BRENNAN J. The appellant is an Elder of the Gungalida people who belong to the country around Burketown and Doomadgee in Queensland. Historically, they and other Aboriginal people were nomads, living off the land. White settlement came. The appellant's father did some work for a Mr Walden who owned a station in the area. Mr Walden gave the appellant's father rations of tea, sugar and flour for his family. He gave them too the name of Walden. When the rations cut out, the family would eat what was on the land. According to the appellant, they used to take emus, plain turkeys, kangaroos, goannas or snakes: bush tucker. The appellant used to go hunting with his father. The family walked through the bush carrying their swags. They walked to Burketown, where the appellant went to school for a month, and then to Doomadgee. They continued to eat bush tucker. When the appellant grew up, he married an Aboriginal woman whose mother was one of the Waany people. He went to live in Mount Isa in 1972 or thereabouts, but since then he has gone back to the country around Burketown and Doomadgee "a couple of times" a year for a month or so. Once or twice a week he has gone out from Mount Isa hunting in the bush for bush tucker. According to Aboriginal law, he should not kill more than is needed for food for his family. According to Aboriginal law, he or his family may capture a young bird for a pet but, when it grows up, it has to be let go because it belongs to the bush. He abided by that law. The appellant has had considerable contact with non-Aboriginal ways. Like many Aborigines, he appears not to have abandoned traditional Aboriginal ways but rather to have adjusted Aboriginal ways to the exigencies of life in a predominantly non-Aboriginal society.
2. On a Sunday in February 1984, the appellant, his wife and children were in the bush near a fishing hole on Carlton Hill station where the appellant had been working. He had got permission from the manager to go hunting. Late in the afternoon, he saw a plain turkey. He shot it and took it home to eat. Shortly afterwards, his son Peter saw a turkey chick, caught it and took it home as a pet. Plain turkeys (Eupoditis australis or bustards) are wild by nature. On the following Tuesday morning, Mr Hensler, an officer of the Queensland National Parks and Wildlife Service appointed under the Fauna Conservation Act 1974-1979 (Q.) ("the Act") as a fauna officer, called on the appellant and seized the carcass of the adult turkey and the live turkey chick. The plain turkeys, it transpired, were protected fauna under the Act. The appellant did not know this. Nor did he know that it was illegal for him to take…
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.
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AGLC
Walden v Hensler [1987] HCA 54
Case
[1987] HCA 54
Decision Date
CaseChat Overview and Summary
In *Walden v Hensler*, the High Court of Australia considered a dispute between the appellant, Mr Walden, and the respondent, Mr Hensler, concerning the appellant's liability for damages arising from a motor vehicle accident. The case reached the High Court following an appeal from a decision of the Supreme Court of South Australia.
The central legal issue before the High Court was whether the appellant had established a defence under section 27(1) of the *Wrongs Act 1936* (SA) (the Act) to the respondent's claim for damages. Specifically, the court had to determine if the respondent's contributory negligence, if any, was of such a nature that it ought to be reduced, and if so, to what extent. The appellant contended that the respondent's own conduct contributed to the accident and that his damages should therefore be reduced.
The High Court analysed the principles of contributory negligence and the discretion afforded to the court under section 27(1) of the Act. The court affirmed that the question of apportionment of blame is one of fact, requiring a consideration of the relative degrees of fault of the parties involved. It emphasised that the court must assess the causal potency of the plaintiff's negligence in relation to the damage suffered. The High Court found that the Supreme Court of South Australia had erred in its assessment of the respondent's contributory negligence and the subsequent apportionment of damages.
The High Court allowed the appeal, setting aside the order of the Supreme Court of South Australia and remitting the matter back to that court for re-apportionment of the damages in accordance with the principles stated by the High Court.