State Government Insurance Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617 (19 September 1979)

HIGH COURT OF AUSTRALIA

Animals - Precedent

CATCHWORDS

Precedent - House of Lords - Rule of common law - Laws of England introduced into South Australia by colonists - Whether capable of being applied in South Australia at time it became a settled colony - Acts Interpretation Act, 1915 (S.A.), s. 48.

HEARING

APPEAL from the Supreme Court of South Australia.

DECISION

The following written judgments were delivered: -

BARWICK C.J. The relevant evidence and findings of fact given and made at submissions of the parties, are fully recounted in the reasons for judgment prepared by my brother Mason which I have had the advantage of reading. I have no need to supplement my brother's recital. I am of opinion that Searle v. Wallbank (1947) AC 341 was correctly decided and that the common law as so laid down became on settlement part of the law of the province of South Australia. I agree with the reasons expressed by my brother Mason for these conclusions. (at p623)

2. In my opinion, the common law as to the liability of a landowner for stock straying from his land on to the highway should be decided in the same sense as Searle v. Wallbank if it had to be decided in the conditions of today. Being of that opinion, a discussion as to the possibility of reaching a different conclusion as to the common law because of changed circumstances is not strictly necessary. Recently, in Dugan v. Mirror Newspapers Ltd. [1978] HCA 54; (1978) 142 CLR 583 , I expressed myself as to the limited nature of the Court's function in the declaration of the common law. Where the law has been declared by a court of high authority, this Court, if it agrees that that declaration was correct when made, cannot alter the common law because the Court may think that changes in the society make or tend to make that declaration of the common law inappropriate to the times. The maxim that when the reason for its making has ceased the law itself ceases to bind has no application in such circumstances. The maxim is limited in its use to cases of the kind exhausted in Broom's Legal Maxims, 10th ed. (1939), pp. 97-99. It can, of course, decide that that declaration was erroneous when made and itself declare what the common law ought properly be held to be. If there is no authority upon a point, the court may decide what the law is: see Mutual Life & Citizens' Assurance Co. Ltd. v. Evatt [1968] HCA 74; (1968) 122 CLR 556, at p 563 . (at p623)

3. I also agree with my brother Mason in thinking that if the view of Lord du Parcq in Searle v. Wallbank was that there may be exceptional circumstances beyond the known and relevant propensity of the straying animal in which negligence in the landowner may be found, it is not an acceptable view and ought not to be acted upon. (at p623)

4. Whether the finding by the learned trial judge of negligence on the part of the deceased driver, Miss Rooke, ought to be disturbed is a question which has given me much concern. I am as insistent as ever that findings of fact made at a trial where there is evidence to support them ought not, in the proper exercise of judicial restraint, to be set aside merely because the appellate court, if it had had the resolution of the case in the first instance, would have reached a different conclusion on that evidence. (at p623)

5. But I have come to the conclusion in this case that there was error in the approach to and the consideration of the facts by the trial judge. My brother Mason has examined his Honour's findings and the evidence in relation thereto. I am in agreement with my brother in his analysis and in his conclusions other than his last conclusion as to the failure of Miss Rooke to bring her car to a standstill or otherwise to avoid a collision with the vehicle driven by the Trigwells. (at p624)

6. As to this last point, it seems to me to be setting far too high a standard for a driving member of the public to conclude the presence of negligence from the fact that a collision was not avoided by braking or other action after sheep, of whose presence the driver was unaware, had been struck at a speed of some 45 m.p.h. at night. The scene, as my brother accepts it and as I see it on the evidence, is that the deceased driver, driving reasonably, had occasion to dim her lights, passed an oncoming vehicle and then was suddenly confronted by one or two sheep, whether stationary or mobile we do not know, with which her car came into immediate and quite violent contact. What consequence the impact had on the driver and her capacity to control the car is not known. That brakes were not then applied and so strongly as to bring the car to a halt, or near halt, does not betoken to my mind a want of reasonable care on the part of the driver. (at p624)

7. I would conclude that this is a case in which, for the reasons given by my brother Mason supplemented by what I have said, the finding of negligence by the trial judge ought to be set aside. I would allow the appellant's appeal as against the Trigwells but dismiss it so far as the Kerins are concerned. (at p624)

GIBBS J. I have had the advantage of reading the judgment prepared by my brother Mason and am in agreement with his reasons and his conclusions. (at p624)

2. The main argument of the appellant was not that Searle v. Wallbank did not correctly express the principles of the common law of England, but that the rule laid down in that case was inapplicable to the conditions of South Australia and for that reason was not received as part of the law of the colony, or alternatively that, if so received, it is unsuitable to modern conditions and should no longer be treated as part of the law of that State. In Searle v. Wallbank, Viscount Maugham found it necessary to consider the history of the enclosure of lands in England from early medieval times until the twentieth century, and the law as stated in that case was undoubtedly founded on the "ancient social conditions" of that country: Brock v. Richards (1951) 1 KB 529, at p 534 . That circumstance does not however necessarily mean that that rule was or is inapplicable to conditions in South Australia. (at p625)

3. It has never been in doubt that South Australia was a settled colony within the established rules governing the application of English law to British possessions abroad. According to the statement of Blackstone which has been frequently cited, colonists carry with them to a settled colony "only so much of the English law, as is applicable to their own situation and the condition of an infant colony" (Commentaries, vol. 1, p. 107). It was held in Delohery v. Permanent Trustee Co. of N.S.W. [1904] HCA 10; (1904) 1 CLR 283 at pp 310-311 that in considering whether a particular rule of law was introduced into a colony on its settlement, the question is not whether the law is a beneficial or convenient one, but whether its administration or application was practicable having regard to the conditions existing in the colony, and Dugan v. Mirror Newspapers [1978] HCA 54; (1978) 142 CLR 583 provides a recent example of this principle. The date as at which the applicability of the law falls to be considered is the date of settlement, or such other date as is fixed by statute. In the case of South Australia the relevant date is 28th December 1836. But although that date is most significant so far as the adoption of statute law is concerned, it is of less importance in considering the application of the common law. Legislation passed after that date will of course not be applicable unless it is expressly applied. But the common law which was adopted is not frozen in the form which it assumed in 1836. It is the common law rules as expounded from time to time that are to be applied: cf. Reg. v. Callope (1965) Qd R 456, at p 465 . To adapt the example given by Windeyer J. in Skelton v. Collins [1966] HCA 14; (1966) 115 CLR 94, at p 134 , if it is not right to say that the principle of Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562 became part of the law of South Australia in 1836, it is at least true to say that a body of principles, including those that developed into the rule subsequently expressed in that case, formed part of the law of South Australia from 1836 onwards. It would be no reason for holding that the rule in Searle v. Wallbank (1947) AC 341 does not apply in South Australia that the rule had not been stated precisely in its present form in 1836. (at p625)

4. It is clear, notwithstanding some passages in the authorities which may convey a different impression, that a rule of the common law will not be held inapplicable to the conditions of a colony simply because it could not have been applied in the circumstances existing at the very date of settlement. In Cooper v. Stuart (1889) 14 App Cas 286, at p 292 , their Lordships, after referring to the statement of Blackstone to which I have referred, said: "If the learned author had written at a later date he would probably have added that, as the population, wealth, and commerce of the Colony increase, many rules and principles of English law, which were unsuitable to its infancy, will gradually be attracted to it." This, as I said in Dugan v. Mirror Newspapers [1978] HCA 54; (1978) 142 CLR 583 means that parts of the common law which are suitable to a more advanced state lie dormant until occasion arises for enforcing them. It is not however true that a law which once becomes part of the law of a territory ceases to become part of that law because changes in circumstances have rendered it unsuitable. Once the law becomes part of the law of the territory it remains so until it is repealed or amended by legislation. (at p626)

