CLASSIFICATION OF
LAW AND
INTRODUCTION TO
LEGAL PROBLEMSOLVING
Topic 5
Classification of law
 Private/public
 Private:
torts, contracts
 Public: constitutional,
criminal, administrative
Classification of law
 Commercial
law
 National/International law
The Common law
and
civil law
and statute
and equity
Common law legal systems
http://www.worldlawdirect.com/forum/attachments/lawwiki/113d1261617114-common-law-countries-world-map-800pxcommon_law_world.png
Criminal law
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Different to civil law
State always a party
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Rv
DPP v
The Commonwealth v
ACCC v
Punishment – imprisonment or fine –
rather than remedy
Standard of proof
Conference with Mavis Stewart and
Kylie Berg: new client.
Mavis Stewart attended our office today with her daughter Kylie
Berg and a coffee cake, baked that morning. Ms Stewart is a
keen cook and has a number of legal problems arising from a
recent kitchen renovation, in respect of which she seeks our
advice.
The kitchen renovation included new flooring. Mavis was
particularly interested in flooring as she had difficulties keeping
her slate tiles clean. She searched for low maintenance flooring
and after extensive shopping decided on single sheet vinyl
flooring. She saw just the thing at Discount Lino Barn, close to
Kylie’s home. Kylie indicated that she didn’t share her mother’s
preference for vinyl flooring as it was cold underfoot and had
suggested kitchen carpet. Kylie and Mavis spoke to Mike at
Discount Lino Barn who suggested under-floor heating could
address Kylie’s temperature issues.
Kylie provided details of the under floor
heating options while her mother left the
conference room to offer slices of her
coffee cake to the other staff. She also
advised that her mother was having
problems with Whitegoods World from
which she had bought her fridge. Kylie
advised that her mother required a
“French door” fridge with freezer drawers
underneath to accommodate the large
baking trays she used for her cakes. She
had ordered the fridge she needed from
Whitegoods World but had experienced
delivery problems.
Mavis returned to the conference room. She
advised that she had had to make a large coffee
cake that morning, even though her preference
would have been to make cup-cakes. In fact, one
of her legal problems was her cup-cake oven.
Cake Cookers is a specialist retailer which sells
products designed for those who like to cook
cakes. It retails a number of specialist pans and
other baking utensils – many imported from
America and not readily available in Australia, as
well as a special range of cake ovens. They are
located in Broome – and Mavis lives in NSW, but
Cake Cookers sells throughout Australia by
catalogue. Mavis wanted a special cake oven in
her new kitchen. She saw an oven that looked
perfect for her in their catalogue – the picture
showed 8 slide out patty pan trays instead of oven
trays – exactly what she wanted. She rang the
store and spoke to Cathy.
She told Cathy all about her cupcakes, her
favourite recipes, and her interest in the patty
pan oven in their catalogue. Cathy told her that
the patty pan oven had eight slide out patty pan
holders – instead of oven racks – and that each
patty pan holder would take one dozen patty
pans. Even better, they came with self cleaning
silicone inserts. Mavis was delighted about the
self cleaning but concerned that each tray would
only take one dozen patty pans. Although after
discussion with Cathy, she was convinced that
the overall capacity of the oven was appropriate,
and so she placed an order.
Her oven purchase was much more successful than her
fridge which, on the very day it was due to be delivered
– not only did not arrive, but the shop called her to
advise that delivery was delayed for one month. Mavis
said to the shop keeper: “Well that’s no good to me. I
ordered that fridge for today. I need that fridge today.
I told you when I needed the fridge. The only reason I
ordered from you was that you told me I could have it
today. If you can’t give it to me today, you can just
keep your fridge!! I don’t want it anymore.” Mavis then
rang Quick Fridge and ordered and received another
fridge that afternoon– suitable for her requirements.
However, one month later, Whitegoods World delivered
the fridge originally ordered and demanded payment.
Mavis told them she no longer wanted the fridge and
had cancelled the order. Whitegoods World denied the
order was cancelled – as their policy is no cancellations
after an order has been placed. They are threatening to
sue Mavis for the price of the fridge - $5,500.
As well, Mavis is being threatened with legal action
by Chrissie Saranrap. Chrissie was married a
month ago and was expecting Mavis to provide her
specialty – the “nouveau doveau” - a tiered tower
of cupcakes, iced in white and arranged to
resemble the wings of doves – as the centrepiece
cake for her wedding reception. Mavis loves doing
cakes for weddings – in fact she now makes more
money from doing wedding cakes than she does
from her regular cooking classes, although she
does find a number of her brides returning for
cooking classes.
Chrissie read information about Mavis’ cake services in
an article in the local paper, and called round to see
Mavis, and look at the different cakes she could make.
