Sheep on highway causing an accident
- The Trigwells sued the State Government Insurance Commission (SGIC) after an accident where their vehicle collided with a car driven by Rooke. Rooke died in the accident, but the Trigwells alleged he was negligent and sued Rooke’s insurer, the SGIC.
2. The Kerins denied being negligent, maintaining that due to a common law rule from the UK case of Searle v Wallbank (1947) they were not liable in negligence for the loss suffered by the Trigwells. The precedent set by Searle v Wallbank stated that owners of livestock were not responsible for any injury caused if their livestock strayed onto the highway, even if they had not kept their fences in good condition. People could not be responsible for damage caused by their straying animals.
3. The High Court declined to alter the Searle v Wallbank precedent finding that the legal principles of Searle v Wallbank still applied in Australia. The High Court justices noted that, unless the parliaments of the various states legislated to override the precedent in relation to stray animals, it would be binding on the courts.
4. The respective judges reasons can be summarised as follows:
Justice Gibbsnoted that a law does not cease to exist because of changing circumstances, and it should only be repealed or amended by legislation. Altering a law is a concern for the legislatures rather than for the courts.
Justice Stephen wrote that the amendment of a law should not be a matter for a court because a parliament is able to hear various interests concerned with the change to the law. A court can only hear from two litigants, not a broad range of representatives from the community, if attempting to change the law.
Justice Mason noted that courts are neither a legislature nor a law reform agency – acourt’s responsibility is to decide cases by applying the law to the facts. Courts do not have the research and consultation powers that governments and law reform agencies do.
Justice Murphy, the dissenting justice, wrote that the Searle v Wallbank precedent had little or no relation to the facts or needs of the situation and ignored any responsibility to the public for conduct involving foreseeable consequences of harm – he believed that this was based on a rigid determination to adhere to the rules of the past in spite of changing circumstances. He noted that legislatures have traditionally left it the judiciary to adapt law to social conditions, and that parliament must intervene if judges fail to do this.
5. Judicial conservatism refers to strict legalism or judicial restraint. It is a court attitude that resists the changing of the law or its meaning or its application. In the Trigwell case, the reluctance of the High Court to change the law was clearly expressed by Justice Mason (representing the majority view) when he stated, “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 inquiries 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 or individuals who may be vitally interested in the making of changes of the law. In short, the Court cannot and does not engage in the wide-ranging inquiries and assessments that are made by governments and law reform agencies as a desirable, if not essential, preliminary to the enactment of legislation by an elected legislature.”