SUPREME COURT OF QUEENSLAND 

[1]  McMURDO P:  I agree with Keane JA. 

[2]  KEANE JA:  The appellants are the first, second and third defendants in an action brought by the respondent to recover damages for personal injuries suffered by him on 17 April 2002.  The respondent was injured when the loaded fuel tanker he was driving overturned while he was attempting to avoid cattle which were crossing the Kennedy Highway in the vicinity of Innot Hot Springs.  The appellants were the occupiers of a nearby property where they carried on the business of grazing cattle.  For present purposes, it is common ground that the cattle on the highway were owned by the appellants.

[3] The respondent, in his amended statement of claim, asserted that the appellants were liable for his injuries in negligence or nuisance by reason of the presence of their cattle on the highway.

[4] The appellants applied for summary judgment in the action pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR").  Alternatively, the appellants sought to have the respondent's amended statement of claim struck out as disclosing no reasonable cause of action. 

The issue

[5] The basis for the appellants' application was the rule in Searle v Wallbank[1] which, as was explained in State Government Insurance Commission v Trigwell,[2] is to the effect that an occupier of land adjacent to a highway is:

"under no legal obligation to users of [the highway] so to keep and maintain his hedges, fences and gates as to prevent animals from straying on to it, and that he is not under any duty as between himself and users of it to take reasonable care to prevent any of his animals, not known to be dangerous, from straying on to it". 

The appellants relied upon the decision of the High Court in Trigwell[3] as confirming the continuing vitality of the rule in Searle v Wallbank as part of the common law applicable in Queensland.

[6] The learned primary judge dismissed the appellants' application.  His Honour took the view that "it is not possible at this time to be assured that the rule" in Searle v Wallbank applied in the circumstances of the respondent's claim.[4]

[7] On appeal, the appellants argued that the respondent's pleading itself demonstrates that the rule in Searle v Wallbank clearly applies in the circumstances of this case to deny the respondent any possibility of success in his action.

[8] In this regard, the respondent's amended statement of claim alleges that the appellants "permitted significant numbers of cattle" to be on "the land adjacent to the bitumen surface of the Kennedy Highway" and to cross and recross the highway thereby causing "significant obstruction to traffic using the Kennedy Highway and thereby committed a nuisance upon the Highway".  The respondent alleges that the land adjacent to the bitumen surface of the highway is also part of the highway.  In response to a request for particulars, the respondent alleged that the appellants "maintained not less than 20 - 30 cattle on the road reserve adjacent to the Kennedy Highway".

[9] The respondent alleges that his injuries were caused by the negligence of the appellants in:

(a) failing to erect fencing between their property and the highway;

(b) allowing or permitting stock to graze on the land adjacent to the bitumen surface highway, that is on the road reserve, and to cross and recross the bitumen surface of the highway unsupervised when they knew or ought to have known that the cattle caused a significant obstruction of the highway;

(c) failing to manage or supervise the cattle pastured on the station so that they did not move onto the highway and obstruct the traffic using the highway.

[10]  The appellants contend that the case so pleaded is bound to fail because of the immunity conferred on them by the rule in Searle v Wallbank. 

Discussion

[11]  The decision of the High Court in Trigwell shows that the appellants' contention is clearly correct, insofar as the respondent's case is based on the allegations of the appellants' failure to fence or manage their cattle to prevent them straying onto the highway.  In Trigwell, the sheep which caused the collision in which the plaintiff was injured came from a paddock adjoining the road through gaps in the fence of which the defendants were aware.  The defendants were aware that their sheep were on the side of the road on many occasions in the weeks before the accident and regularly left the paddock, grazed at the side of the road and crossed from one side of it to the other. 

[12]  The decision of the High Court in Trigwell is relevantly indistinguishable.  That means that the appellants must be held to have owed no duty of care to users of the highway to fence or to take other steps to prevent their animals from straying onto the highway. 

