Beverley v Hill-Douglas & Hill-Douglas

[1998] QSC 31

IN THE SUPREME COURT

OF QUEENSLAND
  No. 1340 of 1991

[Beverley v Hill-Douglas & Hill-Douglas]

BETWEEN:
  DALLAS LESLIE BEVERLEY
  Plaintiff

AND:
  SHOLTO ALBERT SIDNEY HILL-DOUGLAS and
  ZOE MARY ELIZABETH HILL-DOUGLAS
  trading as A.E. HILL & COMPANY
  Defendant

CATCHWORDS:                 EMPLOYER’S NEGLIGENCE - failure to adopt safe and proper system of work - duty of employer - assessment of damages - contributory negligence.

Counsel:R.R. Douglas Q.C. with him T.D.O.J. North for the plaintiff.

P.C.P. Munro for the defendants.

Solicitors:Clayton Utz for the plaintiff.

Tutt & Quinlan for the defendants.

Hearing Dates:             2 - 4 February 1998

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 4 March 1998

The plaintiff claims against his defendant employers for injuries suffered by him in a motorcycle accident on 10 September 1988.  On that date the plaintiff was a jackaroo on Luthrie Station owned and operated by the defendants.  He alleges that on the day of the accident and immediately prior to it, he was mounted on a motorbike conducting an inspection of bores and fly traps on the property and was also checking for fly-blown sheep.  After visiting a bore described as “number one bore”, he says that he observed fly-blown sheep and set about cutting them out from the flock.  He says that whilst engaged in this activity his motorbike ran into a wire fence separating one paddock from another.  A strand of wire on the fence struck the him on the neck causing severe injuries.

The principle acts of negligence alleged against the defendants are:-

(a)failing to maintain a safe system of work;

(b)failing to construct or maintain the dividing fence in such a way as to make it reasonably observable by persons working in close proximity to it on vehicles such as two wheeled bikes;

(c)failing to give the plaintiff any instruction or training as to proper or safe methods of manoeuvring a motorcycle whilst mustering or otherwise working with stock in close proximity to fences;

(d)failing to provide a trained sheepdog or sheepdogs.

The defendants admit that the plaintiff was injured when the motorcycle ridden by him collided with a dividing fence on Luthrie on 10 September 1988. 

The defendants, in their defence, however:-

(i)deny that at the time of the accident the plaintiff was acting in the course of his employment;

(ii)deny that the plaintiff was mustering sheep;

(iii)deny that the collision occurred within the plaintiff’s working hours.

The defendants also allege that the plaintiff’s injuries were caused or contributed to by his own negligence, namely:-

(a)failing to keep a proper lookout;

(b)riding a motorcycle at an excessive speed;

(c)riding the motorcycle while under the influence of intoxicating liquor;

(d)riding the motorcycle with a pillion passenger when the motorcycle was not designed to carry a pillion passenger;

(e)riding the motorcycle when the plaintiff knew that the design of the motorcycle and the weight of the pillion passenger was such as to compromise his ability to control the motorcycle whilst carrying a pillion passenger.

Apart from leading some evidence to the effect that there were no footrests fitted to the motorcycle for use by a pillion passenger, the defendants did not adduce evidence to support the allegations in paras.(b), (c), (d) and (e) above.

There was no challenge to the evidence of the plaintiff that, at the time of the accident, he was engaged in the activity of checking bores, fly traps and looking for fly-blown sheep and was doing so pursuant to express or implied instructions and within normal working hours.  The main thrust of the defendant’s case was that:-

(a)the plaintiff was not cutting out or mustering sheep at the time of the accident as he alleged;

(b)the accident occurred when the plaintiff rode a motorcycle down a graded road in the paddock in which number one bore was situated and into a dividing fence which  was at right angles to the road in the location in which the accident occurred.

It was not put to the plaintiff that the accident occurred whilst the plaintiff was engaged in some frolic or joyride and I do not understand that to be part of the defendants’ case as presented.

The Plaintiff

The plaintiff was born on 30 May 1966.  He left high school in 1982 after completing his junior school certificate.  He worked for a few months in 1983 as an apprentice chef.  From about the beginning of 1984 he worked as a contract shearer for approximately a year.  In the course of that employment he also performed duties as a rouseabout on various sheep stations which work included bringing sheep out for the shearer to shear.  At the conclusion of that employment, he worked until August 1987 as a private contractor with a builder.  He commenced employment with the defendants as a jackaroo on Luthrie in August 1987.  He was an experienced motorbike rider having commenced riding at age 12.  He also had some experience of handling sheep.  He had been brought up on his parents’ property which, although a cattle property, ran a few head of sheep.  An adjoining property, it seems, was a sheep property.

