Hackshaw V Shaw (1984) 155 CLR 614 – Australian Case Summary

The Main Facts of the Case

The High Court of Australia on 11^th December 1984 laid down the leading judgment in the case osf Hackshaw v. Shaw [1984] 155 CLR 614.

A farm was located at Korong Vale in Victoria. The defendant was the owner of the farm and visit the farm every day to carry out work at the farm but does not live there. A pump and a petrol tank were at the farm and were installed so that any motor vehicle which is used at the farm can be refuelled. Theft of petrol keep on incur on the farm of the Defendant even after expensive locks are put upon the petrol tanks. The complaint made to the police by the Defendant did not bring any relief to the Defendant. (Jade, 2017)

A theft again happen on 3^rd December 1978 night and thus the Defendant decided to stay at the farm to catch the thief’s. The Defendant and his wife hid near the bowser on the night of 10^th December accompanied with a rifle and a shotgun. The main aim to carry the weapons is to immobilize the car and then to discover the identity of the thief.

At around 10 PM, Cox (thief) along with the plaintiff (a sixteen year old girl) drove with a stolen car on the farm of the Defendant. When Cox (with the headlights of the car turned off) was pumping the petro into the car, at that time the defendant shot twice at the car of the Cox with his rifle from the distance of 30 Yards which penetrated the door of the car and had injured the plaintiff.  An action is brought in by the plaintiff to recover the damages that are sustained by her for the personal injuries suffered by her because of the shots of the Defendant. (Jade, 2017)

1. Whether the defendant is under a duty of care towards the Plaintiff even if the Plaintiff is the trespasser?
2. Whether there is breach of duty of care by the Defendant?
3. Whether the Plaintiff can claim injuries sustained her being the trespasser on the farm of the Defendant?

1. That when Cox moved out from the car she also accompanied him;
2. When the first shot was fired she moved back into the car and lay down in the front seat
3. She felt a burning feeling on her arm;
4. More shots are fired when Cox drove away;
5. That she is not aware that the car driven by Cox was stolen or that Cox intended to steal the petrol of the Defendant;
6. That she is not aware why the lights were turned down by Cox.
7. That the defendant was reckless and negligent in his actions;
8. That there is no contributory negligence on the part of the plaintiff.

The Decision was given by the High Court of Australia by reversed  the decision of the Supreme Court of Victoria. The Appeal by the Plaintiff was allowed with costs. The Decision by the Supreme Court of Victoria was set aside.

Every judge has their own set of reasoning while allowing the Appeal of the Plaintiff.

Reasons by GIBBS C.J

The High Court considered that the Plaintiff Defendant does own a duty of care against the plaintiff, who was a trespasser. The Appeal of the Plaintiff was allowed. The main reasons under which the appeal was allowed were: (Austii, 2017)

1. That when an action for trespass is in question then the burden of proof was on the defendant to prove that he did not intent or is negligent when a blow or missile is discharged upon the plaintiff by the defendant (McHale v. Watson(1964).
2. The occupier owns a duty of care against the invitees on his land (Donoghue v. Stevenson(1932)). But, the duty is extended to trespasser is a question to be resolved when the defendant can reasonably foresee that his action will hamper the trespasser on his land (Herrington v. British Railways Board  (1972) & Robert Addie &Sons (Collieries) v. Dumbreck  (1929).

The jury in the given case held that the defendant is negligent in his action as there exists a duty of care upon the defendant knowing the fact that the plaintiff is on the farm of the defendant, even when she is the trespasser and thus the defendant must act with all care and diligence so that no harm is caused to the plaintiff by his actions.

1. That a duty of care exists against the trespasser regardless of the condition of the premises and how the plaintiff has occupied the premises of the occupier and is held in Rich v. Commissioner for Railways (N.S.W.) (1959)
2. That the trespasser is still the neighbor of the occupier of the premises. That at times there is coexistence amid the general duty of care along with the special duty of care that exists amid the occupier and the trespasser, provided the relationship amid the parties are not merely of the trespasser and the occupier but there are situations wherein duty of care can be imposed upon the occupier against such trespasser and is held in Thompson v. Bankstown Corporation; Commissioner for Railways (N.S.W.) v. Cardy  (1960).
3. The court held that there exist a duty of care upon the defendant against the plaintiff not from the fact that the defendant is the occupier of the land but from the fact that when he open the firearm then he is creating a danger which he can reasonably foresee that his actions might cause injury to persons who can be present at the vicinity of his farm unless and until he can prove that he has taken due care and is 100% sure that there is no other person on  his vicinity.
4. That the defendant in the given case does own the duty of care against the plaintiff provided he is aware that the plaintiff is in the car or near the car. However, in the given case the defendant is not aware that the plaintiff is near the car. Still, this non presence of knowledge will not relive the defendant from his duty of care when he is indulging in dangerous actions. A defendant owns a duty of care against that person who he can reasonably foresee even if not sure of their presence and whether the plaintiff is a trespasser is irrelevant. The Defendant can suspect that there are chances that plaintiff might be in the car and thus he owns a duty of care against the plaintiff and the court relied on the leading case of Public Transport Commission(NSW) v Perry  [1977]. The facts that Cox has driven the car in a dark night when nothing was visible results in an assumption that there are chances that a normal prudent man can think that there might be someone else sitting in the car along with Cox thereby imposing s duty of care upon the Defendant.
5. The plaintiff submitted that the she is of the view that Cox was simply taking her for a drive was not acceptable considering the fact that a distance of twenty miles are covered by both the plaintiff and Cox. Even if the submissions of the plaintiff are considered to be true but the plaintiff can infer the intention of the Cox once he entered on the farm of the Defendant. She must be aware that some kind if illegal activity might be carried on by Cox when he entered on the farm of the Defendant. In such situation, it is the duty of the plaintiff that she must avoid the company of Cox regardless of the fact that how much difficult it is for her to leave the company of Cox. It is a settled law that one person who along with the company of another person enters into the property of an occupier and is aware that some illegal activity might be incurred by such other person then it cannot be said that reasonable care has been undertaken by the first person to protect her own safety. Thus, the plaintiff has contributed to her own loss.