5. In inquiring whether a statute has been introduced into a particular territory the question is sometimes put whether the Act in question was "a law of local policy adapted solely to the country in which it was made" (Delohery v. Permanent Trustee Co. of N.S.W. (1904) 1 CLR, at p 310 , citing Attorney-General v. Stewart (1817) 2 Mer 143, at p 160 (35 ER 895, at p 900) , or in other words whether the Act "was founded on reasons which were peculiar to England in their application, and which had no reference to the conditions of an infant settlement": Quan Yick v. Hinds [1905] HCA 10; (1905) 2 CLR 345, at p 367 . A rather more liberal approach is taken when the adoption of a rule of the common law is under consideration. The reasons for the rule are then less important than the nature of the rule itself, and the rule will only be held not to have been imported into the territory if there is some "solid ground" to establish that it was inapplicable to the conditions there: Leong v. Chye (1955) AC 648, at p 665 . As Professor Castles has pointed out in an article entitled "The Reception and Status of English Law in Australia" (Adelaide Law Review, vol. 2 (1963), p. 9), in practice the Australian courts have been disinclined to take into account special local conditions in deciding whether the general principles of unenacted law should apply. The cases in which a principle of the common law has been held inapplicable to a settled colony are comparatively few. Indeed, some authorities speak as though the whole of the common law became applicable to a newly settled colony: Falkland Islands Co. v. The Queen (1863) 2 Moo NS 266, at p 273 [1863] EngR 782; (15 ER 902, at p 905) ; Municipality of Pictou v. Geldert (1893) AC 524, at p 527 . The presumption, at least, is that the entire fabric of the common law, not shreds and patches of it, was carried with them by the colonists to the newly occupied territory. (at p627)

7. Although the rules of the common law develop as conditions change, a settled rule is not abrogated because the conditions in which it was formulated no longer exist. It is now fashionable to criticize the rule in Searle v. Wallbank as anachronistic, inconsistent with principle and unsuitable to modern conditions, but it is by no means obvious that it would be a reasonable and just course simply to abolish the rule. The question whether the rule should be altered, and if so how, is clearly one for the legislatures concerned rather than for the courts. I agree with what has been said on this subject in Ross v. McCarthy (1970) NZLR 449, at pp 456, 457 , and by Mahoney J.A. in his dissenting judgment in Kelly v. Sweeney (1975) 2 NSWLR 720, at pp 739-740 and by Bray C.J. in Bagshaw v. Taylor (1978) 18 SASR, at p 579 . (at p628)

8. It is clear that there is no legislation in South Australia that has modified the common law rule laid down in Searle v. Wallbank (1947) AC 341 . The decision of the Full Court in Bagshaw v. Taylor (1978) 18 SASR 564 , which was followed by the learned trial judge in the present case, was correct. (at p628)

9. The argument that, consistently with Searle v. Wallbank, the Kerins can be held to be liable for negligence must be rejected. The "special circumstances" to which Lord du Parcq refers in Searle v. Wallbank (1947) AC, at p 360 , must, I agree, be limited to circumstances in which a particular animal has, to the knowledge of the defendant, a special vicious or mischievous propensity against which there is a duty to guard; a mere proclivity towards straying is not enough: Brock v. Richards (1951) 1 KB, at pp 535-537 . (at p628)

10. The question whether Miss Rooke was guilty of negligence depended solely on the proper inferences to be drawn from undisputed facts. In such a case, in my opinion, this Court on appeal is in as good a position as the trial judge to decide the question, and is bound to form and give effect to its own conclusions: see Warren v. Coombes Ante, p. 531. . However, I agree, for the reasons given by my brother Mason, that the learned trial judge was correct in holding that Miss Rooke was guilty of negligence. (at p628)

11. The appeal and the cross-appeal should both be dismissed. (at p628)

STEPHEN J. I have had the advantage of reading the reasons for judgment of Mason J. I agree with all that his Honour has said, not only in the course of his consideration of the appellant's submissions relating to Searle v. Wallbank and in his disposal of the question of liability founded upon nuisance but also in his conclusions concerning the difficult question of Miss Rooke's alleged negligence. (at p628)

3. I would dismiss the appeal as against the Trigwells and the Kerins and I would also dismiss the Trigwells' cross-appeal against the Kerins. (at p629)

MASON J. This is an appeal from a decision of the Supreme Court of South Australia (King J.) in which judgment was entered for the first respondents ("the Trigwells") against the appellant Insurance Commission (1978) 19 SASR 280 . (at p629)

2. The Trigwells had brought an action for damages for personal injuries which they had sustained when the vehicle in which they were travelling was involved in an accident with a vehicle driven by one Christine Avis Rooke. By their statement of claim, the Trigwells alleged negligence on the part of Miss Rooke. Miss Rooke had been killed in the accident and the appellant was sued as her compulsory third party insurer. (at p629)

3. The second respondents ("the Kerins") were also joined as defendants in the action. By their statement of claim, the Trigwells alleged that Miss Rooke had collided with two sheep on the highway immediately before the accident and that, as a result of, or in an attempt to avoid, the collision with the sheep, she had collided with the Trigwells. It was alleged that the presence of the sheep on the highway was the result of negligence on the part of the Kerins and further, or in the alternative, that the presence of the sheep constituted a nuisance which the Kerins had failed to prevent. The Kerins were sued as the occupiers of land adjoining the highway on which the accident had occurred. (at p630)

4. The Trigwells claimed that either the deceased driver or the Kerins or both had been responsible for the accident. (at p630)

5. By its defence, the appellant denied that there had been negligence on the part of the deceased driver and alleged that, even if there were such negligence, the respondent Eric Gerald Trigwell, who had been driving the Trigwells' vehicle at the time of the accident, was guilty of contributory negligence. The appellants also issued a third party notice for contribution against the Kerins. (at p630)

6. The Kerins denied the allegations of negligence and nuisance. They maintained that, by virtue of the rule in Searle v. Wallbank (1947) AC 341 , they were not liable in negligence for the loss and damage suffered by the Trigwells in the accident. They also denied that they were under any duty to prevent any nuisance which might be found to have existed. (at p630)

7. The Kerins alleged that there had been contributory negligence on the part of Eric Gerald Trigwell, an allegation which he denied, and issued a third party notice for contribution against the appellant. (at p630)

8. King J. held that the deceased driver had been guilty of negligence, thereby causing the accident in which the Trigwells had been injured, and that the Trigwells were therefore entitled to succeed against the appellant Insurance Commission. He held that there had been no negligence on the part of the respondent Eric Gerald Trigwell. (at p630)

9. His Honour concluded that the Kerins were under no liability in either nuisance or negligence. His Honour held that the presence of the two sheep on the highway was incapable of constituting a public nuisance for which the Kerins were responsible. Moreover, he held that, applying the rule in Searle v. Wallbank, in the circumstances of the case, the Kerins were under no duty of care to prevent the sheep from straying on to the highway and hence that no negligence on the part of the Kerins could be established. His Honour followed the decision of the Full Court of the Supreme Court of South Australia in Bagshaw v. Taylor (1978) 18 SASR 564 which held that the rule in Searle v. Wallbank was applicable in South Australia. (at p631)

10. In the result, then, judgment was entered for the Trigwells against the appellant Insurance Commission. (at p631)

11. In this Court, the appellant challenged the finding that there had been negligence on the part of the deceased driver. The appellant also contested the conclusion of the Supreme Court that the Kerins were under no liability in negligence. It was submitted that the rule in Searle v. Willbank did not form part of the law of South Australia and that, accordingly, upon the evidence, there should have been a finding of negligence made against the Kerins. In the alternative, it was argued that, if the rule in Searle v. Wallbank did form part of the law of South Australia, there were, in this case, "special circumstances" within the meaning of the rule which justified a finding of negligence against the Kerins. Finally, the appellant contended that the Supreme Court had erred in concluding that the Kerins were not guilty of nuisance. The Trigwells, who cross-appealed, supported the appellant's case against the Kerins. (at p631)

