Negligence—Premises—Injury to entrant—Liability of occupier—Duty of care—Trespasser—Special duties owed by occupier to different classes of entrant—Whether general duty of care may co-exist with special duty—Trespass on farm to steal petrol—Shot fired by occupier at thief's vehicle—Passenger injured—Occupier unaware of passenger's presence—Contributory negligence.
Decisions
GIBBS C.J. This is an appeal from a judgment of the Full Court of the Supreme Court of Victoria, which, by a majority (Young C.J. and McInerney J., Gobbo J. dissenting) allowed an appeal by the defendant (the present respondent) in an action brought by the plaintiff to recover damages for personal injuries and dismissed the plaintiff's cross appeal.
2. The circumstances of the case were unusual. The defendant was the owner of a farm at Korong Vale in Victoria. He did not live on the farm but went there to work each day. On the farm there was a petrol tank and pump, installed for the purpose of refuelling any motor vehicles used on the farm. For at least a year before December 1978 the defendant had been plagued by thefts of his petrol. He put expensive locks on the petrol tank, but they were cut off. He wired up the hose, but that did not stop the thefts. He complained to the police but they told him that he would have to get further evidence, such as a description of the car used in the thefts, before they could act. So, after a theft on the night of 3 December 1978, the defendant decided to lie in wait for the thieves. On the night of 10 December, the defendant, accompanied by his wife, hid near the bowser. The defendant was armed with a rifle and a shotgun. His plan was that if a car was driven onto the farm he would fire at it and immobilise it, and in that way discover the identity of the thief.
3. At about 10.00 p.m. on the night one, Cox, driving a stolen car, went to the defendant's farm. He was accompanied by the plaintiff, a girl of sixteen with whom he was associating. As the car approached the gate leading to the farm, Cox turned off the headlights. The car was stopped, Cox opened the gate and then drove the car (with the lights still off) onto the property and across a paddock and stopped it alongside the petrol tank. Cox got out of the car and began to pump petrol into the car. At this point there arose a conflict of testimony. The plaintiff said that when Cox got out of the car, she also got out and stood beside the front passenger side door. A shot was then fired and she got back into the car and lay down on the front seat. She then felt a burning feeling in her arm. She was not sure when Cox got…
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 Hackshaw v Shaw
Sign in free to access the full text
Details
AGLC
Hackshaw v Shaw [1984] HCA 84
Case
[1984] HCA 84
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal in *Hackshaw v Shaw*. The dispute concerned a claim for damages for personal injury arising from an incident where the appellant, a young woman, was shot by the respondent, a farmer, when she was a passenger in a car driven by her boyfriend, who was attempting to steal petrol from the respondent's property. The appellant alleged that the respondent had acted negligently and/or intentionally in shooting at the vehicle.
The central legal issues before the High Court were whether the respondent owed a duty of care to the appellant, and if so, whether that duty had been breached. The court also had to consider the application of the defence of contributory negligence, and whether the respondent's actions constituted an intentional tort or negligence.
The High Court, by majority, held that the respondent owed a duty of care to the appellant. Gibbs C.J. and Wilson J. found that the respondent's actions in firing a shotgun at a moving vehicle were inherently dangerous and constituted a breach of that duty, irrespective of whether the appellant was a trespasser. Deane and Dawson JJ. also found a breach of duty, emphasizing the foreseeable risk of injury to persons in the vehicle. Murphy J. dissented, finding no duty of care owed to trespassers in these circumstances. The court also considered the appellant's conduct, finding that while she was a passenger in a vehicle involved in an attempted theft, her own actions did not amount to contributory negligence to a degree that would defeat her claim.
The appeal was allowed, and the case was remitted to the Supreme Court of New South Wales for assessment of damages.