Prior to the accident the plaintiff contemplated acquiring a farm in partnership with his father.  The accident made it impractical for the plaintiff to proceed with the proposed venture.

The Plaintiff’s Employment and Duties on Luthrie

The plaintiff was employed as a jackaroo on Luthrie for in excess of 18 months.  For most of the plaintiff’s period of employment, the property was worked by himself and Mr Sholto Hill-Douglas, a defendant.  On occasions, contract jackaroos were engaged and assistance obtained from a person on a neighbouring property.  The normal day-to-day work of fencing, building yards, mustering and dipping was done by the plaintiff and Mr Hill-Douglas together “as a team”.  The plaintiff was also required to check bores to ensure they were operating properly, set and check fly baits and detect and treat fly-blown sheep.  Motorbikes were used on the property for mustering and general transportation.  No horses or sheep dogs were used. 

The plaintiff was given no formal training or instruction as to how to perform his duties.  He came to the property with some experience of work on rural properties and was expected to learn by observation.  The plaintiff had observed Mr Hill-Douglas separating fly-blown sheep out of the flock by riding up beside them on a motorbike, putting one leg over the selected animal and dragging it towards the motorcycle.  On other occasions Mr Hill-Douglas drove up to the animal took hold of it and held it until it stopped running.  The plaintiff was a competent and willing worker.  At the time of the accident he had worked on Luthrie for some months and was reasonably familiar with its physical features.

The Plaintiff’s Accident

As mentioned earlier, the parties differ as to the circumstances in which the plaintiff’s accident occurred.  It is common ground that the plaintiff drove a motorcycle through a fence which divides the paddock in which number one bore is situated from an adjoining paddock at around the point where a road, which runs across the south-east corner of the former paddock, meets the fence line.  The defendants contend that the plaintiff was driving down the road immediately prior to the accident.  The plaintiff does not accept that this was so.  The following facts are also not in dispute.  At the time of the accident a young woman employed on the property as a nanny, Miss Riggs, was riding behind the plaintiff as a pillion passenger.  The fence was approximately 5 foot high.  The fence had 5 strands of 12½ gauge high tensile wire and a top strand of 10 gauge soft wire.  The fence posts were gidgee wood and steel.  There were approximately 16 wooden posts to the mile.  They were interspersed with as many as 12 steel posts which were, or were similar to, steel posts commonly described as “star pickets”.  Between each panel of uprights there were three metal devices described as “lightening droppers” inserted for the purpose of keeping the fence wires separated. 

There was a cleared area, graded at irregular intervals, on both sides of the fences surrounding number one paddock.  The clearings served both as tracks and firebreaks and were graded when Mr Hill-Douglas thought that the amount of vegetation on the cleared areas warranted the work.  The firebreaks did not go right up to the fence line.  The gap between graded areas on each side of the fence varied from about 20 feet in width to about 40 feet.  There was a windrow or rill on each side of the firebreaks left by the blade of the grader which, periodically, graded one side of the firebreak travelling in one direction and then the other travelling in the opposite direction.  No evidence, apart from photographic, was given as to the height of the rills.  Exhibit 22 is a photograph of a portion of the road which runs up to the dividing fence at about the point where the accident occurs.  The photograph was taken looking in the direction of the fence.  One can see a pronounced rill of the left-hand side of the road and one which is far less pronounced and which appears to be broken in places on the right-hand side.

The evidence does not establish with any degree of clarity when, relative to the accident, the diagonal road and the windbreaks were last graded.  Mr Hill-Douglas thought that “it could have been as long (ago) as 1986".  Mr Hill-Douglas also gave evidence of inspecting what he thought to be the scene of the accident when he returned to the property some days after the accident.  He said that he observed a track which appeared to be that left by a motorbike leading down the diagonal road, going through the fence at the point of the break and continuing on for some 20 metres through the fence initially travelling in a straight line and then making a gentle curve to the left and coming to rest on end some 20 metres from the fence.  He did not conduct any investigation into how far up the diagonal road the motorcycle track continued. 

