The Rural Voice, 2006-11, Page 50Agri law
Trucks vs. cows — who is liable?
Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highlev LLP.
By Paul Vogel
When cattle escape onto a high
speed, limited -access four -lane
highway, who is responsible for the
resulting damage?
In a recent Alberta case, a tractor
trailer unit carrying oilfield
equipment was travelling on a snow-
covered provincial highway at 3:00
a.m. with restricted visibility when
the truck struck a cow owned by the
defendant causing substantial damage
to the truck. At the time, a herd of the
defendant's cows had escaped
through an open gate and were all
over the highway. The owner of the
truck sued the defendant for repair
costs alleging both negligence and
liability for cattle trespass.
In considering the issue of the
defendant's possible liability, the
court commented:
"The characterization which a
court puts on a set of facts often
dictates the outcome. Never more
so than in this case where the
plaintiff's truck received extensive
damage when it ran into one of the
defendant's cows in a blinding
snowstorm in the middle of the
night on Highway 2 south of
Nanton, Alberta.
Two characterizations which
might be placed on the facts of this
case could lead to completely
opposite outcomes. If this case is
characterized as a classic case of
cattle trespass, liability might be
found even in the absence of fault
on the part of the defendant
rancher, and considerations of
contributory negligence on the
part of the plaintiff driver may or
may not be relevant. On the other
hand. if the facts are characterized
46 THE RURAL VOICE
as being those which give rise to a
claim in negligence, then liability
may not be found absent fault on
the part of the ranchdr; and
considerations of contributory'
negligence on the part of the
plaintiff driver are not only
relevant, they may be
determinative."
With respect to possible
negligence of the defendant farmer,
the court determined that the
defendant's cattle escaped, not
because of any inadequacies in his
fences or gates, or failure to conduct
adequate inspection, but because
some unknown third party had
opened the gate and failed to close it.
In these circumstances, the court
held:
. to the extent that the
plaintiff's claim is based in
negligence, I believe it must fail
because I don't believe the mere
presence of the defendant's cows
on the highway is sufficient to
establish negligence. Even if the
presence of the cattle, on the
highway was enough to establish
negligence, the plaintiff had the
additional problem of its driver
admitting that he couldn't stop in
the distance he could see. Over-
driving one's headlights has been
found to preclude or reduce
recovery by plaintiffs who hit
cattle on the highway."
The court then continued to
consider the potential liability of the
defendant for cattle trespass. The
court stated:
"The text books tell us that a
defendant whose cattle strays onto
his neighbour's land commits a
trespass. And where that straying
causes harm, the' defendant is
liable for that harm without proof
of negligence ... if a rancher's
cattle stray into a neighbour's
field, the rancher is liable for the
neighbour's crop loss. The
niceties of negligence are ignored.
It doesn't matter how his cattle got
into his neighbour's field, the
rancher is liable for the crops the)
ate or trampled or the prize cov.
that was impregnated."
However, the court determined
that a private individual such as the
plaintiff can have no right of action
for trespass upon a public highway
owned by the provincial Crown. The
court held:
" ... trespass is a wrong against
the possession of land, not
necessarily against ownership. To
succeed, the plaintiff must show
that he was in possession of the
land allegedly being trespassed
upon. Could the plaintiff in the
case at bar be considered to be in
possession .of the land? Clearly,
the Crown owned the highway
right of way. The plaintiff may
have been in an invitee or licencee
of the Crown. But would that put
him in possession? I think not.
Highways are public rights of way
The plaintiff had no better right to
utilize this road than the defendant
'had. But the defendant wasn't a
user of the highway in this case.
He was the owner of live chattels
which inadvertently got out onto
the road and caused an accident
and attendant damage.
... But can persons in the position
of the plaintiff in this case
maintain such an action in
trespass? I think not, although I'm
not terribly comfortable with my
conclusion or the rationale
therefore. The law is simply not
clear. However, the reason I don't
believe the plaintiff can
successfully maintain a cattle
trespass action is that it lacks
possession of the land upon which
the `trespass' has taken place.
Ownership, control, and
management of the highway
remains in the Crown. The
motorist. the plaintiff's driver, is
simply a user of the public right of
way. I hesitate to say he