Settlement!
So as you may recall, 13 months ago I was out driving when I encountered about a dozen cattle on the roadway, which totalled my car. Around about 7 months later the farmer's insurance company finally concluded that it wasn't their fault.
They said one cow was an "act of god" as it may have jumped the fence. So I sent them a picture of the dozen other cattle on the road. And they wrote back saying it was unprovable that the other cattle belonged to their client, and they additionally cited a bunch of case law they claimed supported their position. At that point I'm sure they expected me to succumb to being bamboozled by all the legalese and case law. But this actually gave me a bit of satisfaction, as I researched the cited cases and cited them right back to them, plus a few more, as to why they did not have a legal argument that would stand up in court and should settle (once upon a time long ago I was very pre-law so this was a taste of the life that could have been). I am quite pleased with this email:
Hi Preetee,
Sorry for the delay I was abroad until recently. I once again thank you for taking the time to explain your arguments to me. I remain hopeful that further discussion of this might render legal action unnecessary.
To review, it is mutually agreed that I collided in front of 3220 Cape Otway Highway with one cow belonging to your client Bonnie View Ag Pty Ltd, and that that one cow was in company of numerous other cattle on the road at the time, and that said collision resulted in serious damage to my car.
You previously stated that one cow may have jumped a fence, which would not impose a failure of the duty of care of your client since cows may do that despite reasonable care being taken, as specifically occurs in Gregory’s (Properties) Pty Ltd v Muir (1993).
I offered the photograph of other cows on that same roadway at that same time as evidence that this was not the unusual act of one cow but something that could have only occurred if a gate had been left open as it would be improbable many cows simultaneously jumped the fence. You countered that these other cattle aren't provably your client's cows, but I fear this argument loses track of the significance of the other cattle -- their significance isn't that they caused the damage, we know your client's cow caused the damage; their presence is evidence of the unlikelihood that the one cow jumped a fence in contravention of reasonable precautions. Ie, the argument seems to be that your client's cow jumped a fence while a multitude of other owner's cows all independently also jumped other fences, chose to congregate in front of your clients property, and readily proceeded into your clients property through the open driveway gate when I shooed them off the road -- this is significantly _less_ plausible than that all the cows together left your client's property and loitered just in front of it. I would imagine the burden of proof here is preponderance of the evidence and it certainly preponders as most likely that they all exited a gate.
I left the cattle on your client's property -- if your client could say they returned a herd of cattle from their property to a neighbor it might help their case but of course they cannot say that because we all know that did not happen.
Adding to the implausibility of any other circumstance, I have visually inspected the roadway and looked at the area from google satellite view and find that (1) the property south of the road has two layers of fence between their cattle and the road; (2) no property other than your client's (3220-3390 Cape Otway Highway) has any gates within 430m of the site of the incident (and that's just a gate to small property not used for cattle, the next closest east is 880m away. To the west the nearest gate that's not clearly part of the Bonnie View farm is 2.17 km away, while your client has at least five within 100m of the incident site.)
So any explanation other than that an employee of your client failed to secure a gate is implausible to the point of absurdity. An employee of your client failing to secure a gate is a failure of your client's duty of care and therefore strict liability for damages falls on your client as tortfeasor.
