SUPREME COURT.

Hokitika Guardian, 26 July 1923, Page 4

SUPREME COURT.

KOKATAIII BULL CASE. JUSTICE ADAMS’ JUDGMENT. At the Supremo Court yesterday tho Acting-Registrar read the following judgment of 11 is Honor Justice Adams, in the ease of Urederick C. Marshall, -appellant, and Jane Baird, respondent. Messrs Bark and Murdoch for appellant. Mr Paterson for respondent. This i- an appeal on law and fact from a decision of the Magistrate’s Court at Hokitika. The appellant and respondent are iluii'v farmers at Kokatahi in the County of Wet land. On the night of the Oil January the defendant's bull trespassed upon the plaintiff's farm, and early next morning was found in the appellant's bull paddock in which his hull was also found lying in a creek v. ith his leg broken. The fiction was

brought for L'los damages, and in his particulars of claim the appellant alleged that the respondent negligently allowed her bull to trespass on bis land and injure bis bull : or alternatively. that the defendant well knowing that, her hull was mischievous and was likely to injure the appellant’s bull, allowed her bull to trespass on appellant’s laud with the same result. After the hearing the Stipendiary Magistrate gave judgment for the delendant with CIO -Is costs.

The Magistrate held, and it was contended on this appeal, that, the appellant’s land being unfoncod, any right he might have had at common law to recover damages in respect of the tiospass was taken awitv by Section 5 of the Impounding Act, 100;'. Olsen a . Bailey—o N'./.L.R. 71.’’., and Oaynor v. l/icov 1920, G.L.R. 205, were cited its inti horitie.s for that but both these cases relate Lo land in districts in which Section 5 is in force. Section 7 however provides iltni Sections 5 and 0 .-hall not. have operation within the Provincial Districts of Nelson, Marlborough. Westland and Otago, but that in lieu thereof the provisions set forth in th(‘ appendix to the Act and marked A and Ik shall he in force respectively as in the appendix mentioned as il enacted therein. The Governor is cm powered, on resolution passed by any local authority within these Provincial Districts, to declare Sections 5 and fi to be in force in the districts of such local authority, but no such proclamation has been made affecting the County of "Westland within which the lands of tho appellant and respondent are siutalod. Section 5 therefore has no application. It was then argued that 1 1'” proviso to para. Ain the appendix having been lirst enacted in the Fencing Act Amendment, Act as an amendment to the Impounding Act, |Ss.|_ appendix para. A must now lie re-gardo.-l as an amendment of the same para, in tho appendix in the Consolidating Act of IP'IS. and so regarded, tiiu-t be read as taking away tho common lav. right in the same manner as Section 5. It was put in this way lirst. the amendment bv the proviso was intended to alter the law, mile - the proviso a.- so amended is read as taking awav the common law right of action in respect of trespass by cattle on un-foner-d land and substituting I lie slatelory remedy under the para.. the amendment did not alter the law; therefore the para, must be s-o read; and secondly, that the words in para.’ A "or he may claim in any Court. . . . full satisfaction for an actual damage sustained by him in eon, sentience ol such trespass’’ takes away the common law right as regards every trespass by cattle on land, and substitute the - ame right under the statute in the ease of fenced land only. As to the lirst point, it is evident that the omission ol the words 'or iinfeuced' from the first line of the para. lakes away from the occu pi; v of liiilenct’d land the right of impounding and claiming trespass rales under the second schedule. But tlm

real answer in t! it* :t r.sj a tin • 11 1 is that the proviso has i»«i other effect than. in r--1, 11 iI f li.v I>lli i - :>l< 1 1 > ul till- UHI welds in the ea-e nt lands within I in; counties named. It is only a shun minis' ot’cnnetiim two iliJl'i'/'iun provisions npplioa'de In different localii :os. When do;dii’.; with laud v.ilhin any n: t.iio dist riels named ill I lie jimvi-’O para. A is to lie read as if l lie w ords 'or unl'enced' had never liven inserted. The omission of those words limits Ihe provisions of the [tarn, lor those Comities to fenced

lands hut has no other c (feel. The pari, of the para, ipioird applies only to foneed land, and is .-imply declaratory 'f l lie common law. Section li eon lain s' exactly the same words, while (section e expressly provides that the occupier of any imfeneod Itiml shall not he entifle:l to recover any damages whatever hy reason of the trespass thereon of any cattle, except the fees mentioned in the second schedule. Statutes are not presumed to make any a Iteration in the common law further or otherwise than the Act does expressly declare. Arthur v. Bokenhani I I Mod, ITS; pier Telford ( . J., ]). loti; Kendall v. Kean to C.D., per I’o'.vou, I.'. d., 100. If the intention had heen as sutriicsted there was no

