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Report on Hackshaw V Shaw case in Adelaide Chemical and Fertilizer


Task: Prepare a detailed report on the Hackshaw V Shaw case of Adelaide Chemical and Fertilizer.


The case of Hackshaw v Shaw provides an excellent account of the act of negligence where the owner of certain land or property owes a liability towards the trespasser. The case has put more clarity on various liabilities a property owner has towards the various sort of trespassers. The judicial bench of the court has made a special effort in identifying the distinctive rules regarding the owner of a premise while considering the law of negligence as the utmost precedence.

The instance when a person fails in his responsibility not to inflict any harm to another person is termed as negligence as per the law of tort or offense. In this case, the duty of a person is described as a standard obligation of a prudent citizen in which he should obey and commit in concerned circumstances. If said in simple words, the idea of the term negligence is that the individual who is bound to give proper attention and care is required to make sensible actions while having the awareness of probable consequences that may affect other people and their property.

The major aim of this report is to justify the stance and the arguments made by the petitioner on the circumstance of duty of care entitled on an individual owing a premise to the trespassers while he is not aware of the presence of the owner.

In the case Shaw, who is a farm owner which has a petrol pump in it to fuel his pieces of machinery and vehicles used in his farm. It was being noticed that petrol kept on the farm was stolen by someone. Shaw decided to do something about the stealing of petrol but failed in the attempt. Eventually, the owner of the farm decided to report this matter to the police where he was asked for the evidences of theft. Shaw's family decided to face the situation by confronting the thief. Eventually, they devised a plan to confront the thief bearing rifles and shotguns with them at night. At night Cox, the thief arrived at the farm in a stolen car with headlights off along with a 16-year-old girl Hacksaw. As per the facts provided by Hacksaw, the petitioner, Cox entered the farm and stepped out of the car after stopping it. It is when the defendants shoot at the petitioner on her arm. Seeing this Cox returned to the stolen car and left the scene when the Shaw and family continued firing on the car. It was informed by the petitioner that the Cox was alone when he came out of the car. Shaw just aimlessly shot a bullet aimlessly to warn Cox. When Cox ran towards his car Shaw fired his second shot which passed through the door of the car where the petitioner was sitting close by. The series of firing followed broken the windscreen and punctured car tires. In this case, the judicial bench has ruled against the defenders and provided the petitioner predisposed contributory negligence. It was when the defender applied for an appeal, the petitioners had made the cross-appeal to the higher court. The judiciary bench allowed the appeal with a high majority. After this, the defender was granted an exceptional leave-in High Court (Hackshaw v Shaw (1984) 155 CLR 614).

In Hackshaw v Shaw case, three issues were observed. Since it may have been the possibility that the second person was also a trespasser and skepticism prevail that whether the defendant owed a duty of care. It should be also considered and contemplated, whether the petitioner was also responsible for her injury as she may have been aware of trespassing into other's premises. It should be evaluated whether the defender was liable for duty of care when the shot was being fired at the car.

As per the arguments of the petitioner, the shot fired by the defender was a negligent, insensitive, and a deliberate act. On the contrary, the argument made by the defender was that on the day of the incidence the Cox arrived at the farm keeping the lights of the car switched off. The defenders also enquired to the Cox about his intentions which he blatantly ignored. As per the narration, Cox has parked his car near the petrol pump and left his car. Following him, the second trespasser also came out of the car, and it was after hearing the gunshot she returned into the car. She was in pain as she was injured by the gunshot in the series of firing. It was being defended that the petitioner was injured after the bullet penetrated the door of the car.

The defender has put forward the defense in Hackshaw v Shaw case that the petitioner was a forced trespasser and therefore she was not legitimately eligible for the liability towards her which is being referred from the code of association between the owner of the premises and the trespassers. The lawyer of the defender party has referred to another case in which it was ruled that the owner of a property has no any liability or obligations towards the forced intruder or trespasser, where the owner has no any knowledge of the presence of the trespasser (Commissioner for Railways v. Quinlan (1964) AC 1054). In this case, the view of claim for reimbursement for intrusion was referred from the case of McHale vs Watson. The court has held that the liability or the burden doesn't lie on the owner of the actions are unintentional.

It was being observed by the bench an act of negligence was happened on behalf of the defender in the event of gunfire done by them by which the petitioner was wounded. In the ruling of the court, two issues were highlighted. The first issue which was being pondered upon was the liability of duty of care on behalf of the defendant towards the petitioner who was, in fact, a trespasser where the owner did not know of the occurrence of the second party. The second issue in the ruling was that the petitioner was not at fault and there was no any failure from their behalf so that the reimbursement should be delayed or withheld.

It was observed by the court that in the Hackshaw v Shaw case the petitioner and the defender had not withheld any association or affiliation as of in the instance between the owner and a trespasser. In this case, the owner was not aware of any presence of the petitioner in his property since he was a trespasser. It was towards Cox only whom the owner had a liability of care as the second trespasser was not expected or foreseen.

