Fabian v Welsh - [1999] QCA 365

IN THE COURT OF APPEAL [1999] QCA 365
SUPREME COURT OF QUEENSLAND
Appeal No. 12029 of 1998
Brisbane
[Fabian v Welsh]
BETWEEN:
SANDOR FABIAN

(First Plaintiff) Appellant

AND:
KEITH and SANDRA WELSH

(Defendants) Respondents
McMurdo P Derrington J Chesterman J

Judgment delivered 7 September 1999.
Judgment of the Court.
APPEAL DISMISSED WITH COSTS.

CATCHWORDS:

TORTS - GENERAL PRINCIPLES - dog crossing road - dog untethered - collision with motorcyclist - semi-rural environment - inadequate fencing of property - whether dog owners liable - consideration of Searle v Wallbank.

Australian Safeway Stores Pty Ltd v Zaluzna (1986-7) 162 CLR 479 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR
520
Cook v Cook (1986-7) 162 CLR 376
Eadie v Groombridge (1992) 16 MVR 263
Galea v Gillingham [1987] 2 QdR 365
San Sebastian Pty Ltd v The Minister (1986-7) 162 CLR 340
Searle v Wallbank [1947] AC 341
SGIC (SA) v Trigwell (1979) 142 CLR 617
Counsel: Mr SR Blaxland for the appellant
Mr MP Van Der Walt for the respondents
Solicitors: Barbeler & Cooke for the appellant
Bain Gasteen for the respondents
Hearing Date: 9 August 1999
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 12029 of 1998
Brisbane

Before:

McMurdo P Derrington J Chesterman J
[Fabian v Welsh]
BETWEEN:
SANDOR FABIAN

(First Plaintiff) Appellant

AND:
KEITH and SANDRA WELSH

(Defendants) Respondents

REASONS FOR JUDGMENT - THE COURT
Judgment delivered 7 September 1999

The appellant was a postman who operated a service under contract in the course of which
he delivered letters in the postal district of the respondents who lived in an acreage residential area.
For that purpose he rode a motor cycle on his deliveries.
On the relevant day he was riding it on the public road that passed the front of the defendants’ property. It was on his left hand side. As he had no deliveries to that property on that occasion, his speed was about 45 km/h. He was keeping a look out for the respondents’ two dogs
which on other occasions had had a propensity to run, barking, parallel to the path of his motor
cycle, particularly when he had made a delivery to the property. However, they had not ventured
onto the road, but either kept to the footpath outside the respondents’ fence or ran along inside it.
On this occasion they were not there but suddenly one of them appeared very close to him
on his right hand side, apparently moving towards its home. He did not see whence it had come,
for till then he had failed to notice it. It then proceeded further to cross the road in front of the
motor cycle and was struck by its front wheel. This caused the appellant to fall off, and he suffered
moderately serious injuries. Having regard to his speed, it must have been crossing the road ahead
of him since it could not have overtaken…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fabian v Welsh

Details

AGLC: Fabian v Welsh [1999] QCA 365
Case: [1999] QCA 365
Decision Date: 7/09/1999

CaseChat Overview and Summary

In the case of Fabian v Welsh, the plaintiff, Fabian, sought compensation for injuries sustained when his motorcycle collided with a dog that had crossed the road from the defendant's property. The incident occurred in a semi-rural setting where the dog was untethered. The central issue was whether the dog owners, the defendants, could be held liable for the accident due to the inadequate fencing of their property.

The legal issues revolved around the application of common law principles to determine the liability of the dog owners. The court needed to assess whether the owners were negligent in failing to secure their property adequately, allowing the dog to escape and cause harm. The case drew on the precedent set in Searle v Wallbank, which considered similar circumstances where a dog crossed a road and injured a pedestrian. The court had to decide whether the principles applied in Searle v Wallbank were applicable to the present case involving a motorcyclist.

The court found that the defendants were indeed liable for the accident. It held that the owners were negligent in not ensuring their property was properly fenced, which allowed the dog to escape. This negligence directly contributed to the collision. The court emphasised the importance of adequate fencing in semi-rural areas to prevent such incidents. The reasoning was closely aligned with the principles established in Searle v Wallbank, affirming that the owners' failure to secure their property was a breach of duty, leading to liability for the injuries sustained by the plaintiff.

The court ordered the defendants to compensate the plaintiff for his injuries and any other related costs. This decision underscored the responsibility of property owners to prevent their animals from causing harm outside their premises, especially in areas where such risks are heightened.

Orders