Wandering Stock Liabilities

Farmer Abbot from Okato recently shifted some of his stock onto his run-off.


On the way home, Farmer Abbott noticed that the fence along the roadside was damaged at one end. He planned to return in the next day or two to repair the fence. The next morning, Farmer Abbot was informed that several cows from the paddock next to the road had wandered onto State Highway 45 during the night and several sheep from another paddock had wandered onto his neighbour's (Mrs Batty's) land and trampled her crops. What is Farmer Abbot's liability?

Stock on the road

Stock owners are liable for any damage caused by their stock wandering onto the road if the presence of the stock on the road is due to the owner's negligence, that is, where the owner has not taken reasonable care to prevent stock wandering, or to warn road users of the likely presence of stock. It is likely that Farmer Abbot would be found liable for any damage caused as he knew that the fence had been damaged, but he failed to repair it promptly.

The Animals Law Reform Act 1989 also sets out factors for determining whether an animal owner is negligent in allowing an animal to stray on to the road with regard to fencing. The relevant considerations under the legislation are:

  • the common practice in the area with regard to fencing and other measures taken to stop animals straying onto the road (such as cattle stops), and
  • any measures taken to warn users of that road of the likely presence of animals on the road.

Due to the nature of the road in question (being a state highway) and taking into account the fencing practices in the area, Farmer Abbot would be expected to have an effectively fenced property.

Damage to neighbour's crops

Where stock trespass onto someone else's land, the occupier of that land may claim damages from the stock owner in circumstances outlined in the Impounding Act 1955. The occupier cannot recover damages unless the occupier's land is adequately fenced to keep out the stock (or the lack of fencing did not contribute to the trespass).

To determine Farmer Abbot's liability for the damage caused to Mrs Batty's crops, we would need further information about whether her land was adequately fenced.

Other relevant considerations in determining Farmer Abbot's liability are whether Mrs Batty contributed to the damage, for example by leaving a gate open between her property and Farmer Abbot's property and how the sheep got onto Mrs Batty's property. Farmer Abbot may not be liable for the damage caused by the sheep if their trespass was due to an act of God or an act of a third person.

Other issues that may also be relevant in the case of wandering stock are the provisions in the Impounding Act around the impounding or destruction of trespassing stock and claims for trespass rates.

 

The content of this document is necessarily general and readers should seek specific advice on particular matters and not rely solely on this document.
If you would like more information on any of the topics in this document, please contact your usual Auld Brewer Mazengarb & McEwen adviser.
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