Smith v Williams - [2006] QCA 439

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Williams & Ors [2006] QCA 439

PARTIES:

SHAYNE QUINTON SMITH
(plaintiff/respondent)
v
CAMPBELL PATRICK WILLIAMS
(first defendant/first appellant)
CAROLINE ANNE WADDELL
(second defendant/second appellant)
PETER WADDELL
(third defendant/third appellant)
STATE OF QUEENSLAND
(fourth defendant)
HERBERTON SHIRE COUNCIL
(fifth defendant)

FILE NO/S:

Appeal No 5525 of 2006
SC No 166 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

3 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2006

JUDGES:

McMurdo P, Keane and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed1.

Orders made below are set aside2.

Amended statement of claim is struck out and the action dismissed insofar as it relates to the first, second and third defendants 3.

Respondent to pay the appellants' costs of the action and of the appeal4.

CATCHWORDS:

HIGHWAYS - NEGLIGENCE AND NUISANCE - rule in Searle v Wallbank - respondent was injured while driving loaded fuel tanker and attempting to avoid cattle crossing highway - appellants were occupiers of nearby property and carried on business of grazing cattle - for present purposes cattle on highway were agreed to be owned by appellants - appellants applied for summary judgment on basis of rule in Searle v Wallbank - learned primary judge ruled that it was not possible to be assured that rule applied in these circumstances - appellants were said to have 'allowed' or 'permitted' cattle to graze on land adjacent to the highway and to cross and recross highway - meaning of 'allow' - meaning of 'permit' - whether the rule in Searle v Wallbank applies in the circumstances of the case

Deen v Davies [1935] 2 KB 282, considered
Fabian v Welsh [1999] QCA 365; Appeal No 12029 of 1998, 7 September 1999, cited
Heath's Garage Ltd v Hodges [1916] 2 KB 370, cited
Searle v Wallbank [1947] AC 341, considered
State Government Insurance Commission v Trigwell (1979) 142 CLR 617, considered
Tophams Ltd v Sefton [1967] 1 AC 50, applied

COUNSEL:

H B Fraser QC, with R C Morton, for the appellants
J R Baulch SC for the respondent

SOLICITORS:

McInnes Wilson for the appellants
Broadley Rees acting as Town Agent for Williams Graham Carman for the respondent

McMURDO P: I agree with Keane JA.

KEANE JA: The appellants are the first, second and third defendants in an action brought by the respondent to recover damages for personal injuries suffered by him on 17 April 2002. The respondent was injured when the loaded fuel tanker he was driving overturned while he was attempting to avoid cattle which were crossing the Kennedy Highway in the vicinity of Innot Hot Springs. The appellants were the occupiers of a nearby property where they carried on the business of grazing cattle. For present purposes, it is common ground that the cattle on the highway were…

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 Smith v Williams

Details

AGLC: Smith v Williams [2006] QCA 439
Case: [2006] QCA 439
Decision Date: 3 November 2006

CaseChat Overview and Summary

The appeal before the court was brought by the appellants, Smith, against the respondent, Williams, following an incident where Williams was injured while driving a loaded fuel tanker. The injury occurred as Williams attempted to avoid cattle crossing the highway. The appellants, who were the occupiers of a nearby property and engaged in the business of grazing cattle, applied for summary judgment based on the rule in Searle v Wallbank. The primary judge dismissed the application, finding that the rule did not apply given the circumstances, including the appellants' alleged allowance or permission for the cattle to graze on land adjacent to the highway and cross and recross it.

The central legal issue for the court was whether the rule in Searle v Wallbank applies in cases where an occupier allows or permits livestock to cross a highway, leading to an accident involving a third party. The court examined the meaning of 'allow' and 'permit' in this context, considering whether such actions by the occupier absolve them of liability for negligence. The court reviewed previous cases such as Deen v Davies, Fabian v Welsh, Heath's Garage Ltd v Hodges, Searle v Wallbank, State Government Insurance Commission v Trigwell, and Tophams Ltd v Sefton to ascertain the scope and application of the rule.

The court held that the rule in Searle v Wallbank does not apply in these circumstances. The appellants were found to have 'allowed' or 'permitted' the cattle to graze on land adjacent to the highway and cross and recross it. The court found that the primary judge was correct in ruling that it was not possible to be assured that the rule applied. The court concluded that the appellants' actions contributed to the conditions that led to the accident and thus they could not rely on the rule to avoid liability. The appeal was allowed, the orders made by the primary judge were set aside, and the amended statement of claim was struck out and the action dismissed insofar as it related to the first, second, and third defendants. Additionally, the respondent was ordered to pay the appellants' costs of the action and of the appeal.

Orders

Orders of the court

Appeal allowed1.

Orders made below are set aside2.

Amended statement of claim is struck out and the action dismissed insofar as it relates to the first, second and third defendants 3.

Respondent to pay the appellants' costs of the action and of the appeal4.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Smith v Williams & Ors [2006] QCA 439
PARTIES:	SHAYNE QUINTON SMITH (plaintiff/respondent) v CAMPBELL PATRICK WILLIAMS (first defendant/first appellant) CAROLINE ANNE WADDELL (second defendant/second appellant) PETER WADDELL (third defendant/third appellant) STATE OF QUEENSLAND (fourth defendant) HERBERTON SHIRE COUNCIL (fifth defendant)
FILE NO/S:	Appeal No 5525 of 2006 SC No 166 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	3 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2006
JUDGES:	McMurdo P, Keane and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal allowed1. Orders made below are set aside2. Amended statement of claim is struck out and the action dismissed insofar as it relates to the first, second and third defendants 3. Respondent to pay the appellants' costs of the action and of the appeal4.
CATCHWORDS:	HIGHWAYS - NEGLIGENCE AND NUISANCE - rule in Searle v Wallbank - respondent was injured while driving loaded fuel tanker and attempting to avoid cattle crossing highway - appellants were occupiers of nearby property and carried on business of grazing cattle - for present purposes cattle on highway were agreed to be owned by appellants - appellants applied for summary judgment on basis of rule in Searle v Wallbank - learned primary judge ruled that it was not possible to be assured that rule applied in these circumstances - appellants were said to have 'allowed' or 'permitted' cattle to graze on land adjacent to the highway and to cross and recross highway - meaning of 'allow' - meaning of 'permit' - whether the rule in Searle v Wallbank applies in the circumstances of the case Deen v Davies [1935] 2 KB 282, considered Fabian v Welsh [1999] QCA 365; Appeal No 12029 of 1998, 7 September 1999, cited Heath's Garage Ltd v Hodges [1916] 2 KB 370, cited Searle v Wallbank [1947] AC 341, considered State Government Insurance Commission v Trigwell (1979) 142 CLR 617, considered Tophams Ltd v Sefton [1967] 1 AC 50, applied
COUNSEL:	H B Fraser QC, with R C Morton, for the appellants J R Baulch SC for the respondent
SOLICITORS:	McInnes Wilson for the appellants Broadley Rees acting as Town Agent for Williams Graham Carman for the respondent