State Government Insurance Commission (SA) v Trigwell

State Government Insurance Commission (SA) v Trigwell - [1979] HCA 40 - HCA 1979 case summary — Zoe

[14]

It has never been in doubt that South Australia was a settled colony within the established rules governing the application of English law to British possessions abroad. According to the statement of Blackstone which has been frequently cited, colonists carry with them to a settled colony "only so much of the English law, as is applicable to their own situation and the condition of an infant colony" (Commentaries , vol. 1, p. 107). It was held in Delohery v. Permanent Trustee Co. of N.S.W. [4] that in considering whether a particular rule of law was introduced into a colony on its settlement, the question is not whether the law is a beneficial or convenient one, but whether its administration or application was practicable having regard to the conditions existing in the colony, and Dugan v. Mirror Newspapers [5] provides a recent example of this principle. The date as at which the applicability of the law falls to be considered is the date of settlement, or such other date as is fixed by statute. In the case of South Australia the relevant date is 28th December 1836. But although that date is most significant so far as the adoption of statute law is concerned, it is of less importance in considering the application of the common law. Legislation passed after that date will of course not be applicable unless it is expressly applied. But the common law which was adopted is not frozen in the form which it assumed in 1836. It is the common law rules as expounded from time to time that are to be applied: cf. Reg. v. Callope [6] . To adapt the example given by Windeyer J. in Skelton v. Collins [7] , if it is not right to say that the principle of Donoghue v. Stevenson [8] became part of the law of South Australia in 1836, it is at least true to say that a body of principles, including those that developed into the rule subsequently expressed in that case, formed part of the law of South Australia from 1836 onwards. It would be no reason for holding that the rule in Searle v. Wallbank [9] does not apply in South Australia that the rule had not been stated precisely in its present form in 1836.

[59]

It is a well-established principle that, in settled colonies, so much of the common law of England is introduced as is applicable to the situation of the colonists and the condition of the colony (see Halsbury's Laws of England, 4th ed., vol. 6, p. 589; Cooper v. Stuart [45] ). The applicability of the law in question depends not upon whether the court considers the law suitable or beneficial for the colony, but upon whether the law is capable of application in the colony (Delohery v. Permanent Trustee Co. of N.S.W. [46] ). The date upon which the applicability of the English common law to the settled colony of South Australia falls to be considered has been fixed by local enactment. Section 3 of Act No. 9 of 1872 S.A. provides that "In all questions as to the applicability of any laws or statutes of England to the Province of South Australia, the said province shall be deemed to have been established on the 28th day of December 1836". This section, it might be noted, was a reenactment of s. 1 of Ordinance No. 2 of 1843 S.A., the latter provision having been repealed by s. 2 of the 1872 Act. In so far as s. 3 of the 1872 Act relates to the applicability of the statutes of England to the Province of South Australia, it has been impliedly repealed by s. 48 of the Acts Interpretation Act, 1915 S.A. which provides that "For the purpose of determining the applicability or otherwise within the State of any Act of the Parliament of the United Kingdom, the State shall be deemed to have been established on the twenty-eighth day of December, 1836". However, s. 3 of the 1872 Act is still in force to the extent that it relates to the applicability of "any laws of England" to the Province of South Australia, the "laws of England" clearly referring to the common law of England in contrast to the "statutes of England". The issue, then, is whether the common law of England, as settled by the decision of the House of Lords in Searle v. Wallbank, was applicable, in the relevant sense, to the colony of South Australia on 28th December 1836.

[66]