They discussed possibilities and pricing and Chrissie left
with a price list. Apparently, Chrissie called and left
Mavis a message on the answering machine ordering the
“nouveau doveau” for her wedding, to be delivered on
2nd May at the wedding reception, for $2,000 COD. In
her message, Chrissie had said: “If I don’t hear to the
contrary, I’ll assume everything is OK. Call me if there is
a problem – otherwise I will see you on the 2nd. Looking
forward to your lovely creation.” Unfortunately, because
of all the work being done to the kitchen and problems
with electrical work and electrical supply, Mavis had
experienced a number of black outs which had
interrupted her answering machine. Mavis – never
received the message from Chrissie, and so of course,
had not provided the cake.
Chrissie is very angry and claims her wedding
was ruined without the cake. She has threatened
to sue Mavis.
Mavis advised that even if she had known about
the cake order she would have had difficulty
fulfilling it because of problems with her newly
installed cake oven. When the oven arrived she
saw that instead of Australian sized delicate patty
pan holders, the cake trays were American size
muffin holders – and two trays were even jumbo
sized Texas muffin size holders. This is not what
Mavis wanted at all. Mavis rang Cathy and told
her the oven was not what she had wanted at all,
and not suitable for the cakes in which she
specialised. Cathy said she was sorry that Mavis
was disappointed, but there is nothing that they
can do about it. Mavis wants to know if she still
has to pay the $8,000 for the special cake oven.
She is also angry about the flooring she has had installed.
Despite Kylie’s protests she went with the single sheet
vinyl, and did not have under floor heating installed. The
vinyl, while easier to clean than the slate, is marking and
scuffing badly however. She has only had it down 6
months, and already there are a number of wear marks.
Her cupcake classes – which she runs 5 times a week and
more often in school holidays – are now so popular that
she has at least 20 students per class. Because of her
renovations she has room for them all around her lovely
new island bench, but the vinyl around the island bench
almost looks like a race track. It is as if her students have
worn a path around the bench – and in only 6 months.
The vinyl was quite expensive – as she had heavy grade
domestic installed – so Mavis is very unhappy. She hasn’t
yet paid the bill for the vinyl as she has been arguing with
the company. They are, according to Mavis, now getting
nasty, and want their $45,000 immediately. Advise Mavis
Problem solving methodology
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Issue
Law (Rule)
Application
Conclusion
“advise”
Answering maths and science
questions
STATE GOVERNMENT
INSURANCE
COMMISSION v
TRIGWELL
(1979) 142 CLR 617
[629]
MASON J. This is an appeal from a decision of the Supreme Court of South
Australia (King J.) in which judgment was entered for the first respondents
("the Trigwells") against the appellant Insurance Commission.
The Trigwells had brought an action for damages for personal injuries which
they had sustained when the vehicle in which they were travelling was
involved in an accident with a vehicle driven by one Christine Avis Rooke. By
their statement of claim, the Trigwells alleged negligence on the part of Miss
Rooke. Miss Rooke had been killed in the accident and the appellant was
sued as her compulsory third party insurer.
The second respondents ("the Kerins") were also joined as defendants in the
action. By their statement of claim, the Trigwells alleged that Miss Rooke
had collided with two sheep on the highway immediately before the accident
and that, as a result [630] of, or in an attempt to avoid, the collision with
the sheep, she had collided with the Trigwells. It was alleged that the
presence of the sheep on the highway was the result of negligence on the
part of the Kerins and further, or in the alternative, that the presence of the
sheep constituted a nuisance which the Kerins had failed to prevent. The
Kerins were sued as the occupiers of land adjoining the highway on which
the accident had occurred.
The Trigwells claimed that either the deceased driver or the Kerins or both
had been responsible for the accident.
By its defence, the appellant denied that there had been negligence on
the part of the deceased driver and alleged that, even if there were
such negligence, the respondent Eric Gerald Trigwell, who had been
driving the Trigwells' vehicle at the time of the accident, was guilty of
contributory negligence. The appellants also issued a third party notice
for contribution against the Kerins.
The Kerins denied the allegations of negligence and nuisance. They
maintained that, by virtue of the rule in Searle v. Wallbank , they were
not liable in negligence for the loss and damage suffered by the
Trigwells in the accident. They also denied that they were under any
duty to prevent any nuisance which might be found to have existed.
The Kerins alleged that there had been contributory negligence on the
part of Eric Gerald Trigwell, an allegation which he denied, and issued a
third party notice for contribution against the appellant.
King J. held that the deceased driver had been guilty of negligence,
thereby causing the accident in which the Trigwells had been injured,
and that the Trigwells were therefore entitled to succeed against the
appellant Insurance Commission. He held that there had been no
negligence on the part of the respondent Eric Gerald Trigwell.