12. It will be convenient to consider first the liability of the Kerins in negligence. This depends very largely on what was decided in Searle v. Wallbank. Bray C.J. in Bagshaw v. Taylor has examined the effect of the decision and the operation in Australia of the principle which it enunciates. However, as this case is in effect an appeal against Bagshaw v. Taylor as this Court has greater freedom to depart from a decision of the House of Lords than the Supreme Court of a State, it is necessary that I say something of Searle v. Wallbank. (at p631)

13. There the House of Lords decided that the owner or occupier of a property adjoining the highway is under no legal obligation to users of it so to keep and maintain his hedges, fences and gates as to prevent animals from straying on to it, and that he is not under any duty as between himself and users of it to take reasonable care to prevent any of his animals, not known to be dangerous, from straying on to it. The decision has been much discussed, indeed criticized, but its effect is to settle what has been the common law of England from early times. (at p631)

14. We were invited to hold that the case was wrongly decided and to say that the earlier cases supported the view that the landowner or occupier of land was not immune from liability to negligence arising from his failure to fence securely his land so as to prevent stock from straying and causing injury to users of the highway. It is not an invitation to which I would accede. (at p632)

15. Salmond on Torts, 17th ed. (1977), p. 344, refers to the rule as "long-standing" and as one which "was founded upon our ancient social conditions and was in no way related to, or liable to be qualified by, such matters as the relative levels of fields and highway, the nature of the highway, or the amount of traffic upon it". The author cites Brock v. Richards (1951) 1 KB 529, at p 534 as authority for this statement. (at p632)

17. The attack on Searle v. Wallbank (1947) AC 341 was chiefly founded on the claim that the rule which it enunciated is illogical and that the conditions on which it was based historically have altered in a fundamental way. According to the appellant, it is illogical that the occupier of land should be liable for damage done to a neighbour's property by reason of his animals straying and that he should be immune from liability for personal injury done by his animals (not known to be dangerous) straying on to the highway through his failure to maintain his fences. The explanation for this apparent illogicality is, of course, to be found in the historical facts. As Neville J. said in Heath's Garage Ltd. v. Hodges (1916) 2 KB, at p 382 : "In my opinion the experience of centuries has shown that the presence of domestic animals upon the highway is not inconsistent with the reasonable safety of the public using the road." (at p633)

18. It is then said that as there was a radical change in the relevant conditions, a change brought about by the development of roads and highways, the growth of fast-moving motor traffic on a large scale and a substantial increase in the fencing of properties, the House of Lords should have held that the rule was no longer appropriate to modern circumstances and that the ordinary principles of negligence should apply to the occupier of land whose straying animals caused accidents on the highway. In short, it is argued that the House of Lords should have reviewed the existing law in conformity with the suggestions made by the Court of Appeal in Hughes v. Williams. (at p633)

19. I do not doubt that there are some cases in which an ultimate court of appeal can and should vary or modify what has been thought to be a settled rule or principle of the common law on the ground that it is ill-adapted to modern circumstances. If it should emerge that a specific common law rule was based on the existence of particular conditions or circumstances, whether social or economic, and that they have undergone a radical change, then in a simple or clear case the court may be justified in moulding the rule to meet the new conditions and circumstances. But there are very powerful reasons why the court should be reluctant to engage in such an exercise. The court is neither a legislature nor a law reform agency. Its responsibility is to decide cases by applying the law to the facts as found. The court's facilities, techniques and procedures are adapted to that responsibility; they are not adapted to legislative functions or to law reform activities. The court does not, and cannot, carry out investigations or enquiries with a view to ascertaining whether particular common law rules are working well, whether they are adjusted to the needs of the community and whether they command popular assent. Nor can the court call for, and examine, submissions from groups and individuals who may be vitally interested in the making of changes to the law. In short, the court cannot, and does not, engage in the wide-ranging inquiries and assessments which are made by governments and law reform agencies as a desirable, if not essential, preliminary to the enactment of legislation by an elected legislature. (at p634)

20. These considerations must deter a court from departing too readily from a settled rule of the common law and from replacing it with a new rule. Certainly, in this case they lead to the conclusion that the desirability of departing from the rule in Searle v. Wallbank is a matter which should be left to Parliament. It is beyond question that the conditions which brought the rule into existence have changed markedly. But it seems to me that in the division between the legislative and the judicial functions it is appropriately the responsibility of Parliament to decide whether the rule should be replaced and, if so, by what it should be replaced. The determination of that issue requires an assessment and an adjustment of the competing interests of motorists and landowners; it might even result in one rule for urban areas and another for rural areas. It is a complicated task, not one which the court is equipped to undertake. (at p634)

21. My conclusion is, then, that we should accept that what was and has been the common law for England was correctly decided by Searle v. Wallbank. The next question is whether the law as declared by the House of Lords in that case represents the law of South Australia. The proper approach to a determination of such a question was adopted by the Supreme Court of Victoria in Brisbane v. Cross (1978) VR 49 and by the Supreme Court of South Australia in Bagshaw v. Taylor. Accordingly, the inquiry must be whether the law in Searle v. Wallbank was applicable in the colony of South Australia upon its settlement and further, whether the law, if so applicable, has been varied or abolished by subsequent local legislation. (at p634)

22. It is a well-established principle that, in settled colonies, so much of the common law of England is introduced as is applicable to the situation of the colonists and the condition of the colony (see Halsbury's Laws of England, 4th ed., vol. 6, p. 589; Cooper v. Stuart (1889) 14 App Cas 286, at p 291 ). The applicability of the law in question depends not upon whether the court considers the law suitable or beneficial for the colony, but upon whether the law is capable of application in the colony (Delohery v. Permanent Trustee Co. of N.S.W. (1904) 1 CLR, at pp 310-311 ). The date upon which the applicability of the English common law to the settled colony of South Australia falls to be considered has been fixed by local enactment. Section 3 of Act No. 9 of 1872 (S.A.) provides that "In all questions as to the applicability of any laws or statutes of England to the Province of South Australia, the said province shall be deemed to have been established on the 28th day of December 1836". This section, it might be noted, was a re-enactment of s. 1 of Ordinance No. 2 of 1843 (S.A.), the latter provision having been repealed by s. 2 of the 1872 Act. In so far as s. 3 of the 1872 Act relates to the applicability of the statutes of England to the Province of South Australia, it has been impliedly repealed by s. 48 of the Acts Interpretation Act, 1915 (S.A.) which provides that "For the purpose of determining the applicability or otherwise within the State of any Act of the Parliament of the United Kingdom, the State shall be deemed to have been established on the twenty-eighth day of December, 1836". However, s. 3 of the 1872 Act is still in force to the extent that it relates to the applicability of "any laws . . . of England" to the Province of South Australia, the "laws . . . of England" clearly referring to the common law of England in contrast to the "statutes of England". The issue, then, is whether the common law of England, as settled by the decision of the House of Lords in Searle v. Wallbank, was applicable, in the relevant sense, to the colony of South Australia on 28th December 1836. (at p635)

23. There is no reason for holding that the rule in Searle v. Wallbank was inapplicable in South Australia on that date. The physical conditions obtaining in the colony - those relating to the state of the roads and fencing of land, and to the presence of straying stock upon the highways - were not so markedly different from those existing in England that the law could be said to be inapplicable to the colony. There was nothing in the legislation in force in the colony as at 28th December 1836 that had the effect of making the relevant common law inapplicable to the colony. (at p635)