We must proceed, therefore, on the footing that Searle v. Wallbank forms part of the law of South Australia. However, the immunity from liability for injury caused by an animal straying upon the highway which the decision establishes is not an absolute immunity. As I have already indicated, the immunity is qualified; it was recognized that liability might arise where the defendant had prior knowledge of some vicious propensity in the animal which injured the plaintiff. This qualification to the common law rule was recognized in Searle v. Wallbank [50] and for my part I doubt whether the rule contemplated any further exception to the immunity which it acknowledged. However, Lord du Parcq in Searle v. Wallbank [51] appears to suggest that there might be some broader exception to the immunity. Thus, he was prepared to accept, "subject to certain reservations", that "apart from any question of liability for injury caused by an animal known to its owner to be dangerous, an owner might be liable on the ground of negligence if he could be shown to have failed in his duty to take reasonable care" [52] . His Lordship referred to the observations of Lord Atkin in Fardon v. Harcourt-Rivington [53] , to Deen v. Davies [54] and to Aldham v. United Dairies (London) Ltd. [55] . With great respect to his Lordship, I do not consider it correct to approach the liability of a defendant for injury caused by a straying animal on the footing that the general principles of negligence are applicable. The common law rule which confers immunity, albeit a qualified immunity, from such liability is a exception to the ordinary principles of negligence. And, in the area in which the rule operates, it negates the existence of a duty of care. The case of Deen v. Davies was not a case of special circumstances. It dealt with a different question, namely, 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. It decided that Searle v. Wallbank has no application to such a case. Again, Aldham v. United Dairies (London) Ltd. [56] was not a case of a straying animal. There the horse was brought on to the highway where it bit the plaintiff.

[134]

The trial judge found negligence in failure to keep a proper lookout and in excessive speed. I have said above that I do regard the former finding as open on the evidence. As to excessive speed, it is no doubt true, that, if Miss Rooke had been driving more slowly than she was, it is possible that she might have avoided one or both of the sheep and might not have lost control of her car but there is, in my opinion, no evidence on which to base a finding of negligence by reason of excessive speed. The only direct evidence as to speed is that of the witness Raines. In his evidence in chief he said that shortly before the collision occurred he was travelling at about 100 kilometres per hour, or 60 m.p.h., behind Miss Rooke's car and was catching up, and that Miss Rooke's car was travelling at a speed a little less than his. He then said that an approaching car coming in the opposite direction, dipped its lights a couple of times quickly. He said that the lights of Miss Rooke's car were dipped as soon as the approaching car came over the rise, up which his car and Miss Rooke's were going. He said that she dipped her lights and "decreased her speed and slowed down, veered to the left slightly, not quite right off the road. She went along on that path for a while, then she shot straight across to the left-hand [sic] side of the road where the approaching vehicle was coming". He was asked whether she continued on that course after she veered to the left for some distance and he answered, "Yes, not a real big distance." He said that he veered to the left after Miss Rooke's car veered to the left and said that his course was partly on the bitumen and partly off. In cross examination he said that her car's speed "slackened a little before she veered [i.e. to the left]". He estimated the distance which the car travelled from the time it first veered to the left until it went "shooting across to the right" as about 100 metres. The distance between the first impact with the sheep and the point of collision was established as 79 metres or thereabouts. Raines said that he could not estimate the speed of the oncoming car.

[139]

It is by no means clear on the evidence whether her car struck the sheep or one of them before or after veering to the left, but it is reasonable to infer that it was after the car had slowed down, whether that reduction in speed is to be described as " quite a bit " or "a little " or merely " decreased her speed and slowed down ". The trial judge said that, "It is clear from Raines' evidence that he did not get the impression of any emergency braking." The absence of "emergency braking" suggests that Miss Rooke did not see the sheep in time to apply the brakes or to apply them sufficiently to avoid the sheep, and indeed there was evidently not more than one second's interval of time in which to do so. I am satisfied that the trial judge was not referring to "emergency braking" in the period after the impact with the sheep, because he made that observation immediately after referring to Raines' evidence as to braking at the time of dipping the headlights and Raines gave no evidence at all about subsequent speed or subsequent braking. There is no direct evidence as to speed or braking or lack of braking thereafter. However, an expert witness, a Mr. Doble, gave evidence based on the position of Miss Rooke's car and of the other car (a stationwagon) after the collision relative to the point of impact to each other vehicle and the extent of damage to both as appearing from the photographs in evidence. The stationwagon came to rest some 13 metres beyond the point of impact, but Miss Rooke's car was propelled backwards and came to rest upside down approximately in line with the front of the stationwagon slightly further from the point of impact. On that material, he said that Miss Rooke's car was travelling "relatively slowly ", i.e. "Slowly relative to the ground and also slowly relative to " the stationwagon. This conclusion was not challenged, though other evidence of his based on the examination of photographs of tyre marks was rejected as it appeared that the photographs were taken two days after the collision and there was no certainty that they were made by Miss Rooke's car.

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Judgment (142 paragraphs)

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