Searle v Wallbank
| Jurisdiction | England & Wales |
| Judge | Viscount Maugham,Lord Thankerton,Lord Porter,Lord du Parcq |
| Judgment Date | 16 December 1946 |
| Judgment citation (vLex) | [1946] UKHL J1216-1 |
| Date | 16 December 1946 |
| Court | House of Lords |
[1946] UKHL J1216-1
Viscount Maugham
Lord Thankerton
Lord Porter
Lord Uthwatt
Lord du Parcq
House of Lords
After hearing Counsel for the Appellant, as well on Thursday the 24th as on Friday the 25th, days of October last, upon the Petition and Appeal of Ernest Herbert Searle, pauper, of 2 The Common. Poles-worth, Warwickshire, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 25th of April 1945, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of Ernest Wallbank lodged in answer to the said Appeal; and Counsel appearing for the Respondent, but not being called upon; and due consideration being had this day of what was offered for the said Appellant:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 25th day of April 1945, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
On the 1st of April, 1944, at 1.30 a.m. the Appellant, a chargeman packer earning £9 10s. a week, was riding a cycle down a lane known as "Boulter's Lane Hill", Baddesley in the County of Warwick. There is no evidence as to the speed at which he was travelling or as to the width or nature of the lane; but the Appellant himself said that the slope, as its name suggests, was steep. His front light was masked in accordance with the black-out regulations, and he also had a back light. He estimated the visibility at 100 yards. The hedge, he said, was thick at the side of the road running past the Respondent's farm. He there met with a serious accident as to which we only know this from the County Court Judge's note—that he collided on the highway with a horse belonging to the Respondent and being thrown to the ground was badly injured. In examination in chief he said, according to the note, that he was "twisted over by horse. Saw horse standing on top. He came from Defendant's". In cross-examination he said "I first saw horse standing on top of me, I saw it dashing out from the side of me. No signs of vicious behaviour. Light chestnut. Saw colour by lamp. I recognised the horse straight away". He also said in cross-examination, which he had not said in chief, that the fence was dilapidated and that there were gaps through which a horse could get. The Defendant said there was no gap to his knowledge. The judge in his judgment according to the notes kept by the solicitor on one side and by Counsel on the other, after stating that he did not believe the Defendant, said concisely that the horse was on the road and that "the Plaintiff collided with it and was thrown to the road". He found as a fact that it was the Defendant's horse, and added "It got on to the road because the fence was defective". Your Lordships will of course accept these findings, though the last finding was apparently a conjecture. The learned Judge held, following the decided cases and in particular ( Heath's Garage Ltd. v. Hodges 1916 2 K.B. 370) and ( Hughes v. Williams 1943 1 A.E.R. 535), that there was no duty upon the Respondent to maintain his fences, and consequently that there was no negligence on his part, and he accordingly dismissed the action. He stated, however, that in case his judgment was held to be wrong he assessed the damage at £200.
The Appellant appealed to the Court of Appeal, contending that the Judge was wrong in law in holding that there was no duty on the part of the Respondent so to fence his land as to prevent his horse from straying upon the highway. The Appeal was dismissed after a hearing by MacKinnon, Lawrence and Morton L.J J.; but they thought fit to give leave to appeal to this House, apparently because of some expressions of opinion in Hughes v. Williams to the effect that the state of the law laid down by the older authorities was not very satisfactory having regard to modern conditions. I must observe that in giving leave to appeal in what is considered to be a test case the position of the Respondent as to costs, if the appeal should fail, ought to be borne in mind. It is an unfortunate fact for the Respondent in this case that the Appellant presents his appeal as a poor person.
My Lords I have had the advantage of reading the Judgments of my brethren Lord Porter and Lord du Parcq, in which the previous authorities are carefully examined and the facts of this case are fully dealt with; and to avoid repetition I propose to deal with each of the questions of law involved as if it were coming as res Integra before Your Lordships. As I apprehend the matter, there are two possible questions that arise.
First, was the Respondent, as the owner of a field or fields abutting on the highway, under a primâ facie legal obligation to users of the highway so to keep and maintain his hedges and gates (if any) along the highway as to prevent his animals from straying on to it?
Secondly, assuming there is no such general duty, was he under a duty as between himself and users of the highway to take reasonable care to prevent any of his animals (not known to be dangerous) from straying on to the highway?
I should say here that I do not propose to deal with the question which would arise if the animal is wild by nature or is a domestic animal known to be dangerous; though I may observe that in such cases I can readily conceive that the possibility or probability of danger to passers-by might impose a duty of reasonable care.
My Lords, light will be thrown on both the two above questions by a consideration of the history of the growth of our highways, in order to see whether there was at any time such a state of things that a legal obligation on the owner or occupier of roadside lands to repair and maintain the adjacent hedges may reasonably be inferred, or any such duty towards users of the roadway can be established as to render such owner or occupier liable in an action for negligence should a horse or other animal belonging to him stray on to the road and cause damage to a passer-by.
I do not think that the history of English roads has ever been exhaustively written; but a great deal is known about them, and in comparatively recent times is to be found in a great number of private and public Acts of Parliament, particularly those in relation to Enclosure.
It was only by a very slow and gradual process extending over centuries that the forests and chases mainly belonging to the King, which covered great tracts of land, were disafforested, that the commons and wastes of different kinds were enclosed, and that the fens and marshes were drained. Even as late as the year 1700 about one-half of the arable land of England was cultivated on the traditional open field system, where there were intermixed strip holdings with the benefit of common rights in pasture and waste. (See Historical Geography of England before 1800, edited by H. C. Darby, Cambridge, at p. 469.)
Whilst England was largely covered by royal forests (not by any means all woodland), heaths, downs, fens, marsh, and above all by commons, wastes and common fields, there can have been few roads except tracks for the use of commoners and local inhabitants of the vils or townships. Until enclosure was effected roads or ways could not be made, since either the landowner or the lord of the manor or persons with common rights would have objected.
Before dealing with the vast enclosures which altered the face of England it is important to observe that such roads or tracks as there existed between market towns were almost completely unenclosed by hedges or fences. The fact is established by the interesting Act, 13 Edw. I (A.D. 1285, Statute of Wynton) Cap. V. It has come down to us in these terms:
"Highways leading from one Market Town to another, shall be enlarged so that there be neither Dyke, Tree, nor Bush Whereby a Man may lurk to do Hurt, within 200 feet of the one side and 200 feet of the other side of the Way."
This Act was not repealed till the Act 7 Geo. III c. 42 (section 57) came into force.
The Act of Edward I probably became obsolescent as the country-side became less infested with rogues and vagabonds, who largely, if not mostly, consisted of men who were discharged soldiers and sailors without means of support. That change must have been after the reign of Queen Elizabeth, who would do nothing for such persons. But the Act remained on the Statute Book for over five centuries, which seems to show that there was no real demand for hedges along the roads. (See also the General Highway Act, 13 George III c. 78.)
Coming now to enclosures, it will be remembered that the breakup of Manors was a process which continued from roughly 1300 to 1485. The lords aimed at increasing their enclosures, and they were empowered to do so by the Statute of Merton (20 Hen. II c. 4) and the amending Statute of Westminster (13 Ed. I c. 46), provided they left enough pasture for persons with grazing rights. They also enclosed the desmesne lands. Different forms of enclosure subsequently took place which resulted in the break-up of the old village and manorial systems of cultivation; but many open-fields and commons continued to exist in and after 1793, when an Act was passed to deal with the matter.
Enclosures were constantly sanctioned by private Acts and it is calculated that they numbered no less than four thousand in the 18th and 19th centuries. (Williams on Rights of Common, 1880,...
To continue reading
Request your trial
-
Gomberg v Smith
...also Turner v. Coates, 1917 1 King's Bench, 670; Gayler & Pope v. Davies. 1924 2 King's Bench, 75, and the dictum of Lord Porter in Searle v. Wallbank, 1947 Appeal Cases at 356. 12 In Pitcher v. Martin, 1937 3 All England Reports, 918, the Defendant on a highway held her dog's lead soloo......
-
Carmarthenshire County Council v Lewis
...for their own safety and whom a prudent parent would not allow to go into a street unaccompanied. A long series of cases culminating in Searle v. Wallbank [1947] A.C. 341 have established, now beyond controversy, that an occupier is under no duty to fence his fields, yards or other premises......
-
Gillick v O'Reilly
... ... Whelan (supra) considered, rule in Searle v. Wallbank doubted. 4. That, in the instant case, the plaintiff had failed to establish that there was any breach of duty by the defendant, who was ... ...
- Parimala a/p Muthusamy and Others v Projek Lebuhraya Utara-Selatan
-
Archaic immunity from the long face of the law
...governs owners' or occupiers' liability for damage or injury caused by animals straying onto highways. This case is Searle v Wallbank [1947] AC 341; (1947) 1 All ER In Searle v Wallbank, the Court found that owners or occupiers of land adjoining highways are under no legal obligation to fen......
-
The Common Law in Australia: Its Nature and Constitutional Significance
...Kelly v Sweeney [1975] 2 NSWLR 720, 724. Chief Justice Bray seemed to be of the same view in Bagshaw v Taylor (1978) 18 SASR 564, 578. 17 [1947] AC 341. 18 Trigwell (1979) 142 CLR 617, 635. 2004 Common Law in Australia 341 ____________________________________________________________________......
-
The Common Law in Australia: Its Nature and Constitutional Significance
...Kelly v Sweeney [1975] 2 NSWLR 720, 724. Chief Justice Bray seemed to be of the same view in Bagshaw v Taylor (1978) 18 SASR 564, 578. 17 [1947] AC 341. 18 Trigwell (1979) 142 CLR 617, 635. 2004 Common Law in Australia 341 ____________________________________________________________________......
-
The Common Law and Federal Jurisdiction — What Exactly Does Section 80 of the Judiciary Act DO?
...between decisions such as State Government Insurance Commission v Trigwell (1979) 142 CLR 617 (applying the rule in Searle v Wallbank [1947] AC 341 that the owner of livestock does not owe a duty of care to users of a public highway) and Mabo (No 2) (1992) 175 CLR 1 (developing the common l......