24. Subsequent statutory provisions such as s. 14 (2) of the Impounding Act, 1920 (S.A.), permitting the impounding of cattle wandering or straying upon the road and, in effect, the imposition of a penalty upon the owner of the cattle, have not displaced the common law because they confer no private right of action upon a person injured by the straying cattle (see Searle v. Wallbank (1947) AC, at p 350 ). There has been no counterpart in South Australia to the legislation in Western Australia which required and encouraged the fencing of properties, legislation which was relied upon by the Supreme Court of Western Australia to justify the conclusion that the rule in Searle v. Wallbank is not part of the law of that State (see Thomson v. Nix (1976) WAR 141 ). (at p635)

25. The view might be taken that conditions prevailing in Australia, or some parts of Australia, are more suited to the retention of the rule in Searle v. Wallbank than the conditions which prevail in the United Kingdom. Not only is Australia predominantly rural in character but its rural interests centre very substantially around the raising and keeping of livestock. I mention these considerations, not with a view to saying that the rule ought to be retained, but so as to emphasize the point that the issue of retention or abolition calls for an assessment and a adjustment of conflicting interests, the principal interests being those of the rural landowner and occupier and those of the motorist. (at p636)

26. The fact that the United Kingdom Parliament has abolished the rule has no relevance for us, except to confirm my opinion that the question should be left to Parliament. As conditions here differ from those which prevail in the United Kingdom we cannot automatically assume that all Australian legislatures, or that the South Australian Parliament in particular, would take the same view as that which has been taken in England. With great respect to Samuels J.A. who thought otherwise in Kelly v. Sweeney (1975) 2 NSWLR, at pp 734-735 I do not consider that the abolition of the rule by the United Kingdom Parliament on the recommendation of the English Law Commission is a relevant consideration for this Court. (at p636)

27. We must proceed, therefore, on the footing that Searle v. Wallbank forms part of the law of South Australia. However, the immunity from liability for injury caused by an animal straying upon the highway which the decision establishes is not an absolute immunity. As I have already indicated, the immunity is qualified; it was recognized that liability might arise where the defendant had prior knowledge of some vicious propensity in the animal which injured the plaintiff. This qualification to the common law rule was recognized in Searle v. Wallbank (1947) AC, at pp 353-357, 358-359 and for my part I doubt whether the rule contemplated any further exception to the immunity which it acknowledged. However, Lord du Parcq in Searle v. Wallbank (1947) AC 341 appears to suggest that there might be some broader exception to the immunity. Thus, he was prepared to accept, "subject to certain reservations", that "apart from any question of liability for injury caused by an animal known to its owner to be dangerous, an owner might be liable on the ground of negligence if he could be shown to have failed in his duty to take reasonable care" (1947) AC, at p 359 . His Lordship referred to the observations of Lord Atkin in Fardon v. Harcourt-Rivington (1932) 146 LT 391, at p392 , to Deen v. Davies (1935) 2 KB 282 and to Aldham v. United Dairies (London) Ltd. (1940) 1 KB 507 . With great respect to his Lordship, I do not consider it correct to approach the liability of a defendant for injury caused by a straying animal on the footing that the general principles of negligence are applicable. The common law rule which confers immunity, albeit a qualified immunity, from such liability is a exception to the ordinary principles of negligence. And, in the area in which the rule operates, it negates the existence of a duty of care. The case of Deen v. Davies was not a case of special circumstances. It dealt with a different question, namely, whether the rule in Searle v. Wallbank has any application at all when the animal which causes injury to the plaintiff has been brought by the defendant on to the highway. It decided that Searle v. Wallbank has no application to such a case. Again, Aldham v. United Dairies (London) Ltd. (1940) 1 KB 507 was not a case of a straying animal. There the horse was brought on to the highway where it bit the plaintiff. (at p637)

28. The reference to "special circumstances" as an exception to the immunity acknowledged by the rule in Searle v. Wallbank relates to knowledge by the owner of a vicious or mischievous propensity in the animal which strays on to the highway and causes injury. In this connexion I express my agreement with the observations of Evershed M.R. in Brock v. Richards (1951) 1 KB 529 . I doubt whether topographical peculiarities can amount to "special circumstances": cf. Ellis v. Johnstone (1963) 2 QB 8 . It has not been suggested that the sheep in the present case had a mischievous propensity or that the Kerins were aware of any such propensity. (at p637)

29. The appellant argued that, even if a finding of negligence against the Kerins were precluded in the present case, liability in nuisance could nevertheless be established. A short answer to this argument is that the rule in Searle v. Wallbank comprehensively states the scope of liability for injury caused by straying animals, such that, if there is no liability in negligence, there can be no further basis for liability such as nuisance. To hold that there is a liability in nuisance for injury caused by straying animals, despite the immunity otherwise conferred by the rule in Searle v. Wallbank, would do much to subvert the operation of the rule itself. (at p637)

30. However, on the assumption that nuisance is a possible basis for liability for injury caused by straying animals, I do not consider that liability in nuisance has been established by the evidence in this case. To constitute a nuisance, there must be an obstruction to the highway, "something which permanently or temporarily removes the whole or part of the highway from public use altogether" (Trevett v. Lee (1955) 1 All ER 406, at p 409 , per Evershed M.R.). There are certainly cases which suggest that a large number of straying animals may amount to a nuisance in this sense (Ellis v. Banyard (1911) 106 LT 51 ; Cunningham v. Whelan (1918) 52 Ir LT 67 ). But here there were only two sheep on the highway on the occasion in question and I do not think that it could properly be said that the sheep seriously interfered with the common right of passage over the highway so as to constitute a nuisance (see Searle v. Wallbank (1947) AC, at p 361 ). Accordingly, no liability in nuisance against the Kerins has been made out. (at p638)

32. The judge found - (1) that, as Miss Rooke traversed the road as a passenger in a bus and later as the driver of a car, she must have been aware that sheep were frequently on and near the roadway; (2) that she was driving her Mazda at a speed of 55 m.p.h. (approximately) which was reasonable so long as her headlights were on high beam; (3) that she was required to foresee the possibility that an animal might be present on the roadway; (4) that, when she had to dip her lights for oncoming traffic, prudence demanded that she reduce her speed immediately and markedly to enable her to cope with any dangers that might arise as a result of the reduction in her range of vision and that nevertheless she failed to reduce her speed; (5) that the sheep which she struck 79 metres before colliding with the Trigwell's Holden must have come within the range of her headlights some significant time prior to impact; and (6) that, if she had sufficiently reduced her speed and if she had been keeping a proper look-out she would have been able to apply her brakes and avoid the collision with the Trigwells' Holden. (at p639)

33. The finding of negligence was expressed to be based on "excessive speed or defective look-out or both". (at p639)

34. In my opinion the evidence does not justify the finding that Miss Rooke must have been aware that sheep were frequently on and near the roadway at the point in question. The evidence does not establish the presence of sheep on the roadway when she travelled along it, either as a passenger in a bus or as a driver of a car. It is, I think, no more than speculation to say that she was aware or must have been aware that sheep were frequently on or near the roadway in the vicinity of the place where the accident occurred. (at p639)

35. The judge accepted the evidence of Mr. Raines, the driver of a car travelling south in the same direction as Miss Rooke's Mazda. His vehicle was about 100 metres behind the Mazda. According to Mr. Raines, when an oncoming vehicle approaching from the south dipped its lights, Miss Rooke dipped her lights, slackened speed and veered to the left. She then travelled along the shoulder or left-hand edge of the bitumen section of the carriageway before veering sharply to the right and colliding with the Trigwells' Holden which was then on its correct side of the carriageway. In cross-examination, Mr. Raines said that Miss Rooke slackened speed "a little before she veered" to the left. He did not mean by this that there was a slight slackening of speed on her part, because he said later "she slowed down quite a bit and I slowed down". His Honour, acknowledging this, went on to say, "a good deal of this must have resulted from the impact with the sheep". But the effect of Mr. Raines' evidence is that Miss Rooke "slowed down quite a bit" before she struck the sheep. His Honour's statement does not give full weight to what the witness said. There is nothing else to indicate that full value should not have been given to the evidence of the witness. It is probable that Miss Rooke veered to the left when she struck the sheep or perhaps, and this is less likely, when she saw the sheep ahead in her field of vision. (at p640)

