Smith v Williams[2006] QSC 221

SUPREME COURT OF QUEENSLAND

[2] By this application the first, second and third defendants (hereinafter the applicants) seek judgment against the plaintiff pursuant to r 293 of the Uniform Civil Procedure Rules (UCPR).  In the alternative they seek that the amended Statement of Claim be struck out as not disclosing a reasonable cause of action.

[3] The plaintiff’s claim is for damages for personal injury sustained on 17 April 2002 when the loaded fuel tanker he was driving overturned whilst he was attempting to avoid cattle which were in the process of cross the roadway.  He alleges that the cattle were owned by or under the control of the applicants (or any of them).

[4] The applicants are the occupiers of property known as Woodleigh Station where they carry on the business of grazing cattle.

[5] The plaintiff’s claim against the applicant relevantly is based upon the applicant’s alleged failure to supervise the subject cattle whose presence on the roadway caused or contributed to his injuries.

[6] The applicants allege that the circumstances in which the cattle were present on the road as described in the amended Statement of Claim gives rise to an immunity from liability recognised at common law as the rule in Searle v Wallbank[1].  The plaintiff argues that the circumstances take the case outside the purview of the rule.

[7] This application is made against the background of an earlier similar application on which I ruled on 2 September 2005 ([2005] QSC 267) and in some respects rehearses the arguments there raised.  In that decision I set out the relevant facts, as they then were, and the features of the rule in Searle v Wallbank.  My reasons there should be read in conjunction with these.  In that decision I gave leave to the plaintiffs to replead circumstances upon which they relied to argue that the exception provided by the rule did not apply. 

[8] By the amendments set out in his Amended Statement of Claim filed on 30 September 2005, the plaintiff drew a distinction between the 60 metre wide road reserve and the bitumen carriageway along which the plaintiff was travelling.  One feature of the carriageway was the fact that it traversed a culvert, at which point the bitumen surface was between 6.8 metres and 7.2 metres wide.  In this area there was no fence between the road reserve and the property on which the cattle were meant to be depastured. 

(a) The amendments include the further allegation that the applicants “maintained not less than 20-30 cattle on the road reserve adjacent to the highway”.  The applicants, by paragraph 3 of their Defence, admit that they allowed cattle to be depastured, graze, wander, be or remain upon land adjacent to the bitumen surface of the highway but deny that the cattle did cross and recross the road so as to cause a significant obstruction to traffic. 

[9] The Amended Statement of Claim was amplified by further particulars in these terms:-

“Our client is not able to say what numbers of cattle were present in the near vicinity of the road but believes it was probably more than two or three.  Mr Coleman, who arrived on the scene very shortly after the accident which caused the plaintiff’s injuries, observed a very large number of cattle at and about the scene and we will ask the Court to infer that the cattle which the plaintiff saw were part of the larger mob of cattle referred to in paragraph 12 of the statement of claim.”[2]

[10] The pleading in respect of the allegations of negligence remains unchanged.  Mr Morton of counsel for the applicants submits that those circumstances do not take the case outside the exception provided by the rule in Searle v Wallbank.  That submission effectively seeks to re-argue the matters considered in my earlier judgment wherein I ruled that factual considerations might lead to a finding that the rule in Searle v Wallbank did not apply.  In my view it is not possible at this time to be assured that the rule would apply.  Thus, it could not be said that the plaintiff had no real prospect of succeeding in this part of the claim.  Deputy Commissioner of Taxation v Salcedo[3].  There is no change in the circumstances such as would persuade me on the hearing of this new application to depart from what I said previously.

[11] Dealing with the allegation of nuisance, Mr Morton challenges the comment in my earlier reasons at para [12] to the effect that Mason J (in State Government Insurance Commission v Trigwell[4]) did “not close the door completely to claims in uses for straying animals”.  Mr Morton suggested that that remark betrays a misreading of the judgment of Mason J which includes the expression “if there is no liability in negligence, there can be no further basis for liability such as nuisance”[5]. I accept that the context in which Mason J made his remarks concerned circumstances in which the rule in Searle v Wallbank would not apply and to that extent my comments may have been misleading.  But the point at issue in this case remains and that is whether the circumstances allow the applicants to claim the immunity provided by the rule. 

[12] Even if the plaintiff succeeds in showing that the immunity does not apply, the task of making out a cause of action based on nuisance by obstruction of a public highway is not an easy one.  In Trevett v Lee[6] Evershed M.R. said (at p 409):-

“The law as regards obstructions to highways is conveniently stated in a passage in Salmond On Torts (11th Edn.), at p 303:  “A nuisance to a highway consists either in obstructing it or in rendering it dangerous” and then a number of examples are given.  I will not take up time reading them, but a reference to these examples seems to me to show that prima facie, at any rate, when one speaks of an obstruction to a highway one means something which permanently or temporarily removes the whole or part of the highway from public use altogether…The alternative in the text which I read (“or in rendering it dangerous”) adds a different conception of wrongful interference, viz., the putting on a highway of something which, though it does not obstruct, that is, bar the highway in the sense that I have already mentioned, yet is liable to make it dangerous.  Again, one example will suffice:  if I make a small hole in the highway difficult to see, or put some greasy substance on it, so that treading in the hole or on the substance is liable to cause a man as a natural consequence to fall, then it may be that I have caused a nuisance to the highway, not by obstructing it, but by rendering it dangerous.”

[13] Though Mr Morton with some justification criticises the lack of particularity in the pleading, the issue of nuisance it seems to me, is sufficiently joined.  That is not to say, however, that the applicants are not entitled to further and better particulars if an order to this effect were sought.  Newly pleaded details of the road widths and the presence of the culvert may or may not have relevance to the question of obstruction and danger.  Particulars were sought as to the placing and maintaining of cattle on the road reserve and the identity of the cattle but the plaintiff has refused to provide such particulars.  Whilst this may be a source of complaint it is not fatal to my consideration of this application.

[14] The question of whether the plaintiff can establish his claim in nuisance will involve mixed questions of fact and law.  If the plaintiff is unsuccessful in the quest to show that the circumstances fall outside the scope of the rule in Searle v Wallbank then it is likely the action will fail. However, the plaintiff asserts that the circumstances bring his claim outside the rule and there is sufficient evidence at least for him to have the opportunity to litigate his claim. Thus I am not persuaded on present material that the plaintiff has no real prospect of succeeding at trial.  This being the case I will dismiss the application.

Orders

[15] I make the following orders –

1. The application by the first, seconde and third defendants is dismissed.

2. The parties have liberty to apply on giving to the other parties two business days notice.

3. I adjourn the question of costs to allow the parties to make written submissions on this issue within 14 days from the date hereof.