reason why (he negative words in Section should nol have been inserted in tlie appendix. hi my opinion the words ore inserted ex niuiore eautela and in order to make it clear that the right to recover the trespass rates given in Section d and the appendix was not in substitution for the common law right of act ion. The result is that the occupier of unfoiiced land in the Counties named in the appendix may bring his action in any Court of competent jurisdiction for all actual damage sustained by him by reason of the trespass by cattle thereon. The Magistrate lias round that the appellant's land is in fact nnfenccd and j it is admitted that the respondent's, hull did in fact trespass upon that. land j ns alleged by the appellant. Ji is found by the Magistrate that the hull made ) bis way to the paddock in which (he j appellant kept his hull and Hint in rhr* morning the nppelhint”s hull was found • in a creek with its leg broken. There j are therefore only two .'niestions (o tic i determined—(a) Wore the injuries to the appellant’s hull inflicted by the | respondent’s hull, and >h) if so. what i damages is the appellant entitled to re- i cover. I.ee v. Hiley—34 L..T.C.P. 212 : J Tfllis v. l.oi'tus Iron C’o. 1.. R. 10. O.P. j 10; Xanton v. Broeklehank—lo23, 30, | T.T..TT. 314; reversing the decision of, the Divisional Court reported in 1023 1, K.R., 403. In each of these eases it was held that the owner of an animal which trespasses on the land of a stranger is liable at common law for any damage done bv the animal while so trespassing, including that arising from injuries inflicted upon other animals. The damages recoverable include reasonable compensation for all damage directly resulting from the wrongful act. Tn re Polemis and Furness Withy and Co.. 1021 3. K\TT. 3(10. ; I lie Magistrate was of opinion that if was not proved tiiat the injuries to the appellant’s hull were inflicted by the respondent’s hull. The. appellant says that he actually saw the two Hulls fighting in his paddock. If that evi- ' deuce was true there can he little doubt that the appellant was entitled to judgment." But n witness named Irvine, who was in appellant's service at the time but left his service some time before the hearing of the action, was called by the respondent, and said that when he went nut for the rows in the morning he saw respondent’s hull ; that the appellant’s hull was not then in the same paddock—that he returned and told appellant’s wife: tiiat appellant afterwards went down to the paddock and came hack and told him his bull was in tlie creek; that he and appel-

lant went to the c-reek together and lie then saw the appellant’s bull in the crock with its leg broken, the respondent’s bull being at the other end of the paddock—that there were then no marks on the bull’s bide, but that after the bull was brought up front the creek the marks were there. The inference from this evidence is that the appellant had himself made the marks on his bull’s hide and that his story of a fight was fabricated. In bis judgment lb Magistrate describes Irvine as a reliable and disinterested witness, and accepted his evidence as wholly discrediting ihc appellant’s evidence as to the fight. T am therefore called upon ns was the Judicial Committee in Khoo f'it Holt v. Lint Thean Tong—l9l2 A.C'. 'l. to express an opinion on the credibility of witnesses whom T have not seen, heard, or questioned. The Judicial Committee say in that ease rp. 325) "In coining to a conclusion on such an issue their Lordshins must of necessity be greatly influenced by tile opinion of

t!ic learned trial Judge whose judgment is itself under review. Ife sees the demeanour of the witnesses, and can estimate their intelligence, position and character in a way not open to the Courts who deal with later stages of tlicense. Moreover, in cases like the present, where those Courts have only his note of the evidence to work- upon, there tire many points which, owing to tho brevity of the note, may appear to have been imperfectly or ambiguously dealt with in the evidence, and yet

were t*liificlined to (lie* Judge’s satisfaction at the trial, cither hy his own questions or hy the explanations of Counsel given in presence of the parties. Of course, it may he that in deriding between witnesses lie has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of tbe evidence, or lias given credence to testimony, perhaps plausibly put forward, which turns out on more careful analysis in be substantially inconsistent with itself, or with indisputable fact, but except in rare eases of that character, cases which are susceptible of being dealt with wholly by argument, a Court of Apnea! will hesitate long before it disturbs tbe findings of a trial .fudge based on verbal testimony.” That passage very clearly slates the rule always observed in such eases and tbe reasons for the rule. But if, alter careful consideration tbe Appellate Court is satisfied that the ease falls within the class of exceptions indicated in the In -1 sentence of the passage, there should he no hesitation in finding the facts accordingly. Now it was proved that previous to the hearing, Irvine had accompanied the appellant to his solicitor’s office and there made a statement which was taken down in writing and signed by him. In that statement he says: ".Marshall (appellant.* went over to