I do not doubt that Mr Hill-Douglas was a truthful witness.  There is some degree of discrepancy between Mr Hill-Douglas’s recollection of the state of the tracks recollected by him, if they were the tracks left by the plaintiff’s motorbike, and the evidence of the plaintiff and Miss Riggs.  Both of the latter were of the belief that they did not travel on the diagonal road.  Miss Riggs is clear in her evidence of being pushed off the bike by the force of the plaintiff’s body against hers immediately after the impact and of landing with part of her body on the wheel of the motorbike.  That account, if correct, does not suggest that the motorbike followed the route identified by Mr Hill-Douglas.  There is some evidence that another person was at the scene of the accident before its inspection  by Mr Hill-Douglas and it is possible that some, or all, of the tracks seen by Mr Hill-Douglas were left by that person. 

I find that if the plaintiff’s motorcycle travelled on the diagonal road it did so for only a short distance prior to striking the fence and that the plaintiff and Miss Riggs were then unaware that they were on the road.  I also find that:-

·Any such section of the diagonal road had vegetation growing on it such that a person inadvertently coming onto it would not, necessarily, realise instantly that he or she was in fact on a roadway. 

·There was also a considerable amount of regrowth on the firebreak immediately before the fence at the point of the accident such that the plaintiff could easily have failed to notice its existence until he was actually on it. 

·The plaintiff, in fact, was not aware of the existence of the firebreak in his immediately locality until he was in the act of driving across it. 

·The fence and the fence line were not readily visible on the afternoon of the accident.  There was nothing in the colour of the fence posts, fence wires or their respective shapes which would tend to stand out and catch the eye of a person travelling across the paddock, particularly if the person was not consciously looking out for the presence of a fence.  Lighting conditions may play a part in the ability of such a person to notice the presence of a fence or fence line.

The plaintiff swore that after inspecting number one bore, he noticed at least one noticeably fly-blown sheep.  He cannot now recall whether he then noticed more affected sheep.  He said that he was manoeuvring the flock sheep into the corner of the paddock with a view to selecting and cutting out the re-affected sheep when:-

“I saw suddenly that I was on the oil track (his description of the firebreak parallel to the fence), which was approximately 15-20 feet away from the fence.  As I hit the oil track, I hit the brakes and Lorraine screamed.  We had both seen the fence at the same time.”

The plaintiff was cross-examined with a view to showing that it was unlikely that he was engaged in any mustering exercise as a preliminary to cutting out affected sheep.  Miss Riggs, the pillion passenger, gave evidence to the effect that:-

·the plaintiff asked her to look for fly-blown sheep after pointing one out to her;

·immediately prior to the accident the motorbike driven by the plaintiff upon which she was a passenger was travelling across a paddock;

·she was looking out to the side for sheep “that may have been down”;

·the sheep were scattered;

·both the plaintiff and her saw the fence immediately prior to hitting it;

·after the motorbike hit the fence, she was thrown off the bike in “something of a backflip” and came to rest lying partly on a bike wheel and partly on the ground;

·she, at the time, knew nothing of mustering or of grazing or farming operations.

Miss Rigg’s recollection was that immediately prior to the accident, the plaintiff was not engaged in herding the scattered sheep.  In cross-examination, the following exchange occurred:-

“Whether he was mustering or not, you wouldn’t know, would you?--  We weren’t driving in an erratic fashion.

I appreciate that.  But whether he was mustering sheep or not and looking for fly-blown sheep, you wouldn’t be qualified to know, would you?--  I suppose not, no.”

Miss Riggs was called by the defendants and I gained the impression that she was a fair and impartial witness.    The activities in which she was engaged on the day of the accident were novel to her and she had less reason to recall the precise circumstances surrounding the accident than did the plaintiff.  It is also the case that if, at the time of the accident, the plaintiff had not discussed with Miss Riggs his intentions in relation to mustering and had not engaged in any protracted or particularly strenuous herding activities or manoeuvres, it would not be surprising if she failed to appreciate or remember that the plaintiff was mustering sheep immediately prior to the accident.

The Plaintiff’s Injuries

After the accident, the plaintiff experienced considerable pain, nausea and breathing difficulty.  He overcame his condition sufficiently to start the motorbike and ride it back to the homestead.  A painter at the homestead took the plaintiff to meet an ambulance dispatched from Longreach.  The plaintiff had emergency treatment at Longreach and was promptly flown to Brisbane so that extensive surgery could be carried out.  After the plaintiff recovered consciousness in a Brisbane hospital on 13 September 1988, he spent some three weeks in intensive care.  He needed to have blood and mucus extracted from his lungs on a regular basis.  Frequently the blood and mucus dried and the plaintiff was in fear of choking to death.  His inability to communicate added to his fears and frustrations.  This procedure was carried out approximately every two hours causing the plaintiff extreme pain and nausea.  The plaintiff’s stomach feeder tube was removed six weeks after the accident when he had a further operation “to have the T tube taken out and a tracheotomy put in”. 