36. The primary judge was also in error in thinking that the effect of the evidence of Mr. Raines was that the Mazda travelled 100 metres from the time when it slackened speed to the point of collision with the Trigwells' Holden. His Honour evidently gained this impression from answers given to questions which he put to the witness. However, later answers given in cross-examination make it clear that Mr. Raines was saying that the Mazda dipped its lights as the oncoming car approached, then slackened speed, veered to the left some five or six seconds after the oncoming car had passed and proceeded for 100 metres (approximately) from the time when it veered left to the point of collision with the Trigwells' Holden. (at p640)

37. The first question is whether Miss Rooke was negligent in failing to reduce her speed more sharply before or at the time she veered to the left. In considering this question I begin with a finding that in driving at 55 m.p.h. on high beam she was acting reasonably. For the reasons I have already given, it is wrong to say that she should have expected that there would be sheep on or near this section of the highway. Although Mr. Raines said that the oncoming vehicle dipped its headlights "a couple of times", this does not justify the conclusion that the driver was warning Miss Rooke of the presence of something on the highway or that she so understood his signal. The judge did not so find. (at p640)

38. There being nothing to indicate the presence, or possible presence, of something on or near the highway, Miss Rooke was not in my opinion acting unreasonably in slackening her speed perceptibly, having switched her headlights on low beam. It is too much to say that, as a reasonable driver, she should have reduced speed sharply or that she should have reduced her speed so that she could have stopped her vehicle within the reduced range of her vision on low beam. She was driving on a good country road in favourable conditions for visibility. The road was straight and she was travelling up an incline to the crest of a rise, so that she could expect to bring her vehicle to a stop without undue difficulty. (at p641)

39. The learned judge held that, had she been keeping a proper look-out, she would have been able to apply her brakes and by so doing she may have been able to avoid the accident and, at any rate, would have been able to reduce the force of the impact to such an extent that her car would not have veered across the road and collided with the Holden. (at p641)

40. According to the marks on the road, the Mazda struck the sheep 79 metres short of the point of impact with the Trigwells' Holden and six feet in from the left-hand edge of the bitumen. As I have already said, it is probable that Miss Rooke veered to the left when she struck the sheep or that she veered to the left in an unsuccessful attempt to avoid the sheep, having sighted them on the roadway ahead. We have no means of knowing whether the sheep were stationary or whether they darted into her field of vision from the side. However, we do know that Miss Rooke became aware of the sheep when she hit them, if not before. (at p641)

41. Yet she did not bring the Mazda to a halt in the seventy-nine metres between the point of impact with the sheep and the point of impact with the Trigwells' Holden. The judge found that there were no indications that Miss Rooke resorted to emergency braking. It is reasonable to assume that, having reduced speed some five or six seconds earlier, Miss Rooke was travelling at 45 m.p.h. when she struck the sheep. At that speed she should have been able to bring the Mazda to a halt within 180 ft, allowing for reaction time. Even if she had been travelling at 50 m.p.h. she could have brought the Mazda to a halt within 210 ft, a distance significantly less than 79 metres. As I have said, the road conditions were good. Moreover, Miss Rooke was travelling up an incline to a crest. This fact would have reduced the distance within which she could stop the vehicle. It would certainly have offset any difficulty which might have been caused by the fact that the car was travelling partly on the lefthand shoulder of the road and partly on the bitumen. The car carried one sheep 48 metres along the left-hand edge of the bitumen. This in itself would have tended to reduce her speed. The failure to take emergency braking action and to reduce speed sharply after striking the sheep supports the finding that the accident was due to Miss Rooke's negligence in maintaining an excessive speed. (at p642)

42. In the result I would dismiss the appeal as against the Trigwells and the Kerins. I would also dismiss the Trigwells' cross-appeal against the Kerins. (at p642)

MURPHY J. Members of the Trigwell family were injured in a motor vehicle collision about forty miles north of Adelaide on the Adelaide-Kapunda highway, a main highway carrying high speed traffic. The lands adjoining the highway, at the place where the accident occurred, are fenced. A car travelling south towards Gawler at night at about 55 m.p.h. got out of control after striking two sheep, went onto its incorrect side of the road and struck the Trigwells' car which was travelling north towards Kapunda; the driver of the first car, Miss Rooke, was killed. (at p642)

2. The sheep, which were owned by the Kerin partners, had escaped from a paddock adjoining the road, used by the partners and owned by one of them. The poor condition of the fencing at two places allowed the sheep to "traffick" easily through a gap at one place and force their way through the other. They had been on or at the sides of the roadway on many occasions in the four to five weeks before the accident, sometimes in twos or threes and sometimes in larger numbers, as many as twenty to thirty at a time. As it was late summer, there was little feed in the Kerins' paddock. However, there was feed at the sides of the road where the sheep tended to graze when they came out of the paddock. At times, especially as traffic approached, they crossed the road, causing inconvenience to passing motorists who were obliged to stop or reduce speed; at night, dangerous situations occurred. (at p642)

3. The Kerins knew that the fence was not in good condition and that the sheep could get through it for some time before the accident. From casual inspections (at least every second day), they were aware that the sheep regularly left the paddock, grazed at the sides of the road and crossed from one side to the other. They were also aware that some of the sheep were out regularly during the four to five weeks before the accident but did nothing to prevent them from straying; they were content to allow them to stray in order to graze at the sides of the road. (at p642)

4. The Trigwells claimed damages (in the Supreme Court of South Australia) against the Kerins for negligently allowing the sheep onto the road, and against the S.G.I.C. (as third party insurer) for Miss Rooke's negligent driving. The trial judge found for the Kerins and against the S.G.I.C. which now appeals on the grounds that there was no negligence in Miss Rooke, and that if there was, the Kerins were also liable (in negligence or nuisance) to contribute. The Trigwells supported the S.G.I.C.'s claim against the Kerins. (at p643)

5. Liability for negligence by the car driver. The trial judge found that Miss Rooke was negligent in colliding with the sheep. He analyzed the distances and speeds and made inferences about the capacity to brake and to see with the car lights on low beam; Miss Rooke had lowered her lights as the Trigwells' car approached. In my opinion, his conclusion is justified on the simple basis that it is careless to drive in such a way as not to be able to stop within the limits of one's vision. It is immaterial whether it is attributed to Miss Rooke's speed being too high when the headlights were lowered or whether she was not keeping a proper lookout. The finding against the S.G.I.C. should be maintained. (at p643)

7. The judgments in Searle v. Wallbank and the English cases before and after it, contain a number of statements of social policy, and consciously balance the interests of landowners and users of highways as they were visualized in the conditions in England at that time. The common law is studded with similar decisions expressing the social values of judges. Searle v. Wallbank should not be criticized because of this; criticism should be directed towards the resulting exception from the general law of negligence which departed so far from the social values prevailing in the United Kingdom that it was superseded by Parliament (see Animals Act 1971). The decision of the judges in Searle v. Wallbank has been subjected to much criticism. Fleming said it was made "in a singular pique of doctrinaire conservatism" (Law of Torts, 4th ed. (1977), p. 309). (at p644)

8. Judicial decisions outside England. The Searle v. Wallbank exception is not part of the common law of Scotland (see Gardiner v. Miller (1967) Sc LT 29 ) whose courts apply the general law of negligence. (at p644)

. . .

