Hannon v McLarty

[1914] HCA 47

18 CLR 575

ON APPEAL FROM THE SUPREME COURT OF Vuisance-Negligence-Highway - Wheat left on highway-Horses injured by

The defendant left a waggon loaded with bags of wheat, unattended and unprotected except by a dog, on the side of a country road three chains wide. The plaintiff's horses were by his direction turned out of his yard on to the road to find their way unattended, as they were accustomed to do, to a paddock seven miles away. The horses tore open some of the bags and ate

18 CLR 576

so much of the wheat that some of them died and others were injured. In an action in a County Court based on public nuisance and on negligence, the Judge found that wheat was so strong an allurement for horses that they would break through anything possible of being broken through to get at it, and that it was customary in country districts to leave waggon-loads of wheat on the roadside unprotected, and he gave judgment for the plaintiff, but on appeal the Supreme Court reversed that decision and gave judgment

Held, that special leave to appeal to the High Court should be refused. Special leave to appeal from Hannon v. McLarty, (1914) V.L.R., 526 36 A.L.T., 62, refused.

MOTION for special leave to appeal.

An action was bought in the County Court at Swan Hill, Victoria, by John Hannon seeking to recover £209 damages for injuries sustained by the plaintiff's horses. The particulars of demand set out that the defendant wrongfully left wheat unpro- tected on a certain public highway whereby a public nuisance was caused, and that four horses belonging to the plaintiff, which were lawfully on such highway, were killed and others were damaged by eating such wheat, and, alternatively, that the plain- tiff claimed damages against the defendant for leaving the wheat unprotected.

The evidence established that from 9 p.m. until midnight on 12th February 1914 the defendant left a waggon loaded with bags of wheat on the side of a country road three chains wide, the wheat being unattended and unprotected except by a dog which was tied to the waggon; that on the same day between 4 p.m. and 5 p.m. the plaintiff's team of horses were by his direction let out from his yard on to the road to find their way unattended, as they were accustomed to do, to a paddock seven miles distant and beyond the spot where the waggon was and that the horses tore open some of the bags and ate SO much of the wheat that four of them died and the others were rendered unfit for work.

The learned County Court Judge found (interalia) that wheat was most attractive to horses and constituted an allurement SO strong that they would break through anything possible of being broken through to get at it; that the defendant knew of this allurement; that the dog was not a reasonable protection for

18 CLR 577

keeping horses from the wheat; that in country districts it is the custom among farmers to leave waggon-loads of wheat unprotected on the roadside that the plaintiff himself had done

SO and that the plaintiff did not know that the particular waggon-load of wheat was on the road, and that the risk of its being there was not one which the plaintiff as a reasonable man was bound to foresee and guard against. The learned Judge gave judgment for the plaintiff for £160.

On appeal to the Full Court of the Supreme Court the decision was reversed and judgment was entered for the defendant-the Court holding, as to the claim based on nuisance, that the horses were trespassing on the highway, that the leaving the waggon loaded with wheat on the roadside did not constitute a nuisance and that, even if it did, the nuisance was in no sense the cause of the loss to the plaintiff; and, as to the claim based on negligence, that the defendant was not negligent in not contemplating and, by anticipation, preventing the results which happened: Hannon V. McLarty 1.

The plaintiff now moved for special leave to appeal from that decision.

S. R. Lewis, for the plaintiff. Upon the evidence and findings the wheat left on the road was a public nuisance in that it was a danger to horses passing along the road McIntyre v. Hams 2 Garrett on Nuisances, 2nd ed., p. 40. It is in the same category as a poisoned bait. The plaintiff owed no duty to the defendant to prevent his horses from straying. The leaving the wheat unattended is prima facie evidence of negligence, and as the learned County Court Judge found that the defendant was guilty of negligence the Full Court, upon principle, should not have disturbed his finding.

GRIFFITH C.J. No general question of law arises in this case. At most the question is whether any inference of negligence can be drawn from the facts in evidence. For myself I should like to add that I think the decision is manifestly right.

ISAACS J. concurred.

1(1914) V.L.R., 526 36 A.L.T., 62. 2(1911) S.A.L.R., 16. 18 CLR 578

GAVAN DUFFY J. I agree that this is not a case for special leave. So far as the matter has been argued I am disposed to think that the decision of the Full Court is right.

POWERS J. concurred.

RICH J. concurred.

Special leave to appeal refused. Solicitors, for the plaintiff, Plante &Henty for J. R. Town, Swan Hill.

[HIGH COURT OF AUSTRALIA.]

MORAN &CATO PROPRIETARY LIMITED # APPELLANTS

DEFENDANTS, CANTLON

ON APPEAL FROM THE SUPREME COURT OF Trading Stamps - " Issue" on sale of goods-Coupons entitling purchaser to obtain

other goods free- Promise by manufacturer or original vendor-Distribution by retailer - Trading Stamps Act 1901 (Vict.) (No. 1750), secs. 2, 3. MELBOURNE,

* The Trading Stamps Act 1901 by

' Trading stamp company sec. 2 provides that " Trader' means

means and includes any person firm or any person firm or company carrying

company who supplies any trading on any business who issues trading

stamps to any trader and undertakes to stamps to customers. Trading stamp

redeem the same or that the same will includes any stamp coupon cover pack-

be redeemed by giving or delivering age document means or device supplied

to the holder thereof any money or by any trading stamp company or issued by any trader which entitles the holder thereof to demand and receive

Sec. 3 provides that " (1) No person shall on the sale of any goods issue any from any trading stamp company or

trading stamps," and imposes a penalty from any person firm or company other

on a person doing so. than the said trader any money or