Bennett v Richardson & Richardson
[2000] QDC 162
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- Unreported Judgment
- Bennett v Richardson & Richardson[2000] QDC 162
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Bennett v Richardson & Richardson[2000] QDC 162
Bennett v Richardson & Richardson[2000] QDC 162
DISTRICT COURT | No D3761 of 1999 |
CIVIL JURISDICTION
JUDGE BRABAZON QC
ROSLYN BENNETTPlaintiff
and
NELL RICHARDSON and MARIE RICHARDSONDefendants
BRISBANE
DATE 18/05/2000
JUDGMENT
HIS HONOUR: This is an application for judgment pursuant to Rule 293(1) by defendants on the ground that the plaintiff's proceedings disclosed no reasonable cause of action. The argument raises the continuing application in Queensland of the decision in Searle v. Wallbank (1947) Appeal Cases 341.
In State Government Insurance Commission v. Trigwell (1978-79), 142 CLR 617, the High Court of Australia established, in effect, that the decision in Searle v. Wallbank was part of the common law of Australia. The majority affirmed the continuing existence in this country of the principle, that the owner or occupier of a property adjoining the highway is under no legal obligation to users of it so to keep and maintain hedges, fences and gates as to prevent animals from straying onto it. The owner or occupier is not under any duty as between himself and users of the highway to take reasonable care to prevent any of his animals, not known to be dangerous, from straying onto it.
As Mr Justice Mason explained, it was not correct to approach the liability of a defendant for injury caused by a straying animal on the footing that the general principles of negligence were applicable. As he said, a common law rule which confers immunity, albeit a qualified immunity from such liability, is an exception to the ordinary principles of negligence. It negated the existence of a duty of care.
The exception of which his Honour spoke was a reference to special circumstances. The special circumstances, as an exception to the immunity, relate to knowledge by the owner of a vicious or mischievous propensity in the animal which strays onto the highway and causes injury.
Counsel say, that in each State of Australia except Queensland, the rule in Searle v. Wallbank has been abolished by statute. In Queensland, there was a hint that the time might have arrived to disregard the rule in favour of the dominant principles which were seen to be emerging in the field of negligence. See the decision in Stephens v. Nudd (1978) QdR 76. However, that decision preceded the decision of the High Court in Trigwell.
Recently, the continuing authority of the High Court's decision in this state has been mentioned in Fabian v. Welch (Court of Appeal, Appeal number 12029 of 1998, judgment 7 September 1999, unreported). There, a postman was injured when his motorcycle's front wheel struck a dog which was crossing the highway back to its usual home. He fell off and suffered injuries. Counsel maintained that the principle in Searle v. Wallbank had been overtaken by the general approach of the High Court in the negligence cases such as Australian Safeway Stores v. Zaluzna 162 CLR 479, San Sebastian Pty Ltd v. The Minister 162 CLR 340, Cook v. Cook 162 CLR 376 and Burnie Port Authority v. General Jones Pty Ltd 179 CLR 520.
The Court of Appeal said, that until the High Court reverses or modifies its views more clearly, it might be difficult to disregard the explicit authority of Trigwell upon the basis of some perceived tendency of the Court (in the negligence cases).
The Court of Appeal did not itself embark on that potential exercise, saying that the case was not a suitable vehicle for its exercise. That was because, in the view of the Court of Appeal, even negligence itself was not demonstrated by the facts.
In my opinion the proper approach in principle to be adopted in this Court is that principles established by the High Court should be followed and that it is for the Court of Appeal, if it wishes, to say that a particular case might be a vehicle for reaching a different conclusion.
Here it is suggested, in any event, that this case should proceed to trial because the facts may take it outside the principle in Searle v Wallbank. Particular reliance is placed on the judgment of Graham v. The Royal National, Agricultural and Industrial Association of Queensland [1989] 1 QdR 624. There, a young horse escaped from an enclosed yard at the Exhibition grounds and caused injury to a patron.
Mr Justice Connolly, on the last page of the judgment, discussed the application of the principle in Searle v. Wallbank. He noted that topographical peculiarities would not ordinarily amount to “special circumstances” and so create an exception to the principle. He went on to say:
“It seems to me however that the RNA is not the simple position of an occupier of land whose stock stray onto the highway. It concentrates for a short period large numbers of livestock, many of them large animals, in a relatively small and congested area, all of them, the nature of things, well fed and under exercised. The colt in question was not of a vicious propensity but it obviously shared with all or at least most of the large animals on the site during the Exhibition a natural tendency in these circumstances to over-activity and to be unsettled in unfamiliar surroundings.
In my opinion the phrase ‘vicious or mischievous propensity’ is a way of expressing a notion that the animal in question is more likely than the general run of animals to get onto the highway as well, of course, as being more likely to cause injury or damage once there.
I hold therefore that the RNA is liable to (the plaintiff) and I proceed to assess the damages in both cases...”
It is suggested that those words of Mr Justice Connolly should be seen as lowering the impact of the Searle v. Wallbank principle in Queensland. Indeed, it can be seen that the draftsman of the statement of claim in this case had that exception to the principle in mind.
It is necessary to look at the way in which the claim is framed. The plaintiff says that she was injured when her motor vehicle struck a cow on Glover Road, Dayboro, at about 5.45 p.m. on 10 August 1997. She asserts that the cow had escaped or made its way through the open gate on the defendant's premises and then obstructed part or all of the road.
The statement of claim recounts that the cow moved while on the road, that the plaintiff had to take evasive action and then there was the collision. Because of the plaintiff's attempts at evasive action the vehicle swerved, hit the cow and then overturned.
The particulars of negligence are that:
- (a)The defendants failed to take any reasonable care to ensure that the plaintiff or any other user of the road will be safe whilst using the road free from obstruction.
- (b)Failing to ensure that the gate that was upon the (defendants') premises was properly secured or shut to avoid the traversing out of the gate onto the road of the defendants' cattle.
- (c)Failing to take any reasonable steps to ensure that the cattle would not cause nuisance to the plaintiff or any other road user; and
- (d)Having constructed a fence and being aware of the propensity of the cattle to present a mischief - failing to ensure the gate in the fence line was shut or otherwise secured.
It can therefore be seen that the last particular seeks to take advantage of the idea of a vicious or mischievous propensity by linking it to the escape of the cattle through the open gate.
That form of pleading is not sufficient, even if all those matters were proved, to bring the case within the recognised exception. The exception refers to the known capacity of the animal to be vicious or mischievous once it strays onto the highway. The mere fact that it has strayed does not itself prove that propensity. If it were a sufficient propensity or mischievous quality merely to escape through an open gate then the whole application of the principle in Searle v. Wallbank would be readily subverted in almost every case.
Under the circumstances it seems inevitable, in my opinion, that judgment must be given in favour of the defendants. It was urged by Mr Sayers in his capable argument the matter should go to trial. However whether or not that is the correct course is something that could only be decided on these pleadings by the Court of Appeal.
The only possible order in this court is that judgment be given for the defendants.
...
The orders should be then:
- Order that the defendants have judgment in the action pursuant to Rule 2932(A).
- Order that the plaintiff's claims be dismissed.
- Order that the defendants' costs of and incidental to the action and application be assessed on the standard basis and paid by the plaintiff.
...