See also Donoghue v Stevenson [1932] AC 562 at 596 and 611; Burfitt v A and E Kille [1939] 2 QB 743 and Smith v Leurs (1945) 70 CLR 256 at 259, reference by Latham CJ to 'loaded guns'.
33 While the distinction between things dangerous in themselves and things not so inherently dangerous has been criticised, it has survived as a reminder that, though no longer a determinant of duty, inherently dangerous chattels may call for a higher degree of care. See Fleming The Law of Torts 9th Ed 545 and cases there cited.
34 As I have said, there is no reason why due weight should not be given to the statements of Nikola Lalic in his police record of interview. Indeed, his admission that 'probably one or two shots' were in the rifle when he left it in the wardrobe and that he had no reason for so doing, explains how the accident occurred. Michael had no reason to know that his father had left the rifle in a loaded condition. Indeed, Michael gave evidence that his father's practice and the house rules were to always ensure that the gun was kept unloaded, see also Michael's record of interview.
35 That the father's record of interview has some inconsistencies with Michael's evidence is hardly surprising given that he was lead into answers in cross-examination by his father's counsel. In the circumstances one might question the weight to be given to some of his answers.
36 It seems to me plain that the weapon was negligently stored. It was stored in clear breach of s 12 of the Firearms Act, which requirements are no more than common sense, and simple to apply. Two breaches are apparent on the evidence. The bolt was not removed from, and was not stored separately from the balance of the firearm, and the weapon was loaded. Safe storage required that these precautions be adopted. It is abundantly clear that if the rifle had not been stored in a loaded condition, the accident would not have happened. The failure to comply with statutory requirements is evidence of negligence, see Curmi v McLennan [1994] 1 VR 513.
37 It was submitted on behalf of the respondent that the system of locking of the wardrobe and the security of placing the key in a locked box with its key in a drawer, negatives any negligence in leaving the gun stored in a loaded condition. I disagree. Besides the respondent, at least three others knew of the security system for storage of the guns. Mrs Lalic knew because her husband had told her. Both Michael and his brother knew because they had searched their father's room 'when we were kids' and found the keys. Clearly Michael knew that his father's guns were stored in the locked wardrobe and he was intent on gaining access to them. That he (and Rad) were both adults at the time of the incident matters not. Common sense demands that a high degree of care is required when storing dangerous weapons such as this rifle. To store it in a loaded condition bespeaks of negligence notwithstanding that it was in a locked wardrobe. That one of the sons, or a stranger for that matter, might gain access to the loaded gun was foreseeable.
38 As Mason CJ held in March v E & M H Stramare Pty Limited (1991) 171 CLR 506, causation in negligence is a question to be determined by applying common sense to the facts. The test also applies to the question of whether some particular damage resulted from the negligent act or omission (Medlin v SGIC (1995) 182 CLR 1). As Beazley JA observed in Sullivan v Gordon (1999) Aust Torts Reports 81 - 524, Medlin demonstrates that the chain of causation is not necessarily broken by an act of a plaintiff or a third party which constitutes a more immediate cause of the loss or damage than the defendant's negligence. See also Chappel v Hart (1998) 195 CLR 232, Kavanagh v Akhtar (1998) 45 NSWLR 588 and Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307.
39 In my opinion, the learned trial judge was wrong to find that the conduct of the son was a novus actus interveniens which broke the chain of causation. Pulling back the bolt and pulling the trigger, when he reasonably believed from what his father had told him that the gun was not loaded, is not such an intervening act.
40 The onus was on the respondent to prove that the damage was caused not by his negligence but by a novus actus interveniens. That was not discharged in my view. The evidence was that Michael did not intend the consequences which occurred. It comes back to what Lord Dunedin said in Dominion Natural Gas. A loaded gun will not go off unless someone pulls the trigger. There was no break in the chain of causation by the conduct of the son.
41 In my opinion, the appeal should be upheld with costs and the following orders made: