Time to abolish the rule in Searle v Wallbank for negligence and nuisance claims

Abstract

This paper concerns the rule created in the 1947 case of Searle v Wallbank, that the owner of an animal not known to be dangerous that allows it to escape and cause injury to those travelling nearby does not owe a duty of care to such travellers, and cannot be held liable in nuisance. The rule has been partly abrogated by statute in some Australian jurisdictions, and I argue that it should no longer be applied as part of the common law of tort in Australia. This is because it leads to arbitrary results, does not fit well with trends and developments in Australian tort law, and because the reasoning on which it is based, if ever applicable in Australia, is no longer applicable today.