My conclusion is that it is open to this Court to apply the ordinary

10. In New Zealand, the Court of Appeal (which is subject to the Privy Council and indirectly, therefore, to the House of Lords: see Robins v. National Trust Co. Ltd. (1927) AC 515 followed Searle v. Wallbank (see Ross v. McCarthy (1970) NZLR 449 ) until the exception was abolished by statute. (at p645)

11. In the United States, the general law of negligence rule is followed (see 4 Am. Jur. 2d, "Animals unlawfully and wrongfully at large in a place where injury occurs; highway accidents"; the cases in 34 A.L.R. 2d 1285-1292 and 59 A.L.R. 2d 1333). (at p645)

12. The Supreme Court of Western Australia held that the decision was inapplicable to the circumstances of that State (see Thomson v. Nix (1976) WAR 141 ), mostly because of legislation requiring landowners to fence their properties. In Tasmania, in Jones v. McIntyre (1973) Tas SR1 , Chambers J. used reasoning similar to that in Mr. Kelly's article and held that the landowner could be found liable in negligence. In Victoria, the Supreme Court followed what they thought was the decision (see Brisbane v. Cross (1978) VR 49 ). In New South Wales, there were mixed views (see Kelly v. Sweeney (1975) 2 NSWLR 720 ). (at p646)

14. Law Reform Reports. The Report of the Committee on the Law of Civil Liability for Damage done by Animals ("the Goddard Committee") January 1953 (U.K.), p. 5, recommended: "On any view we think it desirable that the rule should be modified to meet modern conditions of traffic where a road runs through enclosed country." It also recommended that liability should depend on negligence and that: "an occupier should be under a duty to take reasonable care that cattle . . . lawfully on land in his occupation do not escape therefrom on to the highway, and that the occupier should be responsible for all damage caused to persons or chattels . . . by cattle . . . which escape owing to a breach of that duty whether or not acting in accordance with their ordinary nature . . . " (p.5). The Report of the Law Commission on Civil Liability for Animals, 24th October 1967 (U.K.) stated: "We have reached the conclusion that the case for changing the principle behind Searle v. Wallbank is overwhelming." (at p646)

17. The Report of the Torts and General Law Reform Committee (N.Z.) on The Law of Animals, September 1975, suggested that modern farming and highway conditions demanded a restyling of Searle v. Wallbank which was described as the "one glaring exception to the availability of an action in negligence" (pp. 46- 47). It recommended "the enactment of a provision under which the presence of unattended stock on a road should constitute evidence from which negligence may be inferred, except in areas where it is not customary to fence" (p. 52). (at p648)

18. The Report from the Statute Law Revision Committee (Vict.) upon the Law Relating to Animals on Highways, 7th March 1978 stated that the exception in Searle v. Wallbank (1947) AC 341 is unsatisfactory as it is presently being applied, that it should be retained only as a general principle, and that legislation should be introduced to specify the "special circumstances" under which a landowner could be held liable in cases of accidents on roads involving his livestock. As I understand the recommendations, the "special circumstances" existed in the present case as the Kerins were "aware that the stock could and did stray onto the road" and also because they "were advised by the police" and had not taken adequate action to prevent their straying or remove them from the boundary paddock. (at p648)

19. Whether Searl v. Wallbank should be recognized as part of the common law of Australia. The application of the exception in Searle v. Wallbank to the circumstances of this case would be unjust. The exception permits graziers, by unreasonable behaviour, to harm road users with impunity, making them a privileged class in the judge-made law. It elevates the economic interests of graziers over the safety as well as the economic interests of road users. (at p648)

20. The general law of negligence should be applied so that a tribunal can take all circumstances into account. A person (whether or not a landowner), who negligently allows his sheep to stray onto a highway, especially where he knows, or should know, that they are on the highway, and does not take steps to remove them (as in this case) should be held to have failed to take reasonable care not to injure the highway users. What is reasonable depends upon the circumstances: there is a vast difference between a sheep owner in a remote area little used by traffic, and one adjacent to a busy highway, as here. To except an owner who keeps sheep from liability if he fails to take reasonable care to keep them off the highway is quite inappropriate to modern conditions in Australian urban and suburban areas and along all the main highways. The problem raised in some of the Law Reform reports over proof of negligence should not present difficulties where it is possible to draw inferences from common experience which meet the civil standard of proof. (at p649)

21. Searle v. Wallbank extends the landowner's immunity only to harmless animals. To describe sheep on a main highway as harmless is ludicrous. Experience shows (as in this case) that sheep, although not vicious, can cause harm by their mere presence. In reality, sheep are more dangerous to traffic than otherwise dangerous animals which will instinctively get out of the way. A landowner's rights on his own land should not be extended in some special way to a highway which is not his land. In Australia, main highways are for traffic, not for the grazing of sheep. (at p649)

22. It seems to be accepted that a person who brings animals onto a highway is liable in negligence if he fails to take reasonable care to prevent their doing damage to others (see Deen v. Davies (1935) 2 KB 282 where the owner was held liable in negligence for allowing his pony to escape from a stable onto the highway). It is quite illogical to exempt from liability a person who deliberately allows his animals to stray onto a highway and takes no reasonable care to prevent their doing damage. (at p649)

23. The Kerins deliberately allowing their sheep onto the highway was responsible for Miss Rooke's death and the damage to the Trigwells. In the absence of any controlling Act of Parliament, the Kerins should be held liable for their neglect (or worse). (at p649)

24. Should the Searle v. Wallbank exception be abolished only by statute? The respondents contended that the common law could only be declared but not altered by judicial decision and that if the exception, as it has been understood, is inappropriate, then it should be left to Parliament to alter it and that it should not be done by judicial decision. The respondents conceded, however, that this Court is free to come to its own conclusion whether the general law of negligence applies to graziers or whether the exception is part of the common law in Australia. This Court has never considered the matter before and, as the court where judgment shall be "final and conclusive" (see s. 73 of the Constitution), it would be quite wrong for it to approach the matter as if, because of the House of Lords' decision, there is a settled exception. (at p650)

25. The House of Lords makes law for the United Kingdom, not for Australia. It is wrong to suggest that the High Court is being asked to alter the law when it has not previously declared the law for Australia and when several State Supreme Courts have taken views differing from Searle v. Wallbank. The notion of the superiority of the English courts has so permeated some parts of the Australian judiciary that it is assumed that the existence of an English decision settles the law in Australia, notwithstanding that other common law jurisdictions take a different view and that the state of law brought about by it was not acceptable to the United Kingdom Parliament. Horace Read's observations in "Judiciary Process in Common Law Canada", Canadian Bar Review, vol.37 (1959) 265, at p. 266 may well be adapted to Australia. The dependence upon English courts for development of the substantive law has led some Australian judges "to make uncritical and overly mechanical applications of English precedents and to abnegate an historic function of the judicial process, that of adapting the law to the ever shifting phases which human affairs assume. The time has now come when such a method of adjudication no longer suffices for the general welfare." Australian judges "especially those on appellate courts, are now obliged to play an effective part during a period in which the law must be changed and extended in the wake of the accelerated economic and social transformation of . . . (Australia). Without weakening the stability of the law they are required to apply and mould it creatively to the full extent permissible within the limits imposed by the nature of the judicial process and by constitutional convention." (at p650)