[13]  Furthermore, as was explained in Trigwell, liability in nuisance cannot arise from the same facts because the rule is of general application so far as tortious liability is concerned, and:[5]

"[t]o hold that there is a liability in nuisance for injury caused by straying animals, despite the immunity otherwise conferred by the rule in Searle v Wallbank, would do much to subvert the operation of the rule itself".

[14]  The respondent argued that his case is outside the rule in Searle v Wallbank in that he alleges that the appellants brought their cattle to the highway knowing that they would move onto the bitumen strip, thereby obstructing the use of the highway by others. 

[15]  Such an argument may be theoretically viable.  In Deen v Davies,[6] Romer LJ said: 

"… [I]t has been clearly established that the owner of an animal who brings it on to the highway does owe a duty to those who are using the highway to use all reasonable care to prevent the animal damaging other parties." 

In Trigwell, Deen v Davies was described by Mason J as a case which concerned the question "whether the rule in Searle v Wallbank has any application at all when the animal which causes injury to the plaintiff has been brought by the defendant on to the highway".[7]   

[16]  In the light of this argument, the reluctance of the learned primary judge to terminate the respondent's case summarily is understandable.  If the appellants knowingly brought the cattle to congregate in a particular area of the road reserve of the highway, there is an arguable case for the non-application of the rule in Searle v Wallbank.  Insofar as it is open to the respondent, on his current pleading, to argue that the appellants actively directed their cattle to a point adjacent to the bitumen surface of the highway so as to cause them to move onto it and to obstruct it, the rule in Searle v Wallbank might not mean that the respondent's case will inevitably fail.  The respondent's case would not, in these circumstances, be about damage caused by straying animals.  The argument for confining the scope of the rule to deny an occupier immunity in such a case is not precluded by authority binding on this Court.  The dicta in Deen v Davies to which I have referred suggest that the rule is informed by considerations relating to the extent of control exercised by the owners of the animals over their movements; and there is certainly something to be said for the view that the operation of the rule should be confined rather than expanded.[8]   

[17]  It must also be acknowledged that the rule in Searle v Wallbank might ultimately be held to apply.  The rule's historical rationale, recognised in Trigwell, was that "the experience of centuries has shown that the presence of domestic animals upon the highway is not inconsistent with the reasonable safety of the public using the road".[9]  The rule, so understood, reflects the opportunity and responsibility of one user of the highway to avoid collision with another user of the highway.  There is thus room for debate as to the theoretical extent of the immunity conferred by the rule in Searle v Wallbank.

[18]  The first question which requires to be addressed in this case is whether the respondent has pleaded a case which might be supported by the dicta in Deen v Davies cited above.  The respondent's amended statement of claim alleges that the appellants "allowed or permitted significant numbers of cattle … to be … upon the land adjacent to the bitumen surface of the Kennedy Highway … and to cross and recross the road … thereby causing significant obstruction to traffic".  Senior Counsel for the respondent argued that it is implicit in this allegation that the appellants acted knowingly or deliberately to bring their cattle to the location in question on the road reserve, and that the appellants kept or maintained their cattle in that location whence they moved onto the bitumen surface of the highway.

[19]  The difficulty which confronted the learned primary judge in this case arose, to a considerable extent, because of the ambiguity involved in the use of the language "allowing or permitting" in the respondent's amended statement of claim to describe the acts or omissions of the appellants which led to the obstruction of the highway.  The use of this language meant that the respondent was able to claim to be advancing a case that the appellants exercised active control over their cattle to direct them to, or keep them at, the point on the road reserve where they moved onto the bitumen surface.  That claim is, in my respectful opinion, less than convincing.

[20]  There is, of course, a degree of uncertainty in the words "permit" and "allow".  That uncertainty can be illustrated to some extent by reference to the division of opinion in the House of Lords in Tophams Ltd v Sefton.[10]  In that case, the defendant had covenanted that it would not "permit" a particular form of development to be carried out on its land.  The defendant sold the land in question to another party, knowing that the purchaser intended to develop the land in that way.  Lords Hodson, Guest and Upjohn held that the expression "permit" connoted a measure of control, and that, the defendant, by selling the land, divested itself of any authority in respect of the land.  Their Lordships held that it could not be said that the transfer "permitted" the forbidden form of development because, after the transfer was effected, the defendant had no control over the development of the land.  Accordingly, the majority held that the covenant was not breached. 

