Archaic immunity from the long face of the law

29 May 2022 By Rachel Last
Rachel Last

As a personal injury lawyer in Queensland, I feel disheartened and, quite frankly, embarrassed when informing an injured person that they have no rights to claim compensation for their devastating injuries because of a 75-year-old law, writes Rachel Last.

Imagine being injured in a motor vehicle accident because a horse 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 the said horse has immunity from the laws of tort because of a 75-year-old decision that has been abrogated in all states and territories apart from Queensland and the Northern Territory.

Animals straying onto roads

As those practising in the personal injury arena would be well aware, a controversial and archaic English case from 1947 governs owners’ or occupiers’ liability for damage or injury caused by animals straying onto highways, Searle v Wallbank.

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In Searle v Wallbank, the court found 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 court 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 that Searle v Wallbank was handed down 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. One can understand why and how such a decision was made.

The subsequent case of Brock v Richards (1951) identified special circumstances in which the rule does not apply – where the owner of a domestic animal that 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 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), the High Court of Australia affirmed the rule in Searle v Wallbank. It has, since then, been well established that the immunity applies in Queensland. It has also been made clear that the rule applies to cattle and horses and that it applies to all roadways and not just highways.

The current position on this rule

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Over the years, the rule in Searle v Wallbank has been largely criticised. As a result of this criticism, it has been abrogated in England, New Zealand, and all Australian states and territories, except for Queensland and the Northern Territory.

Despite calls for law reform in Queensland on this issue over the past few decades, so far nothing has been done by the legislature to change the law. Numerous cases have been run attempting to overturn the decision in Searle v Wallbank; however, none of these has managed to do so. The last time the issue was examined in any great detail was in a 2010 parliamentary research paper, but since, it has again gone dormant. 

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.

Where to from here – our hands are tied

As stated in State Government Insurance Commission v Trigwell, it is a matter for the legislature to alter the law around this issue, as has already been done by most Australian states and territories. As stated by retired Supreme Court judge Stanley Jones: “From a social perspective, I can’t understand why Queensland has not done it.”

As a personal injury lawyer in Queensland, I feel disheartened and, quite frankly, embarrassed when informing an injured person that they have no rights to claim compensation for their devastating injuries because of a 75-year-old law.

I can’t speak for other lawyers in this field, but I certainly don’t want to see us giving the same advice in another 10 years’ time! It is high time that the Queensland Parliament opens its eyes to this issue and takes an important step into the 21st century.

Rachel Last is an associate at Travis Schultz & Partners.

Archaic immunity from the long face of the law
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