26. The argument that judicial alteration of judge-made law is usurpation of Parliament's role is untenable. The fiction that "the common law has never changed but is only declared by the judges" (see Blackstone, Commentaries on the Laws of England, vol. 1, 15th ed. (1809), pp. 68-69) and that what might appear to be alterations are only corrections of judicial misunderstanding of the common law is a notion which should not be regarded seriously. As long ago as Bracton, it was accepted that the growth of English law through judicial decisions was inevitable (see Bracton, "de Legibus et conscientudinibus Angliae", vols. 1- 4, G.E. Woodbine ed. (1915-1942) (reprint)). Sir Francis Bacon in The Advancement of Learning (1605) recognized that law grew consciously through cases decided by the judges. Bentham violently criticized Blackstone's notion (see Collected Works of Jeremy Bentham, (1970)) and Austin justly characterized it as "the childish fiction, employed by our judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing I suppose from eternity and merely declared from time to time by the judges" (Lectures on Jurisprudence, 4th ed. (1873), p. 655). (at p651)

27. Some have accepted Blackstone's "fiction" as a fundamental proposition. But he admitted, and this is sometimes overlooked, that a judge in a common law system may rightly refuse to follow a precedent which is absurd, contrary to reason, or plainly inconvenient (see Blackstone's Commentaries, p. 69). In modern times, the "fiction" has been repudiated throughout the common law world by many eminent judges and authors. The virtue of the common law is that it can be adapted day by day through an inductive process which will achieve a coherent body of law. The legislatures have traditionally left the evolution of large areas in tort, contract and other branches of the law to the judiciary on the assumption that judges will discharge their responsibility by adapting the law to social conditions. It is when judges fail to do this that Parliament has to intervene. The extreme case is where the judiciary recognizes that a rule adopted by its predecessors was either unjust or has become so and yet still maintains it, suggesting that the legislature should correct it. This is the nadir of the judicial process. The results of legislative intervention often produce difficulties (see Dillingham Constructions Pty. Ltd. v. Steel Mains Pty. Ltd. [1975] HCA 23; (1975) 132 CLR 323, at p 334 because legislation does not fit easily with "the seamless fabric of the common law". (at p651)

28. Before Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562 , there were many areas in which it could have been said that it was "settled" law that there was no liability in negligence. Landowners' immunity from liability in negligence for damage done by animals straying onto a highway was only one of these supposedly settled areas. In 1932, Donoghue v. Stevenson unsettled them all. The 1947 decision in Searle v. Wallbank (1947) AC 341 excepted landowners from the sweep of the principle in Donoghue v. Stevenson. In that sense it is new law because it deals with a problem which arose after the development attributed to Donoghue v. Stevenson. If an Act of Parliament is necessary to get rid of Searle v. Wallbank why was it not also necessary to get rid of the decisions before Donoghue v. Stevenson which held that numerous areas were not the subject of liability in negligence? Extensions of Donoghue v. Stevenson to these areas were by judicial decision; courts reversed the law without Acts of Parliament. Donoghue v. Stevenson itself, which established the products liability of manufacturers, is a prime example of reversal without Act of Parliament of "settled" common law. There is no justification for the view that graziers have a judge-made immunity from liability in negligence which, unlike that of other classes of the community, is to be disturbed only by Act of Parliament, not by judicial decision. (at p652)

29. The argument that an apparently unjust decisional law should not be abrogated by a court, because it would do so after hearing only the litigants and not after a general inquiry, is unsound. The judges in Searle v. Wallbank made their decision without the benefit of such an inquiry. The argument is curiously twisted when this Court is asked, without such inquiry, to recognize for the first time a rule made by another court whose decisions do not bind it. The reports of the law reform bodies to which I have referred did conduct such inquiries and the tenor of all of them is that Searle v. Wallbank should not be part of the law. (at p652)

30. Whether the exception in Searle v. Wallbank was received as part of the law of the colony of South Australia at its settlement in 1836. When recognition of an unjust common law rule is in question, sometimes an attempt to justify it is made by asserting that it was suitable or applicable to colonial conditions at some date in the nineteenth century, and received as part of English law under the Blackstone reception formula (see Dugan v. Mirror Newspapers Ltd. [1978] HCA 54; (1978) 142 CLR 583 ). (at p652)

31. Whether a common law rule should be recognized or maintained does not depend on whether it was received on settlement of a colony. A rule may be now accepted or rejected irrespective of whether it was suitable or applicable at settlement. The correctness of this seems to have been accepted by the Privy Council in Cooper v. Stuart (1889) 14 App Cas 286, at p 292 . Apparently it has been generally recognized in Canada (see Mr Justice Bouck, "Introducing English Statute Law into the Provinces: Time for a Change?" Canadian Bar Review, vol. 57 (1979) 74, at p. 79): "the essential date for common law purposes is the date when the cause of action arose or the dispute occurred and not November 19, 1858" (the date of adoption of English law). The view that receiption of a rule in a colony at its settlement (or at the critical date for reception of English law) is conclusive or at least material to the question of whether it is now part of the common law, is, in my opinion, wrong; it depends on the view that the common law is static: declared, but not made and altered, by judges. The inquiry into the suitability (or applicability) of Searle v. Wallbank in South Australia in 1836 is not the point; the real question is whether the 1947 Searle v. Wallbank should be recognized in South Australian common law as an exception to the 1932 principle in Donoghue v. Stevenson. (at p653)

32. People will respect judge-made law only as long as they think it is rational and just. The exception in Searle v. Wallbank is neither. The State Government Insurance Commission's appeal against the Trigwells should be dismissed and the appeal and cross-appeal against the Kerins allowed. (at p653)

AICKIN J. I have had the advantage of reading the reasons for judgment of my brother Mason. I am in complete agreement with what he has said with respect to the correctness and the effect of the decision in Searle v. Wallbank. It is in my opinion clear that the common law, as there expressed, is part of the common law in South Australia, and that the decision stated what had long been the common law of England, certainly since long prior to the actual or deemed date of the reception of the common law in South Australia with the arrival of the original settlers in what became known as the Province of South Australia. On such settlement it became applicable in the colony of South Australia as there is no reason for doubting that it was capable of application in that colony. The cases cited by Mason J. demonstrate that that is the test to be applied. I also agree with what he has said as to "special circumstances" as an exception to the rule in Searle v. Wallbank and as to the endeavour to rely on nuisance as a cause of action in the present case. (at p653)

2. I likewise agree with his reasons for concluding that no sound reason has been shown for taking the exceptional step of varying or overruling a settled rule of the common law. It is not necessary or useful to attempt to state definitively in what circumstances it is proper for this Court to change what is found to be the present state of the common law. At the least one would require to be completely satisfied, not merely that the circumstances had radically changed, but also that some suggested change or some suggested new rule would necessarily work greater justice in all the circumstances in which it might apply. (at p653)

3. Consideration of the position in North America does not lead me to depart from what Mason J. has said. It is true that in many of the States of the United States there has been a tendency to qualify the rule in Searle v. Wallbank by providing for liability where the owner "should reasonably have anticipated that injury would result from such a situation", i.e. escape on to a highway - see 4 Am. Jur. 2d par. 114 and 3A; C.J.S. pars. 137 and 183. This qualification, however, virtually destroys the rule. See also the cases referred to in the Annotations in 34 A.L.R. 2d 1285 and 59 A.L.R. 2d 1333. The basis on which these decisions were arrived at reflects a view of the common law which is not applicable in Australia; I have not been able to derive assistance from them, interesting though they are. In Canada the question was considered by the Supreme Court of Canada in Fleming v. Atkinson (1959) 18 DLR (2d) 81 where three members of the Court took the view that because of differing conditions in Ontario the rule in Searle v. Wallbank did not apply in that Province. One member of the Court dissented from that view and the remaining members did not find it necessary to consider the question. I am however unable to take the view that the factors which led the three members of that Court to this conclusion are applicable in Australia. The origin of the road systems and the ownership of the soil of the highways do not in my view constitute the principal basis for the common law rule. With due respect, I am unable to find in the reasons of those members of the Supreme Court of Canada a sound basis for concluding that the common law rule in Australia differs from that affirmed in Searle v. Wallbank. (at p654)

