Loading in 2 Seconds...
Loading in 2 Seconds...
CLASSIFICATION OF LAW AND INTRODUCTION TO LEGAL PROBLEM-SOLVING. Topic 5. Classification of law. Private/public Private: torts, contracts Public: constitutional, criminal, administrative. Classification of law. Commercial law National/International law. The Common law. and civil law
Mavis Stewart attended our office today with her daughter Kylie Berg and a coffee cake, baked that morning. Ms Stewart is a keen cook and has a number of legal problems arising from a recent kitchen renovation, in respect of which she seeks our advice.
The kitchen renovation included new flooring. Mavis was particularly interested in flooring as she had difficulties keeping her slate tiles clean. She searched for low maintenance flooring and after extensive shopping decided on single sheet vinyl flooring. She saw just the thing at Discount Lino Barn, close to Kylie’s home. Kylie indicated that she didn’t share her mother’s preference for vinyl flooring as it was cold underfoot and had suggested kitchen carpet. Kylie and Mavis spoke to Mike at Discount Lino Barn who suggested under-floor heating could address Kylie’s temperature issues.
Mavis advised that even if she had known about the cake order she would have had difficulty fulfilling it because of problems with her newly installed cake oven. When the oven arrived she saw that instead of Australian sized delicate patty pan holders, the cake trays were American size muffin holders – and two trays were even jumbo sized Texas muffin size holders. This is not what Mavis wanted at all. Mavis rang Cathy and told her the oven was not what she had wanted at all, and not suitable for the cakes in which she specialised. Cathy said she was sorry that Mavis was disappointed, but there is nothing that they can do about it. Mavis wants to know if she still has to pay the $8,000 for the special cake oven.
MASON J. This is an appeal from a decision of the Supreme Court of South Australia (King J.) in which judgment was entered for the first respondents ("the Trigwells") against the appellant Insurance Commission.
The Trigwells had brought an action for damages for personal injuries which they had sustained when the vehicle in which they were travelling was involved in an accident with a vehicle driven by one Christine Avis Rooke. By their statement of claim, the Trigwells alleged negligence on the part of Miss Rooke. Miss Rooke had been killed in the accident and the appellant was sued as her compulsory third party insurer.
The second respondents ("the Kerins") were also joined as defendants in the action. By their statement of claim, the Trigwells alleged that Miss Rooke had collided with two sheep on the highway immediately before the accident and that, as a result  of, or in an attempt to avoid, the collision with the sheep, she had collided with the Trigwells. It was alleged that the presence of the sheep on the highway was the result of negligence on the part of the Kerins and further, or in the alternative, that the presence of the sheep constituted a nuisance which the Kerins had failed to prevent. The Kerins were sued as the occupiers of land adjoining the highway on which the accident had occurred.
The Trigwells claimed that either the deceased driver or the Kerins or both had been responsible for the accident.
The Kerins denied the allegations of negligence and nuisance. They maintained that, by virtue of the rule in Searle v. Wallbank , they were not liable in negligence for the loss and damage suffered by the Trigwells in the accident. They also denied that they were under any duty to prevent any nuisance which might be found to have existed.
The Kerins alleged that there had been contributory negligence on the part of Eric Gerald Trigwell, an allegation which he denied, and issued a third party notice for contribution against the appellant.
King J. held that the deceased driver had been guilty of negligence, thereby causing the accident in which the Trigwells had been injured, and that the Trigwells were therefore entitled to succeed against the appellant Insurance Commission. He held that there had been no negligence on the part of the respondent Eric GeraldTrigwell.
In the result, then, judgment was entered for the Trigwells against the appellant Insurance Commission. In this Court, the appellant challenged the finding that there had been negligence on the part of the deceased driver. The appellant also contested the conclusion of the Supreme Court that the Kerins were under no liability in negligence. It was submitted that the rule in Searle v. Wallbank did not form part of the law of South Australia and that, accordingly, upon the evidence, there should have been a finding of negligence made against the Kerins.
It will be convenient to consider first the liability of the Kerins in negligence. This depends very largely on what was decided in Searle v. Wallbank. Bray C.J. in Bagshaw v. Taylor has examined the effect of the decision and the operation in Australia of the principle which it enunciates. However, as this case is in effect an appeal against Bagshaw v. Taylor and as this Court has greater freedom to depart from a decision of the House of Lords than the Supreme Court of a State, it is necessary that I say something of Searle v. Wallbank.
We were invited to hold that the case was wrongly decided and to say that the earlier cases supported the view that the landowner or occupier of land was not immune from liability to negligence arising from his failure to fence securely his land so as to prevent stock from straying and causing injury to users of the highway. It is not an invitation to which I would accede…..
It has been suggested that the rule is of modern or recent origin, notably by Lord Wright in Brackenborough v. Spalding Urban District Council, in a speech to which Lord Greene M.R. called attention in Hughes v. Williams. However, an examination of the authorities shows that its antecedents are ancient.
I do not doubt that there are some cases in which an ultimate court of appeal can and should vary or modify that which has been thought to be a settled rule or principle of the common law on the ground that it is ill-adapted to modern circumstances. If it should emerge that a specific common law rule was based on the existence of particular conditions or circumstances, whether social or economic, and that they have undergone a radical change, then in a simple or clear case the court may be justified in moulding the rule to meet the new conditions and circumstances. But there are very powerful reasons why the court should be reluctant to engage in such an exercise.
These considerations must deter a court from departing too readily from a settled rule of the common law and from replacing it with a new rule. Certainly, in this case they lead to the conclusion that the desirability of departing from the rule in Searle v. Wallbank is a matter which should be left to Parliament.
My conclusion is, then, that we should accept that what was and has been the common law for England was correctly decided by Searle v. Wallbank. The next question is whether the law as declared by the House of Lords in that case represents the law of South Australia. The proper approach to a determination of such a question was adopted by the Supreme Court of Victoria in Brisbane v. Cross, and by the Supreme Court of South Australia in Bagshaw v. Taylor. Accordingly, the inquiry must be whether the law in Searle v. Wallbank was applicable in the colony of South Australia upon its settlement and further, whether the law, if so applicable, has been varied or abolished by subsequent local legislation.
Subsequent statutory provisions such as s. 14 (2) of the Impounding Act, 1920 (S.A.), permitting the impounding of cattle wandering or straying upon the road and, in effect, the imposition of a penalty upon the owner of the cattle, have not displaced the common law because they confer no private right of action upon a person injured by the straying cattle (see Searle v. Wallbank).
The view might be taken that conditions prevailing in Australia, or some parts of Australia, are more suited to the  retention of the rule in Searle v Wallbank than the conditions which prevail in the United Kingdom. Not only is Australia predominantly rural in character but its rural interests centre very substantially around the raising and keeping of livestock. I mention these considerations, not with a view to saying that the rule ought to be retained, but so as to emphasize the point that the issue of retention or abolition calls for an assessment and a adjustment of conflicting interests, the principal interests being those of the rural landowner and occupier and those of the motorist.
We must proceed, therefore, on the footing that Searle v. Wallbank forms part of the law of South Australia.