His Honour concluded that the Kerins were under no liability in
either nuisance or negligence. His Honour held that the presence of
the two sheep on the highway was incapable of constituting a public
nuisance for which the Kerins were responsible. Moreover, he held
that, applying the rule in Searle v. Wallbank, in the circumstances of
the case, the Kerins were under no duty of care to prevent the
sheep from straying on to the highway and hence that no
negligence on the part of the Kerins could be established. His
Honour followed the decision of the Full Court of the Supreme Court
of South Australia in Bagshaw [631] v. Taylor which held that the
rule in Searle v. Wallbank was applicable in South Australia.
In the result, then, judgment was entered for the Trigwells against
the appellant Insurance Commission. In this Court, the appellant
challenged the finding that there had been negligence on the part of
the deceased driver. The appellant also contested the conclusion of
the Supreme Court that the Kerins were under no liability in
negligence. It was submitted that the rule in Searle v. Wallbank did
not form part of the law of South Australia and that, accordingly,
upon the evidence, there should have been a finding of negligence
made against the Kerins.
In the alternative, it was argued that, if the rule in Searle
v. Wallbank did form part of the law of South Australia,
there were, in this case, "special circumstances" within
the meaning of the rule which justified a finding of
negligence against the Kerins. Finally, the appellant
contended that the Supreme Court had erred in
concluding that the Kerins were not guilty of nuisance.
The Trigwells, who cross-appealed, supported the
appellant's case against the Kerins.
It will be convenient to consider first the liability of the
Kerins in negligence. This depends very largely on what
was decided in Searle v. Wallbank. Bray C.J. in Bagshaw
v. Taylor has examined the effect of the decision and the
operation in Australia of the principle which it enunciates.
However, as this case is in effect an appeal against
Bagshaw v. Taylor and as this Court has greater freedom
to depart from a decision of the House of Lords than the
Supreme Court of a State, it is necessary that I say
something of Searle v. Wallbank.
There the House of Lords decided that the owner or
occupier of a property adjoining the highway is
under no legal obligation to users of it so to keep
and maintain his hedges, fences and gates as to
prevent animals from straying on to it, and that he is
not under any duty as between himself and users of
it to take reasonable care to prevent any of his
animals, not known to be dangerous, from straying
on to it The decision has been much discussed,
indeed criticized, but its effect is to settle what has
been the common law of England from early times.
We were invited to hold that the case was wrongly
decided and to say that the earlier cases supported
the view that the landowner or occupier of land was
not immune from liability to negligence arising from
his failure to fence securely his land so as to prevent
stock from straying and causing injury to users of
the highway. It is not an invitation to which I would
accede…..
[632] Salmond on Torts, 17th ed. (1977), p. 344,
refers to the rule as "long-standing" and as one
which "was founded upon our ancient social
conditions and was in no way related to, or
liable to be qualified by, such matters as the
relative levels of fields and highway, the nature
of the highway, or the amount of traffic upon it".
The author cites Brock v. Richards as authority
for this statement.
It has been suggested that the rule is of modern
or recent origin, notably by Lord Wright in
Brackenborough v. Spalding Urban District
Council, in a speech to which Lord Greene M.R.
called attention in Hughes v. Williams. However,
an examination of the authorities shows that its
antecedents are ancient.
The attack on Searle v. Wallbank was chiefly founded on
the claim that the rule which it enunciated is illogical and
that the conditions on which it was based historically have
altered in a fundamental way. According to the appellant,
it is illogical that the occupier of land should be liable for
damage done to a neighbour's property by reason of his
animals straying and that he should be immune from
liability for personal injury done by his animals (not known
to be dangerous) straying on to the [633] highway
through his failure to maintain his fences. The explanation
for this apparent illogicality is, of course, to be found in
the historical facts. As Neville J. said in Heath’s Garage
Ltd. v. Hodges : “In my opinion the experience of
centuries has shown that the presence of domestic
animals upon the highway is not inconsistent with the
reasonable safety of the public using the road.”
It is then said that as there was a radical change in the
relevant conditions, a change brought about by the
development of roads and highways, the growth of fast-moving
motor traffic on a large scale and a substantial increase in the
fencing of properties, the House of Lords should have held that
the rule was no longer appropriate to modern circumstances
and that the ordinary principles of negligence should apply to
the occupier of land whose straying animals caused accidents
on the highway. In short, it is argued that the House of Lords
should have reviewed the existing law in conformity with the
suggestions made by the Court of Appeal in Hughes v. Williams
I do not doubt that there are some cases in which an ultimate
court of appeal can and should vary or modify that which has
been thought to be a settled rule or principle of the common
law on the ground that it is ill-adapted to modern
circumstances. If it should emerge that a specific common law
rule was based on the existence of particular conditions or
circumstances, whether social or economic, and that they have
undergone a radical change, then in a simple or clear case the
court may be justified in moulding the rule to meet the new
conditions and circumstances. But there are very powerful
reasons why the court should be reluctant to engage in such an
exercise.
