Le Poidevin Industries Pty Ltd v Roberts

[1991] HCATrans 246

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No AS of 1991

B e t w e e n -

LE POIDEVIN INDUSTRIES PTY LTD

Applicant

amd

STUART JOHN ROBERTS

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 4 SEPTEMBER 1991, AT 2.31 PM

Copyright in the High Court of Australia

Le Poidevin 1 4/9/91

MR D.K. LE POIDEVIN:  Your Honours, I appear for the

appellant company. My name is Le Poidevin.

MR J.D. RADBONE:  May it please Your Honours, I appear on

behalf of the respondent. (instructed by Adams

Kandelaars)

BRENNAN J: Yes, Mr Radbone. Gentlemen, I should say that

the case of Harradine v The University of Adelaide

has been taken out of its position of where it was

in the list for today. It will come in later in

the list when the matter is ready for argument.

MR LE POIDEVIN:  Your Honours, this case involved a question

of the interpretation of section 17A of the
Wrongs Act, a South Australian Act of Parliament.

I have got copies of that Act available which, if Your Honours would care to have a copy - I assume

you have not already received one.

TOOHEY J: Is there anything we need to look at that is not

in the judgment of the court?

MR LE POIDEVIN:  The judgments of Justice Duggan include

section 17A, but you would need to have copies of

the appeal books before the supreme court but, in

particular, I am looking at section 17A of the

Wrongs Act -

BRENNAN J:  The material we have at the moment consists of

the application book and we have also an outline of

the respondent's submissions, and that is the

material.

MR LE POIDEVIN: Yes. Is it possible to hand up copies of

the Wrongs Act, sir?

BRENNAN J: Yes.

MR LE POIDEVIN:  I would like Your Honours to have copies,

if possible. I was asked to prepare seven, but I

do not know whether we require seven or three.

The particular section is contained in No 116

of 1983. The Act itself has been amended several

times and the amendments are attached to the

original Act. If you refer to Act No 116 of 1983 -

if I can simply proceed - this is the first

occasion on which I have appeared before the High
Court on a matter seeking leave to appeal, sir, so

I think all I can really do is go through the

appeal book and refer to each of the items that I

have already listed down, unless the Court has

already - I presume you have studied or read the

appeal book and - - -

BRENNAN J:  We have read the application book,

Mr Le Poidevin, and what you must endeavour to show

Le Poidevin 4/9/91

to us is that there is some particular question

which justifies the grant of special leave to

appeal.

MR LE POIDEVIN:  Yes, Your Honour. The whole case rests on

the interpretation of section 17A of the Wrongs Act

and the Wrongs Act simply tries to, or probably

does, abolish the old law relating to straying

livestock and the liability or the fact that

farmers virtually had no liability for straying

livestock, but the question that arises now is to

what extent they are liable as a result of this

amendment to the legislation. It raises the

question of whether the owner of the property or
the farmer is liable to enter on a strict liability

basis or whether the driver of the vehicle still

has some liability for negligence.

It has been the case for the appellant company

long in this case that the driver of the vehicle

must have been negligent for the accident to have

occurred, but so far I have had no success in

persuading even the magistrate or the Supreme Court

to make that finding. I am submitting to this

Court that on a proper construction of the law and
of the facts of the case the plaintiff should have

been held liable with negligence of his driving and

that the appellant company should not have been

held liable for his car repairs as a result of this

collision.

It really is a question of interpretation of

this amendment, and I understand there have been no

High Court decisions on this 1983 amendment. It is

a question of interpretation of whether or not a

cow which simply walks across the road caused an

accident, or whether the real accident was caused

by the driver of the vehicle, who in this case was

a 22-year-old youth, or young man living at Owen,

and he apparently was driving at about 45 miles an

hour in the early evening - half past six, seven

o'clock at night - when his car collided with a

cow.

What I am asking the Court to do is to

reconsider the facts and to interpret the law the

way that I see the law should be interpreted, which

is that the owner of the cow, if it is the
appellant company, was not liable because of the

negligent driving of the plaintiff. It seems to me

that that is a logical conclusion, and also my
authority for saying that is the ten years old High

Court decision in SGIC v Trigwell. In that case the majority of the High Court - it was a very

similar case, a South Australian case, a young

woman driving a car collided with two sheep and the

Le Poidevin 4/9/91

majority of the High Court held that that

constituted negligent driving.

What I am saying is that just because

section 17A has been introduced into the Wrongs Act

that that does not take away the liability on the

driver of the vehicle for negligent driving, that

all the courts in South Australia, particularly the

Supreme Court, should still follow the principle

set out by the majority of the High Court in the

Trigwell decision. They should have all made the

finding that the driver of the vehicle was liable

in negligence. Even if he was not totally liable,

at the very least I would submit that he should

have been liable for contributory negligence.

DEANE J: But would it not just depend on the facts? If you

had a jet black cow in the middle of a moonless

night and somebody came round the corner and ran

into it, it is a bit hard to see that he was

negligent. On the other hand, if it was the middle

of the day the situation would be quite different.