If the case of contributory negligence is taken into account, the jury was dubious towards the petitioners as she gave testimony that she was not aware of the Cox’s intention to steal petrol. She has contended by even denying that she was unaware of the act of theft and even being unmindful that she has entered other's property. The bench of the judiciary has perceived that though the petitioner's denial of the facts and arguments put forward by the defender, she should have avoided accompanying Cox in trespassing the defender’s property. Hence the defender was also accused of being legally responsible for committing contributory negligence.

Critical Analysis and Conclusion
The factors and aspects which should be handed over in the court to establish the tort of negligence are: -

  1. Duty of care imposed on behalf of the person
  2. Establishing the breach of duty
  3. The act of breach has inflicted injury on other people
  4. The party liable for the burden of duty could have predicted the possible injury (Legal Services Commission of South Australia, 2012).

In the case of Donoghue vs Stevenson, the intention of examining the duty of care in the neighbor's principle was put forward. It was observed in this case by the court that the individual who can predict the probability of harm or injury being inflicted towards the neighbor, which intends that the individual who owes a duty towards another individual who has a strong probability of being affected or harmed by the activities of former one, must take respectable precautions so that such accidents should be avoided in its flinch (Donoghue v. Stevenson (1932) AC 562). In this case, the general notion was laid down for duty of care in instances of negligence. The judgment was not only limited to the mere concept of duty of care in negligence as there exception for duty of care. The first exception was regarding the contributory negligence from behalf of the petitioner and the second one regarding the deliberate assumption of risk by the petitioner. As per the Civil Liability Act 2002, the court is vested with the absolute power to curtail the petitioner’s damage utterly.

The provided case is regarding the negligence committed by the defender who has provided a defense charging contributory negligence on the petitioner. The remarks of the judiciary in this case which referred to ruling promulgated in Donoghue vs Stevenson provided an overall criterion of and commandment on the sections on the owner of premises. Hence, it was made clear that the holder of the premise owes a duty towards the trespasser so that any probable injury should be avoided.

According to the interpretations given by Murphy J on the higher court ruling, the decision made by the judiciary was appreciated which pertained to the defender’s negligence because the defendant was not aware of the presence of the trespasser in his property. As per his observation, the defenders were getting the undue advantage. The defenders were earlier generally entitled to only the liability of duty of care as compared to the burden of negligence. In the Hackshaw v Shaw case the defender was not keeping any effort to safeguarding himself, instead he was indiscriminately firing at the trespasser without giving any sort of warning or alarm which was an act of extreme threat and danger. As per the judiciary, the degree of care is directly proportional to the degree of danger (Adelaide Chemical and Fertilizer Co. Ltd. V. Carlyle (1940) 534 CLR 64). Thus, a higher degree of care is needed when the accident is involved with the use of dangerous weapons like guns and explosives. Since, in Hackshaw v Shaw case, the defender was using dangerous weapons, the requirement of a higher degree of care was needed from behalf of the defender which was not addressed by them. Because of the dangerous activities done by the defenders the liability of negligence was charged on them.

According to the opinion of Murphy J., the idea of contributory negligence should be kept apart from the matter of commitment in the charge of an offense. In Hackshaw v Shaw case, Murphy has noted that the proofs and evidences submitted in this case do not display any mark of contributory negligence from the behalf of the petitioner since, going with someone in his car doesn't,t entice any danger or probability of getting shot by a gun. Even if the person has trespassed the land this much of heavy risk is not expected to happen.

As per the code of Australian law which is followed in Victoria, the duty of care is liable on the owner of premises to any individual in any condition. Any other person should not be inflicted with any harm or danger because of the activities committed by the owner of the premises (Wrongs Act 1958 s 14B(3)). The endowment in this law also bestow that in case the owner of premises has given required due care which should have been given in the case of negligence, the intruder should be able to predict the probability of danger and harm. The owner of the premises is bestowed the responsibility towards a trespasser from any sort of dangerous harm or damage. Although the trespasser is habitual in the intrusion the owner has the responsibility of due care towards his presence.

It was being observed by Dean J. in Hackshaw v Shaw case that the owner had only the mere liability of an ordinary duty of care to a person who is under the risk of having a predictable damage or injury. As per the ruling of High Court, the judiciary bench in the lower court was unsuccessful in identifying the instance of negligence and the liability of evidence on the petitioner (Civil Liability Act 2002 (NSW) s 5E). This misunderstanding was being missed by both parties exclusively as a base for their appeal.

Hence it is clear by this case that the owner of the premise owes a liability and responsibility towards the trespasser if the harm or injury to the latter is obvious or even the farthest probability could be predicted through any sort of negligence from behalf of the owner of the property. What may be the type of intrusion will be, the owner of the premise always has to pay the duty of care towards the trespasser.

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

Commissioner for Railways v. Quinlan (1964) AC 1054.

Civil Liability Act 2002 (NSW) s 5E.

Donoghue v. Stevenson (1932) AC 562.

Hackshaw v. Shaw 1984 (Cth) CLR 614.

Legal Services Commission of South Australia 2012, Negligence, Available from: [14 September 2017].

McHale v. Watson (1964) CLR 111.

Wrongs Act 1958 s 14B(3).

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