By John McKechnie AO, KC
It was a hot February day in 1914 and by nine o’clock in the evening, Mr McLarty’s team of cart horses had had enough. Only a mile or so from Swan Hill in Victoria, they were too fatigued to climb the hill on the Swan Hill- Nyah public highway.
What to do? The waggon they were pulling was carrying a full load of wheat. Mr McLarty unhitched the team and left the laden waggon in the middle of the road for a few hours. Other carriers had done something similar on occasion. Leaving his faithful dog as the sole guard, Mr McLarty made his way to Swan Hill.
They had dragged the blessed loading,
For many a weary mile,
With nought but whack across their backs,
The day-long to beguile. *
Now it so happened that his was not the only team of horses on the road that night. Mr John Hannon, a farmer and carrier lived nearby. He was in the habit of letting his own team of horses to wander slowly seven miles up the road to a paddock. About 4 o’clock, giving instructions to his mother to open the gate to the yard and let the horses out, he drove to the paddock and opened the gate for their arrival.
The horses knew the way. They would quietly wander up the road until they came to the paddock where they would turn in. They had been doing this for three years without incident.
On they trundled until they came to the loaded wagon, right in their path.
Now there are two things to know about horses and wheat. Wheat is most attractive to horses and in fact constitutes an allurement so strong that they will break through anything possible to get at it.
The second thing is that wheat is poison to horses.
Sometime in the late evening the horses found, temptingly in their way, a waggon chock a block full of bags of wheat.
They proceeded to break open the bags and gorge themselves with fatal results. Four horses died and the remainder were rendered unfit for further work.
The owner of the horses, Mr Hannon, sued Mr McLarty, the carrier, in the Swan Hill District Court. He was successful and Mr McLarty was ordered to pay 160 pounds in damages.
However, Mr McLarty successfully appealed to the Victorian Court of Appeal. The Acting Chief Justice was scathing of Mr Hannon for leaving his horses to roam loose. There would have been no mischief if there was someone looking after the horses.
Justice Cusson concluded that there had been no nuisance. Mr Hannon’s horses were trespassers on the highway.
An application by Mr Hannon to challenge the Court of Appeal decision in the High Court, failed. Chief Justice Griffith remarked that he thought the decision was manifestly right.
Adapted from McLarty v Hannon (1914) VLR 526; numerous newspaper articles from Trove.
* The quote is from The Working Bullock’s Reprieve by Francis Hodgson Nixon.
