Hackshaw v Shaw [1984] HCA 84

High Court of Australia Gibbs C.J. Murphy, Wilson, Deane and Dawson JJ. Hackshaw v Shaw [1984] HCA 84

ORDER Appeal allowed with costs. Set aside the judgment of the Full Court of the Supreme Court of Victoria and in lieu thereof order that the appeal to that Court be dismissed with costs and that the cross-appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 11 Gibbs C.J.

This is an appeal from a judgment of the Full Court of the Supreme Court of Victoria, which, by a majority (Young C.J. and McInerney J., Gobbo J. dissenting) allowed an appeal by the defendant (the present respondent) in an action brought by the plaintiff to recover damages for personal injuries and dismissed the plaintiff's cross-appeal.

The circumstances of the case were unusual. The defendant was the owner of a farm at Korong Vale in Victoria. He did not live on the farm but went there to work each day. On the farm there was a petrol tank and pump, installed for the purpose of refuelling any motor vehicles used on the farm. For at least a year before December 1978 the defendant had been plagued by thefts of his petrol. He put expensive locks on the petrol tank, but they were cut off. He wired up the hose, but that did not stop the thefts. He complained to the police but they told him that he would have to get further evidence, such as a description of the car used in the thefts, before they could act. So, after a theft on the night of 3 December 1978, the defendant decided to lie in wait for the thieves. On the night of 10 December, the defendant, accompanied by his wife, hid near the bowser. The defendant was armed with a rifle and a shotgun. His plan was that if a car was driven onto the farm he would fire at it and immobilize it, and in that way discover the identity of the thief.