Opinion
Archaic immunity from the long face of the law
8th Feb 2024
Imagine being injured in a motor vehicle accident because a horse or a cow had, yet again, escaped onto the road from a nearby property. Your injuries are life-changing, and you are experiencing a devastating loss of income. Then imagine being informed that the owner of said animal has immunity from the tort of negligence because of a centuries-old English common law rule which was abrogated in its original jurisdiction (the United Kingdom) back in 1971.
Animals straying onto roads
As those practising in the personal injury arena would be well aware, a controversial and archaic English decision from 1947 addressed owners’ or occupiers’ liability for damage or injury caused by their animals straying onto highways. This case is Searle v Wallbank (1947) 1 All ER 12.
In Searle v Wallbank the House of Lords accepted the settled law that owners or occupiers of land adjoining highways are under no legal obligation to fence, or maintain their fences, along a highway to prevent animals from straying onto the road. The House of Lords went further to say that owners or occupiers of land adjoining highways owe no duty to road users to take reasonable care to prevent their domestic or tame animals from straying onto the road.
At the time of the Searle v Wallbank decision in 1947, few roads were fenced off in England and it would have been considered an overly onerous task to fence all those areas or to ensure livestock did not stray onto roadways. The volume and speed of road traffic was also far from that which we have today. One can understand why and how such a decision was made.
The subsequent case of Brock v Richards [1951] 1 KB 529 identified special circumstances in which the rule does not apply – where the owner of a domestic animal which strays onto the road knows that the animal has a ‘vicious’ or ‘mischievous’ propensity to do so. This exception has been discussed in later cases, though, and it has been said that ‘a mere proclivity towards straying is not enough’ to impose liability on the owner of the animal. The result is – even if an animal is prone to straying onto a busy roadway and an owner is aware of this, there is no civil liability imposed on the animal owner for damage or injury caused as a consequence.
In the case of State Government Insurance Commission v Trigwell (1979) 142 CLR 617, the High Court of Australia affirmed the rule in Searle v Wallbank. It has, since then, been well established that the civil immunity from liability applies to all roadways (and not just highways) in Queensland.
Modern times
In our modern times, there is simply no place for an outdated and anachronistic law such as this one. The reality is that it does not factor in:
- the quantity and size of roads and highways
- the quantity of motor vehicle traffic on our roads
- the average speed of modern traffic
- the spread of urbanisation into rural areas, and
- the potentially serious consequences should a collision occur between animals and traffic.
The current position on this rule
Over the years, the rule in Searle v Wallbank has been subjected to much scrutiny, with criticism allegedly dating back as far as 1699. As a result of this criticism, the common law rule has been abrogated by statute in England, Wales, New Zealand, and all Australian states and territories except for Queensland and the Northern Territory. Instead of action, a pattern has emerged in Queensland where the debate on this archaic law is reignited each time a tragedy on our roads involving livestock occurs before the matter falls dormant once more.
Nearly 50 years ago the Queensland Law Reform Commission called for the abolition of the rule in Searle v Wallbank, however, their recommendations were ignored. Since then, numerous cases have been run attempting to overturn the rule, but none of these have managed to do so.
Where to from here? Our hands are tied
As stated in State Government Insurance Commission v Trigwell, the solution to this problem rests with the legislature – it must be abrogated by statute, as has already been done by most Australian states and territories. We are, however, no closer to seeing change today than we were 50 years ago.
As a personal injury lawyer in Queensland, I feel it is high time that the Queensland Government implements legislation to abolish this archaic law and level the playing field. Ongoing inaction is only serving to perpetuate an injustice where the rights of owners of livestock are put ahead of the rights of road users. Road users who have suffered personal injury or property damage in these circumstances ought to be entitled to rely upon the general principles of the law of negligence. It is not a matter of stripping livestock owners of their rights, but rather giving the judiciary the power to weigh a just outcome.
The ALA thanks Rachel Last for this article.
Rachel Last is a Senior Associate with Travis Schultz & Partners. She represents clients on matters involving all areas of compensation law. Having grown up in rural Queensland towns such as Julia Creek and Charters Towers, she often witnessed livestock on or around roadways.
This is an edited version of an article first published by Travis Schultz & Partners.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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