MR LE POIDEVIN: In the Trigwell case, which is referred to in the appeal notice, I think, about ten years ago the High Court held that an accident when a young

woman driving a vehicle collided with two sheep

after dark, took her lights off high beam on to low

beam, it was still held that that was negligent

driving. It was after dark, the sheep apparently

walked straight on to the road, but the majority of

the Court still held that a collision at that hour

of the night still constituted negligent driving.

BRENNAN J:  More accurately, that there was no negligence

proved against the adjoining landholder.

MR LE POIDEVIN: Regardless of that, the majority of the

Court were still prepared to hold that the driver
of the vehicle was guilty of negligent driving·.

Obviously there may be some system of apportioning

negligence between the two.

law, the Searle v Wallbank i think the case was, I realize that the old

virtually gave farmers a total immunity from

liability. I realize that situation. But none the

less a majority of the High Court held

unequivocally that the driving of the person who in

that case died as a result of the accident, that it

was her negligent driving which caused the
accident, and of course her vehicle came into

collision with another vehicle. It still seems to

me that to take the situation and interpret
section 17A now and simply say that the law has

been changed to say that all the principles are

applied to the question of negligence. It does not

say how each party is to be made liable for

negligence, to what extent they are negligent, it

Le Poidevin 4/9/91

is simply a case for the courts to make an

assessment as to whether the driver is negligent or

whether the owner of the stock is negligent.

It strikes me that it is extremely unfair to

make the owner of a cow liable of negligence for
everything when the owner was not at the scene of
the accident, the plaintiff was driving the
vehicle, it was his vehicle which came into

collision with the cow, and yet he should walk away from the whole thing and bear no responsibility, no

liability whatever. To me that is quite wrong and

what I am asking is that the High Court hear the

appeal, and I am asking that the High Court should
eventually follow the Trigwell decision, follow its
own majority decision, and find that the driver of

the vehicle has some liability in this case.

TOOHEY J:  But Mr Le Poidevin, what the Act says is that now

liability in the sort of circumstances that existed

here shall be determined in accordance with the

principles of the law of negligence. You have

findings through the courts below that the driver of this vehicle was not negligent, that there was negligence on the part of the owner of the animal

in allowing it, or not preventing it, from straying

on to the highway. Does that not simply point up

that it was a case decided on its facts?

MR LE POIDEVIN: It necessarily involves an interpretation

of section 17A as to who or what caused the
accident, whether it was caused by the driver or

the animal. If you are going to accept that is the

situation, you would say that virtually every case

in which a driver hits an animal on the road

liability is always against the farmer or the owner

of the stock and never against the owner of the

vehicle or the driver of the vehicle. It strikes

me that in virtually the vast majority of these

cases it is the driver who is going to be found

liable of negligence. What I am asking, by way of

proper conclusion is that there was negligence on appeal, is that the facts be reconsidered and the the part of the driver.

BRENNAN J: Well, if there were negligence on the part of the

driver here, the question would arise as a matter
of contributory negligence, would it not? The

first question is one of whether the defendant is

negligent. Now the court has found that the

defendant was negligent. You are asking the Court

to find that the plaintiff was also negligent, are

you?

MR LE POIDEVIN: Yes.

Le Poidevin	4/9/91
BRENNAN J:	Why should we grant special leave to consider

the facts of the case to determine whether the
plaintiff was negligent in the sense of failing to

take proper care for his own safety?

MR LE POIDEVIN:  I am asking that the Court follow its own

previous decision as to what constitutes negligent

driving, whereas the supreme court has refused to

follow the Trigwell decision. To my mind - - -

BRENNAN J:  The previous decision was related to a question of whether or not the defendant was negligent. In

that case the court held that the defendant was not

negligent because of the rule in Searle v Wallbank.

In comes section 17A, and in the present case the

defendant has been found negligent under that

section. You are asking for the Court to grant

special leave simply to find whether the plaintiff

was also negligent.

MR LE POIDEVIN: Yes, Your Honour. I am also submitting

that the Trigwell case went further than that, that

there was a real finding by the majority of the

Court that there was negligent driving and that the

law has not changed that much merely by virtue of

the amending legislation. It simply says, basic to

what the situation was before, that it has now been

determined in accordance with the law of

negligence. That is as far as the determination,

to the extent that the driver was liable has

17A has not been before the High Court before, because of the Trigwell decision by the Court which	probably always been the case, but because section follow on this question of negligent driving, I am
asking that the Court does hear the appeal.

BRENNAN J:	We need not trouble you, Mr Radbone.
MR RADBONE:	Thank you, Your Honour.

BRENNAN J: This is a case which, in the manner in which it

has been presented, is one which turns on its own

peculiar facts. There is no ground advanced which

would justify the grant of special leave to appeal

to this Court. Accordingly, special leave will be

refused.

MR RADBONE:	Your Honours, I seek an order as to costs.
BRENNAN J:	Do you have anything to say about that,

Mr Le Poidevin?

Le Poidevin 6 4/9/91

MR LE POIDEVIN:  No, Your Honour, I leave it to the Court.

BRENNAN J: It will be refused with costs.

AT 2.44 PM THE MATTER WAS ADJOURNED SINE DIE

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