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 courts facility, 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 enquiries
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 and individuals who may be vitally interested in
the making of changes to the law. In short the court cannot,
and does not, engage in the wide-ranging inquiries and
assessments which are made by governments and law reform
agencies as a desirable, if not essential, preliminary to the
enactment of legislation by an elected legislature. [634]
These considerations must deter a court from departing too
readily from a settled rule of the common law and from
replacing it with a new rule. Certainly, in this case they lead
to the conclusion that the desirability of departing from the
rule in Searle v. Wallbank is a matter which should be left to
Parliament.
It is beyond question that the conditions which brought the rule
into existence have changed markedly. But it seems to me that
in the division between the legislative and the judicial functions
it is appropriately the responsibility of Parliament to decide
whether the rule should be replaced and, if so, by what it
should be replaced. The determination of that issue requires an
assessment and an adjustment of the competing interests of
motorists and landowners; it might even result in one rule for
urban areas and another for rural areas. It is a complicated
task, not one which the court is equipped to undertake.
My conclusion is, then, that we should accept that what was
and has been the common law for England was correctly
decided by Searle v. Wallbank. The next question is whether
the law as declared by the House of Lords in that case
represents the law of South Australia. The proper approach to a
determination of such a question was adopted by the Supreme
Court of Victoria in Brisbane v. Cross, and by the Supreme
Court of South Australia in Bagshaw v. Taylor. Accordingly, the
inquiry must be whether the law in Searle v. Wallbank was
applicable in the colony of South Australia upon its settlement
and further, whether the law, if so applicable, has been varied
or abolished by subsequent local legislation.
It is a well-established principle that, in settled colonies,
so much of the common law of England is introduced as
is applicable to the situation of the colonists and the
condition of the colony (see Halsburys Laws of England,
4th ed., vol. 6, p. 589; Cooper v. Stuart). The
applicability of the law in question depends not upon
whether the court considers the law suitable or
beneficial for the colony, but upon whether the law is
capable of application in the colony (Delohery v.
Permanent Trustee Co. of N.S.W.). The date upon which
the applicability of the English common law to the
settled colony of South Australia falls to be considered
has been fixed by local enactment. Section 3 of Act No.
9 of 1872 (S.A.) provides that "In all questions as to the
applicability of any laws or statutes of England to the
Province of South Australia, the said province [635]
shall be deemed to have been established on the 28th
day of December 1836".
The issue, then, is whether the common law of England, as
settled by the decision of the House of Lords in Searle v.
Wallbank, was applicable, in the relevant sense, to the colony
of South Australia on 28th December 1836. There is no
reason for holding that the rule in Searle v. Wallbank was
inapplicable in South Australia on that date. The physical
conditions obtaining in the colony—those relating to the state
of the roads and fencing of land, and to the presence of
straying stock upon the highways—were not so markedly
different from those existing in England that the law could be
said to be inapplicable to the colony. There was nothing in
the legislation in force in the colony as at 28th December
1836 that had the effect of making the relevant common law
inapplicable to the colony.
Subsequent statutory provisions such as s. 14 (2) of the
Impounding Act, 1920 (S.A.), permitting the impounding of
cattle wandering or straying upon the road and, in effect, the
imposition of a penalty upon the owner of the cattle, have not
displaced the common law because they confer no private
right of action upon a person injured by the straying cattle
(see Searle v. Wallbank).
There has been no counterpart in South Australia to the
legislation in Western Australia which required and
encouraged the fencing of properties, legislation which was
relied upon by the Supreme Court of Western Australia to
justify the conclusion that the rule in Searle v Wallbank is not
part of the law of that State (see Thomson v. Nix).
The view might be taken that conditions prevailing in
Australia, or some parts of Australia, are more suited to the
[636] retention of the rule in Searle v Wallbank than the
conditions which prevail in the United Kingdom. Not only is
Australia predominantly rural in character but its rural
interests centre very substantially around the raising and
keeping of livestock. I mention these considerations, not with
a view to saying that the rule ought to be retained, but so as
to emphasize the point that the issue of retention or abolition
calls for an assessment and a adjustment of conflicting
interests, the principal interests being those of the rural
landowner and occupier and those of the motorist.
The fact that the United Kingdom Parliament has
abolished the rule has no relevance for us, except to
confirm my opinion that the question should be left to
Parliament. As conditions here differ from those which
prevail in the United Kingdom we cannot automatically
assume that all Australian legislatures, or that the South
Australian Parliament in particular, would take the same
view as that which has been taken in England. With
great respect to Samuels J.A. who thought otherwise in
Kelly v. Sweeney I do not consider that the abolition of
the rule by the United Kingdom Parliament on the
recommendation of the English Law Commission is a
relevant consideration for this Court.
We must proceed, therefore, on the footing that Searle
v. Wallbank forms part of the law of South Australia.