(In' creel; and came back. lie I old im: Ills bull was in the creek. I then went over to the < reek with Marlisall. 11l (the hull) was down. We gut him on In the bank ourselves and found his leg broken. I am sure it was broken before we touched him. We could see by the ground that the bulls had been scufiling. You could see scars on .Marsh til’s bull's back evidently done by the other bull. Baird's (respondent’s) bull was threatenin'; to come back and attack Marshall’s bull, so I stayed and l;cn! hint away while Marshall went for .Matt Baird, j had to keep Baird’s bull away." Thai statement strongly eorrobmales the evidence of the appellant, and flatly ( out radiels tlm ct idence of I n ine. In explanation Irvine said that he went to the .solicitor's oflice la cause the appellant I'eftl-wd to Itay him his wages unless lie went tin re and made a statement to bis solicitor, lie docs not appear to have suggested that the si mtueiit was not otherwise voitmian, an I lite appellant was not eruss-ox.ummoi! about the alleged conversation leading up to it. Whett a. witness I,as made and sinned such a statement and given

it in tlu> solicitor cnjiiifred in the east hnnwiny that it was licinjr actepted Tty the f- ilicitnr as a t rut 1 1 i ill st a. lenient. *1 'nil all CJ'tt 'Mils 111 the uiltK'ss lm\ pre scuts another ~tnrv so inconsistent that one or oilier linisl tie inl'-i', his evidence is open lo tile pravest sllspicion. The Magistrate does not refer to this statement or lo the sii-niiicirtl tact that Irvine admits that when lie returned to the paddock v.ilh I lie appellant his hull uas in i lie creel; wit It its lee broken, and i hal there were irnnlts of a scullie.

! (ellilol help J 1 1) 11 1< iH <X lllill ii tliC-c 1 1:i<I IK-i'ii present hi In- mind when writing lii.-- judgment lie would have riilllls-nI!-d upon fllem and would have recognised tin* danger of iel yi n<-; upon 1 r\-iin-’< evidence. Tien I hi.* Magi-tr.'iie Inis apparently not given any weight to the evidence oi tlio independent wit nesses Mold;, Thompson mid Cunning. Mo duos not i”. i'll mention t In-in in liis judgment, Mr M.uiik. ;i neighbonring farmer. soys 1 1 1;11 li e respondent's -mi ramc.lo Ids limin’ mid stlid 111 him, "My hull :md Marshall's have been lighting mid Marshall's hull Inis broken ils ieg. That lie unit down. Marshall was trying lo pull hull out id (Ti’C’k. Was lying oil side with broken ley. There were rips oil it. Probably made by another bull's | horns. ... I ipiite believed there bad been a bull tight." Respondent's son said on eross-exaininal ion that Monk's evidence was eorreci. (mining, another farmer, saw the appellant's bull oil l lie sledge before it was taken from tlie paddock, lie says "When I Hot down bull on sledge, bin mark on flank ol bull, not by barbed wire which eiti.s; it was a horn mark, broad mark with hair oil’, burn mark, break ol lego might have been caused by a fall." Thomson, also a farmer, saw the hull at the same time. Me says the marks on him were too broad for barbed wire and lie would have expected it to have been ripped more after a Ji”lit with another hull. If. however, the attack was made on the edge of the hank, where tile marks of the struggle were seen, it is probable that the bull was pushed down into t he creek and l lie ley broken by the fall. There was a horse in the paddock but there is no siiyy-siiim that the horse had interfered with the hull. The Magistrate has found that it is only natural for hulls to Jilt l ll when vows are near a- was the fact in this ease. Then it i> obvious from .Mr Monk’s evidence and bis own that the respondent’s -on after seeing both hulls and having an opportunity of inspoel- | iny the ground and the marks believed that the bulls bad been lighting. H is I in my opinion clear that if due consideration is given to all the evidence and particularly to that of the independent farmers, the only rea«onahe inference to Ijo drawn i- that the injuries to the appellant's hull were inflicted by the respondent’s hull. The appeal is therefore allowed with costs to the appellant L'l2 12s. and disbursements: and the ease will be remitted to the Magistrate to assess the" damage.' for which judgment will be entered for the appellant with the proper costs in the Magistrate's Court including disbursements and witnesses' expenses.