Based on the above reasons the Appeal was allowed by the Judge.

It was held by Murphy J that:

1. The defendant must be aware or has reason to believe that there might be some person (plaintiff) present in the car when he shot fire at Cox (river of the car and the thief) and thus is guilty of negligence.
2. There is no need that he must be fully aware that there must be some person in the car. The probability that the plaintiff might be present in the car is enough to impose duty of care upon the defendant and is held in Wyong Shire Council v. Shirt(1980) and Commonwealth v. Introvigne .
3. That the defendant is the occupier of the land and the plaintiff was the trespasser on the land of the Defendant along with Cox. It will not relieve the defendant from his duty of care even when the parties are trespasser and the defendant has reason to believe that the trespasser might be present upon his land. The court relied on the reasoning under Commissioner for Railways v. Cardy(1960) ; Commissioner for Railways v. Anderson (1961) and Public Transport Commission v. Perry (1977);
4. The duty of the defendant is higher when compared with the simple cases of negligence. This is because the injury that is caused to the plaintiff is not by any accident. That the defendant is aware that the car is driven by someone. The defendant was not making any kind of self defense when he was shooting at the car driven by Cox. When the defendant open the fire he entered into an act of highly dangerous and this his duty of care is higher than the usual duty of care in cases of negligence and is rightly held in Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle(1940). The defendant must be fully sure that there was no other person other than Cox in the car when he indulged in the act of firing which is highly dangerous. A proper reasonable care is expected from the defendant which is not cater by him resulting in the breach of duty of care on the part of the defendant which has resulted in causing injury to the plaintiff.
5. It was held that the Plaintiff has not contributed in the act of negligence which has resulted in her own injury. Mere sitting in the car will not result in an action of contributory negligence on the part of the plaintiff.

Thus, the appeal was allowed but the liability which is imposed upon the defendant was not reduced on account of contributory negligence.

Decision by Wilson J

1. That act that was entered by the defendant was dangerous and was entered into by the defendant intentionally so as to discourage the trespasser, the visits of whom was within the knowledge of the defendant;
2. That there is proximity that exist amid the defendant and the plaintiff and thus there own a duty of care that must be furnished by the defendant against the plaintiff and is rightly established in the leading case of  Dorset Yacht case(1970) and Anns v. Merton London Borough Council (1978).
3. That the defendant has reasons to believe that there are chances of some other person to be present in the car of Cox and thus there is duty of care that can be imposed upon the defendant.
4. That the Plaintiff has contributed to her won loss and which has resulted in causing to her won injury.

Deane J also allowed the appeal of the plaintiff. (Doyles, 2015)

Reference List

Case laws

Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle (1940) 64 CLR 514.

Anns v. Merton London Borough Council (1978) AC 728, at p 752.

Commonwealth v. Introvigne (1982) 41 ALR 577

Commissioner for Railways v. Cardy (1960) 104 CLR 274;

Commissioner for Railways v. Anderson (1961) 105 CLR 42;

Donoghue v. Stevenson  (1932).

Dorset Yacht case (1970) A.C. 1004 

Hackshaw v Shaw (1984) 155 CLR 614.

Herrington v. British Railways Board (1972) AC 877

McHale v. Watson (1964) 111 CLR 384.

Public Transport Commission (NSW) v Perry  [1977] HCA 32;

Robert Addie &Sons (Collieries) v. Dumbreck (1929) AC 358;

Rich v. Commissioner for Railways (N.S.W.) (1959) 101 CLR 135.

Thompson v. Bankstown Corporation ; Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45;

Wyong Shire Council v. Shirt (1980) 146 CLR 40;

Online Research

Austi (2017) High Court of Australia, DIANNE MAREE HACKSHAW V. GEORGE SHAW [1984] HCA 84 (Online). Available at: https://www.austlii.edu.au/au/cases/cth/HCA/1984/84.html. (Accessed on 30th May 2017)

Doyles (2015) (Online). Available at: https://doylesconstructionlawyers.com.au/casewatch-list/hackshaw-v-shaw/. (Accessed on 30th May 2017)

Jade (2017) Hackshaw v Shaw (1984) 155 CLR 614 (Online). Available at: https://jade.io/article/67169. (Accessed on 30th May 2017)