[21]  Lords Reid and Wilberforce took a different view.  As Lord Reid said:[11]

"The appellants argue that a person cannot be said to permit anything unless when that thing happens he has some right or power to prevent it:  here when the purchaser from the appellants begins to use the land for building, they will have retained no right or interest in the property.  I would not deny that in some contexts the word 'permit' has that limited meaning, but in my view the word often has a wider meaning.  Suppose I know that a stranger intends to trespass on and damage my neighbour's property if he can, but he cannot unless I remove an obstacle which is under my control.  If I remove that obstacle with the purpose that he shall be able to do as he wishes, then it appears to me to be a perfectly ordinary use of the English language to say that I have permitted him to trespass.  To permit can mean more than to issue a permit or licence."

[22]  While the protean operation of the words "permit" and "allow"[12] may be controlled by context, no such limitation is supplied by the terms of the respondent's amended statement of claim.  In the context of the rule in Searle v Wallbank, a failure to take action to prevent cattle straying onto a road is at the very heart of the immunity:  an owner who takes no action to prevent them straying may be said to "permit" them to stray without losing the protection of the immunity.  The view of the minority in Tophams Ltd v Sefton shows that, in some contexts, the words "permit" or "allow" may mean more than a failure to prevent an object from behaving in a particular way, and may extend to the facilitation of movement which could not otherwise occur.  It is clear, however, that further expansion of the scope of the words "permit" and "allow" is necessary if the respondent's pleaded case is to be understood as involving the allegation that the cattle in question were deliberately directed by the appellants to an area where they were actively kept or maintained, and, whence, they were caused to cross onto the bitumen surface of the highway. 

[23]  In my respectful opinion, so expansive an understanding stretches the words of the pleading too far.  The respondent's pleading is more consistent with a mere failure on the part of the appellants to take action to prevent the cattle from moving onto the road.  Such a failure is, as I have noted, at the core of the immunity conferred by the rule in Searle v Wallbank.

[24]  The uncertainty as to the nature of the case which the respondent seeks to make against the appellants is distinctly apt to embarrass the fair trial of the action against them.  To say the least, the pleading is embarrassing by reason of the lack of clear and explicit statement of the facts relating to the nature and extent of control exercised by the appellants over the cattle which came to obstruct the highway.  For that reason alone, the respondent's amended statement of claim should be struck out against the appellants.   

[25]  The question which then arises is whether the respondent should be given the opportunity to replead. 

[26]  The respondent has already had an opportunity to replead with particularity the case he wishes to make at trial.[13]  It is not apparent from the argument on the hearing of the appeal that the respondent's pleading would benefit from yet another opportunity in that regard.  It does not appear that the respondent is able to plead facts which would establish the case that the appellants actively brought their cattle to the location from which they moved onto the highway or actively caused them to be kept there.  In particular, nothing was said in argument to suggest that the respondent is able to plead facts showing that the presence of the appellants' cattle on the bitumen surface of the highway is explicable by the active exercise of direction by the appellants over their cattle.  The presence of the appellants' cattle on the bitumen surface of the highway is entirely consistent with a failure on the part of the appellants to prevent the egress of their animals onto the highway.  That failure was held in Trigwell to be squarely within the immunity conferred by the rule.

[27]  In these circumstances, there is no good reason to give the respondent leave to replead.  That would be an exercise in futility.  The respondent's action is bound to fail against the appellants.  It is best to bring it to an end now. 

Conclusion and orders

[28]  The appeal should be allowed.  The orders below should be set aside.  The amended statement of claim should be struck out and the action dismissed insofar as it relates to the first, second and third defendants.

[29]  The respondent should pay the appellants' costs of the action and of the appeal.

[30]  HOLMES JA:  I agree with the reasons of Keane JA and the orders he proposes.