I have examined all livestock / animal-on-roadway / domestic-animals-causing-injury Australian caselaw that I could find without accessing a law library (Mirvahedy v Henley [2002] QB 769 (Eng CA); Jaundrill v Gillett (1996); Cummings v Granger [1977] 1 QB 397; Breeden v Lampard (1985); Curtis v Betts [1990] 1 WLR 459; Gloster v Chief Constable of Greater Manchester Police [2000] PIQR P114; Wallace v Newton [1982] 1 WLR 375; Hunt v Wallis [1994] PIQR P128; Flack v Hudson [2001] 2 WLR 982; and in every circumstance where the owner was not held liable it was because the animal exhibited an unexpected and unanticipated behavior that counteracted the reasonable precautions taken. It is not unexpected that cattle would exit an open gate and potentially cause serious injury on a roadway, or to quote the Animals Act of 1971 "Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage ... if the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal was likely to be severe"
The blue book value of my car had the accident not occurred is estimated to be $6,600 (by carsales.com.au). The current value of the car due to the incident, according to a wrecker's recent offer is $500. I'm asking for and entitled to the difference, $6,100. This isn't a large amount, this isn't a $50,000 car, and we're all lucky I wasn't seriously injured though I very easily could have been. But it's a large enough amount that I'm not about to drop the matter. I welcome you to cite further case law or other arguments as to why you should not be paying me $6,100 on behalf of your client, which I'll very happily thoroughly examine, but otherwise I will pursue this matter to court and you or your representatives can argue before a judge that multiple independent cows all jumped fences, loitered on the roadway in front of your client's property, and were then left on your client's property without anyone else ever claiming them.
Thank you, I sincerely appreciate your willingness to discuss this matter.
Sincerely
Kris Fricke
Then they didn't respond for a week so I engaged a lawyer of my own. They estimated it could potentially cost $8,000 if the case goes into litigation, which you'll note is more than is in dispute, but I was feeling stubborn about not letting the insurance company get away with this. And if I won the other side would have to pay my legal fees, but if I lost I'd have to pay theirs or if it settled without going to court I'd be stuck with my own legal fees ... so it was all not without substantial risk.
For the next few weeks it slowly progressed, with the occasional question about this or that from my lawyers. Then this past November 21st I received an email from the other side saying they were ready to settle but couldn't get ahold of my lawyers, and they had about a page of extremely quibbling questions about why we had revised the amount we were asking for from $6,100 to $6,300 and some other inconsequential quibbles about things that had been explained in context at the time, and including "You initially submitted 2 quotes for repairs of the vehicle: [...] Therefore, the vehicle was repairable."
I don't know why my lawyer was AWOL, Ii couldn't get ahold of him either, though the firm seemed in the midst of changing their name and stuff. Anyway, once I got ahold of my lawyer again and confirmed they were still on it I sent this extremely satisfying email to the other side:
Hi Preetee
Yes i am still represented by them. Please be aware that they have changed their name to Sewells Lawyers and their email addresses now end in that name, eg [...]@sewellslawyers.com.au
As to your earlier question expressing confusion that I had submitted repair estimates and also the value of the car; the universal definition of a totalled car is when the cost of repairs exceed the value of the car. Hence yes it's theoretical "repairable" but totalled nontheless. You are welcome to reimburse me the $7,063.82 average repair estimate rather than the $6,300 vehicle value estimate if you feel strongly on that point though.
I presume you actually know the definition of a car being totalled and are in less-than-good-faith trying to vexatiously waste my time. I would thank you not to do so.
On any account please direct further correspondence to Shaun at Shelley Lawyers and please do not waste his time.
Thank you,
Sincerely,
Kris Fricke
And about 48 hours later I had an email (from someone else at their firm) with a solid settlement offer of $5,800. I confirmed with my lawyer that this was a good idea, and then immediately signed and submitted it to them. And the money has arrived in my account just today!
AND there was one last concern, how much did I owe my lawyer? I feared it might be at least a significant portion of $5,800 ... nope it turns out I owe my lawyer $418.
So in conclusion conclusion, while this was all very regrettable, it caused me an undue amount of stress (honestly I mean it wasn't like it ruined my year but it collectively made me feel annoyed and/or in a bad mood for several dozens of hours), and having to drive a smashed up car, deal with mechanics, shop for a new car, and all that came with that was just as irksome, and of course let us not forget the poor deceased cow, but I did get some enjoyment from the opportunity to send the other side snarky rejoinders. It's unclear how much of winning my case was actually my own doing and how much was my lawyers -- I think the other side wasn't prepared to take a non-lawyer seriously but I don't think my lawyer really did particularly much other than deliver my arguments on letterhead. Anyway, I cynically don't generally expect things to shake out in my favor but in this case, at the end of the day, I won!