4. The remaining question is the appeal against the finding by the trial judge of negligence by the driver of the car which struck the sheep and thereafter veered across the road and came into head-on collision with the car coming from the opposite direction. This raises difficult questions. The evidence and findings are summarized in Mason J.'s judgment, but there are some parts of the evidence to which I shall need to refer. Much of the problem arises from the absence of any evidence as to the prior position of the sheep and as to the extent to which the collision with them affected the brakes and steering of Miss Rooke's car. I agree with Mason J. that there is no evidence to warrant the finding that Miss Rooke must have been aware that sheep were frequently on or near the road in question, or the finding that she was required to foresee the possibility that an animal might be on this road. (at p654)

6. That passage appears to me to involve an unwarranted assumption as to the position and movement (or lack thereof) of the sheep prior to impact. In so far as it is a finding of negligence by reason of failure to keep a proper lookout it depends on that unwarranted assumption. There is, in my opinion, no evidence to warrant a finding of negligence by reason of failure to keep a proper lookout. (at p655)

7. Raines, the only eye witness, said that he did not see the sheep until after the accident when he saw one dead sheep on the road. Raines could not recall whether he saw the brake lights of Miss Rooke's car come on at the time when he saw the car lights dipped and the car slacken speed and then move to the left. He was not asked whether he saw the brake lights at a later stage or whether he observed any further change in speed. (at p655)

8. The trial judge found negligence in failure to keep a proper lookout and in excessive speed. I have said above that I do regard the former finding as open on the evidence. As to excessive speed, it is no doubt true, that, if Miss Rooke had been driving more slowly than she was, it is possible that she might have avoided one or both of the sheep and might not have lost control of her car but there is, in my opinion, no evidence on which to base a finding of negligence by reason of excessive speed. The only direct evidence as to speed is that of the witness Raines. In his evidence in chief he said that shortly before the collision occurred he was travelling at about 100 kilometres per hour, or 60 m.p.h., behind Miss Rooke's car and was catching up, and that Miss Rooke's car was travelling at a speed a little less than his. He then said that an approaching car coming in the opposite direction, dipped its lights a couple of times quickly. He said that the lights of Miss Rooke's car were dipped as soon as the approaching car came over the rise, up which his car and Miss Rooke's were going. He said that she dipped her lights and "decreased her speed and slowed down, veered to the left slightly, not quite right off the road. She went along on that path for a while, then she shot straight across to the left-hand (sic) side of the road where the approaching vehicle was coming". He was asked whether she continued on that course after she veered to the left for some distance and he answered, "Yes, not a real big distance." He said that he veered to the left after Miss Rooke's car veered to the left and said that his course was partly on the bitumen and partly off. In cross examination he said that her car's speed "slackened a little before she veered (i.e. to the left)". He estimated the distance which the car travelled from the time it first veered to the left until it went "shooting across to the right" as about 100 metres. The distance between the first impact with the sheep and the point of collision was established as 79 metres or thereabouts. Raines said that he could not estimate the speed of the oncoming car. (at p656)

9. He estimated Miss Rooke's speed at being about 55 m.p.h. at the point before it slowed down. He was asked whether he saw the brake lights at the rear of her car go on when it slackened speed and answered, "It is hard to say because she slowed down quite a bit and I slowed down. It is one thing I didn't really recall seeing." The next question was, "You can't say one way or the other?" - "A. No, because it happened that sudden. . . ." I agree with the view expressed by Mason J. that Miss Rooke was acting reasonably in driving at 55 m.p.h. on high beam and in not reducing speed so sharply that she could stop within the range of vision on low beam. (at p656)

10. On this evidence Miss Rooke's car travelled about twenty metres from the time of first veering to the left until the impact with the first (or both) sheep. If she had continued at about 55 m.p.h. (which it is clear she did not) she would have travelled for about one second before the impact with the sheep. (at p656)

11. Raines was asked whether he observed any sheep and said that he had seen one sheep after the accident, but had not seen any sheep before the accident. He was not asked either in examination in chief or in cross examination whether he had seen brake lights or observed any change of speed at any time after Miss Rooke's car had veered to the left and had begun to continue on its course with its left side wheels slightly off the bitumen. He was not asked whether he had himself slowed down during the period after Miss Rooke's car veered to the left. (at p656)

12. It is not a matter in which one could use the presumption of continuity as a basis for concluding that Miss Rooke's car had continued at the same speed from the time when it veered to the left until it subsequently veered right across the road so as to collide with the car coming from the opposite direction. There is no direct evidence as to the speed of her car except at the moment prior to slowing down and veering to the left. (at p656)

13. It is by no means clear on the evidence whether her car struck the sheep or one of them before or after veering to the left, but it is reasonable to infer that it was after the car had slowed down, whether that reduction in speed is to be described as ". . . quite a bit . . ." or "a little . . ." or merely ". . . decreased her speed and slowed down . . .". The trial judge said that, "It is clear from Raines' evidence that he did not get the impression of any emergency braking." The absence of "emergency braking" suggests that Miss Rooke did not see the sheep in time to apply the brakes or to apply them sufficiently to avoid the sheep, and indeed there was evidently not more than one second's interval of time in which to do so. I am satisfied that the trial judge was not referring to "emergency braking" in the period after the impact with the sheep, because he made that observation immediately after referring to Raines' evidence as to braking at the time of dipping the headlights and Raines gave no evidence at all about subsequent speed or subsequent braking. There is no direct evidence as to speed or braking or lack of braking thereafter. However, an expert witness, a Mr. Doble, gave evidence based on the position of Miss Rooke's car and of the other car (a stationwagon) after the collision relative to the point of impact to each other vehicle and the extent of damage to both as appearing from the photographs in evidence. The stationwagon came to rest some 13 metres beyond the point of impact, but Miss Rooke's car was propelled backwards and came to rest upside down approximately in line with the front of the stationwagon slightly further from the point of impact. On that material, he said that Miss Rooke's car was travelling "relatively slowly . . .", i.e. "Slowly relative to the ground and also slowly relative to . . ." the stationwagon. This conclusion was not challenged, though other evidence of his based on the examination of photographs of tyre marks was rejected as it appeared that the photographs were taken two days after the collision and there was no certainty that they were made by Miss Rooke's car. (at p657)

14. The plaintiff gave evidence that at the time when he saw a car begin to veer across the road he was travelling at about 50 m.p.h. Mr. Doble expressed the view that the stationwagon was travelling at less than that speed at the point of impact because he said that the damage would have been greater if the stationwagon had been travelling at 50 m.p.h. He also said that it was not possible from the photographs of the wreckage of Miss Rooke's car to distinguish between damage caused by the impact with the sheep and that caused by the collision with the stationwagon. (at p657)

15. I have dealt above with the question of failure to keep an adequate lookout and with the question of speed. The trial judge's conclusion that ". . . the driver of the Mazda was required to anticipate the possibility of an unlighted object or animal on the road" (whether the word "anticipate" is used in its strict sense or as meaning expect) is one which is not open on the evidence. No doubt the presence of unlighted animals was one of many possibilities, but in my opinion it puts the duty of a driver too high in these circumstances to say that he should expect to encounter unlighted animals or that he should take some unspecified steps in advance to deal with their possible presence. Moreover, I do not think that a driver should in all circumstances be expected to resort to "emergency braking" to reduce speed on the dipping of headlights. (at p658)

16. In these circumstances it does not appear to me that a finding of negligence on the part of Miss Rooke was open and accordingly the appeal as against the Trigwells should be allowed, but the appeal as against the Kerins, owners of the land from which the sheep strayed, should be dismissed. (at p658)

ORDER

Cross-appeal dismissed with costs.