judge Cogswell.
The Plaintiff, Mr Collis, had finished work and was driving home along the Pacific Highway. The police were already at the scene of the accident before it happened. Some cows had escaped the property of Mr Slater and were on the road. The police were there to try and avert a dangerous situation.
Leading into the cows was a blind bend. As Mr Collis came around the bend, he applied his brakes and avoided hitting cows on the road. Travelling behind the Plaintiff was Mr Hagelstein, in a car which was towing a boat. Mr Hagelstein also applied his brakes, but ultimately collided into the rear of the Plaintiff, pushing the Plaintiff’s vehicle into another cow and trapping Mr Collis. As a result, Mr Collis suffered head injuries, neck injuries and psychological injuries. He cannot recall the incident.
His Honour accepted the accounts of the police at the scene, and of the Defendant driver.
Mr Hagelstein admitted his liability in negligence for collision with the Plaintiff’s car.
Mr Slater, who was the owner of the property on which the cows escaped did not admit liability.
Evidence was tendered against Mr Slater by way of a letter addressed to him from Council. The letter stated they intended to file an order requiring Mr Slater to fence the land that borders onto the Pacific Highway.
Further to this, evidence was tendered by way of file notes regarding communications between representatives of the Council and Mr Slater, one of which found a representative attending Mr Slater’s premises on the date the letter was issued, and finding a cow on the road.
Following the initial letter, a further letter was issued ordering the area that borders onto the Pacific Highway be fenced to an appropriate standard. This was ordered 6 days before the date of accident.
Two days later some Council officers attended the property to inspect the fences and photographs were taken which were tendered into evidence. The repairs were inadequate. Four days later the accident occurred.
The question of liability against Mr Slater is argued through the Civil Liability Act. With respect to this, His Honour found the following:
“The risk was foreseeable: indeed it was foreseen and drawn to the attention of Mr Slater. The road was, I agree, a major Highway…this was not insignificant. It was obviously a dangerous situation…a reasonable person in Mr Slater’s position would have taken precautions against the risk. Indeed, the precautions were a requirement of the local council.”
His Honour went on to say:
“It was unreasonable for Mr Slater not to take the precautions which he was required to take. It was a very specific risk. It was not a vast area and it was a relatively short boundary fence…I am satisfied that Mr Slater’s negligence was a necessary condition of the occurrence of the harm.”
Apportionment of Liability
Mr Hagelstein argued that a greater apportionment should be given to Mr Slater. His Honour agreed, but not to the extent in which Mr Hagelstein’s legal representatives submitted.
In his findings, His Honour considered:
“There were a number of factors about the accident which need to be taken into account. One if that Mr Hagelstein was entering a blind bend. Another is that he needed to keep a safe distance from the car in front of him, a third is that he had to maintain a speed which would enable him to stop in time.”
He went on to find that Mr Hagelstein was 35% responsible, and Mr Slater was 65% responsible for the accident.
Of importance was His Honour’s decision to award general damages, otherwise known as pain and suffering. It is important to note that these damages were available only against Mr Slater. The reason behind this is that Mr Hagelstein was negligent under the Motor Accidents Compensation Act whereas Mr Slater was negligent under the Civil Liability Act. The Acts have different ways of assessing damages for pain and suffering.
The Plaintiff required extensive medical treatment and has ongoing difficulties. The Plaintiff submitted his injuries were 40% of a most extreme case which His Honour agreed to. This is equivalent to the amount of $229,000.00.
All other damages totalled an amount of $952,979.00. Of this amount, the first Defendant, being Mr Hagelstein, was required to pay 35%, being an amount of $335,992.65.
Mr Slater was required to pay the different, being the amount of $619,436.89. On top of this, the Mr Slater was required to pay an amount of $229,000.00 for general damages.