Smith v Williams

[2005] QSC 267

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Williams & Ors [2005] QSC 267

PARTIES:

SHAYNE QUINTON SMITH
(Plaintiff)
v
CAMPBELL PATRICK WILLIAMS
(First Defendant)
CAROLINE ANNE WADDELL
(Second Defendant)
PETER WADDELL
(Third Defendant)
THE STATE OF QUEENSLAND
(Fourth Defendant)
HERBERTON SHIRE COUNCIL
(Fifth Defendant)

FILE NO/S:

166 of 2005

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

2 September 2005

DELIVERED AT:

Cairns

HEARING DATE:

1 August 2005

JUDGE:

Jones J

ORDER:

1. The application is dismissed.
2. The plaintiff has leave to amend his notice of Claim against the first, second and third defendants within 28 days.

3. The costs of and incidental to this application are reserved.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – application for summary judgment – whether plaintiff has real prospect of success at trial

Deputy Commissioner of Taxation v Salcedo [2005] QCA 227, applied

HIGHWAYS – NEGLIGENCE AND NUISANCE – rule in Searle v Wallbank – whether facts pleaded in statement of claim can exclude the operation of the rule in Searle v Wallbank

Searle v Wallbank [1947] 1 All ER 12, considered
State Government Insurance Commission v Trigwell (1979) 142 CLR 617, considered
Cunningham v. Whelan (1918) 52 Ir LT 67, considered

COUNSEL:

Mr R Morton for the applicants
Mr G Baulch SC for the respondent

SOLICITORS:

McInnes Wilson for the applicants
Williams Graham Carman for the respondent

Introduction

1. By this application, the first, second and third defendants seek summary judgment for themselves against the plaintiff.  They submit that the rule in Searle v Wallbank[1] means the plaintiff has no real prospect of succeeding in his claim against them, entitling them to summary judgment pursuant to r 293 UCPR. Alternatively they submit that due to the existence of the aforementioned rule, the plaintiff’s pleading discloses no reasonable cause of action and ought to be struck out pursuant to r 171 UCPR. Both submissions are grounded in essentially the same reasoning.

   [1] [1947] 1 All ER 12

Facts

1. At about 5.20am on 17 April 2002 the plaintiff was driving a loaded fuel tanker along the Kennedy Highway near the property occupied by the first and second defendants.  As the plaintiff was driving the tanker over a crest of the hill, he noticed a number of cattle on the highway.  He swerved to avoid them.  The tanker overturned and burst into flames, causing the plaintiff severe injuries.[2]

   [2] Para 13 – 14 of Statement of Claim filed 11/04/2005

1. The pleadings raise an issue of whether the cattle were in fact owned by the first second and third defendants.  But for the purposes of this application, Mr Morton of Counsel for these defendants submitted I should assume ownership of the cattle by them.[3]

   [3] Transcript p 4

1. In April 2005 the plaintiff commenced an action in the Supreme Court, claiming damages for personal injuries and consequential loss as a result of negligence or nuisance.  He claims the first, second and third defendants were negligent for allowing significant numbers of cattle…