The plaintiff was discharged from hospital more than six weeks after admission, when he went to reside with his mother in Coffs Harbour.  For six months after the time of his discharge he was unable to talk and, as a result, experienced frustration and anger.  He then started to drink steadily and excessively.

In a report dated 19 September 1991 Dr Bruce Benjamin (ear, nose and throat surgeon),  after referring to various operations conducted on the plaintiff’s throat to improve the narrowing of his airways, said:-

“In summary a very serious injury was sustained damaging the breathing passages which were torn apart.  The nerves to both vocal cords were paralysed and the vocal cords remain paralysed.  Fortunately his life was saved by emergency treatment but a stenosis formed where the airway was sewn together.  This finally required the bone graft which has been successful.  Both vocal cords remain paralysed so that he has a soft breathy voice which is reasonably serviceable for quite conversation.  He cannot shout, sing or project his voice.  He has some noisy breathing at night but otherwise has made a good recovery.”

As is recorded in various other reports, the paralysis of the plaintiff’s vocal cords has the result that air is expelled from the plaintiff’s lungs when heavy lifting or strenuous labour is attempted by him, causing shortness of breath.  The plaintiff’s breathing problem restricts his ability to perform heavy manual labouring tasks.  His condition also restricts his ability to work in environments in which dust or fumes are present.

I conclude from the medical evidence, at least on the present state of relevant knowledge, that no further remedial treatment is necessary or desirable.  The exception to this is that if the plaintiff’s airway becomes compromised by respiratory infection or some other cause further surgery may be required but is likely to cause a deterioration in the plaintiff’s speech.  Dr Black (ear, nose and throat specialist) on 14 October 1997 assessed the plaintiff’s total impairment “of the whole person” at 64%.  He further reported:-

“This gentleman has significant compromise of the airway and I believe there will be an ongoing requirement for medical treatment.  An upper respiratory infection such as a simple viral sore throat would stand a chance of compromising his airway and its conceivable that he would require hospitalisation from time to time.” 

The plaintiff was admitted to the psychiatric unit of the Toowoomba Hospital in March 1997 with a history of suicidal thinking, energia, insomnia, reduction of appetitive interest and depression.  He was there treated with an anti-depressant drug and was then transferred to the Community Health Centre and a general practitioner for continuing treatment.  Dr Curtis, consultant psychiatrist, concluded that the depressive illness suffered by the plaintiff was a consequence of his accident.  There appears to be no evidence of any relevant symptoms prior to the accident.  He reported in July 1997 that the plaintiff had suffered a severe nervous shock with chronic physical and mental sequelae of an accident “from the psychiatric viewpoint, he had a severe post-traumatic stress disorder with chronic symptoms superimposed  on a state of substantial, irreversible physical sequelae of the accident”.  Dr Curtis saw the plaintiff again on 13 January 1998 and noted in a report of 14 January 1998 that:-

“Mr Beverley’s presentation to me on 13 January 1998 exhibited a global dilapidation of the quality and quantity of his personality attributes.  I did not consider that he had had a reoccurrence then of the depressive syndrome.  It was noted that he had ceased taking the anti-depressant Prozac, which had been provided in Toowoomba . . .  Mr Beverley presented with a clinical picture of unmistakable deterioration of personality functioning (compared to when I last saw him).  He appeared to have lost some muscle bulk and tone, so that he looked physically less robust as well . .  He lacked the animation and self-expression he had before . . He thought of himself that his depression had recovered, that he had been left with a chronic depression of mood, which amounted to an absence of good quality feelings and a general diminution of his appetitive drives (his overall motivation) as well as his libidinous drives.  He indicated that he was feeling that he was inadequate in his marriage in an ongoing way.  He was also sexually unhappy in his marriage, based on his depressive dysphoric state.”

Dr Curtis concluded that the plaintiff needed comprehensive and continuing treatment for his psychiatric abnormalities.  He considered also that the plaintiff and his wife needed marriage and stress counselling.  His opinion was that appropriate treatment and counselling, and in particular the former, was not available in the Bell or Dalby.  Although he conceded that the plaintiff would derive some benefit from the conclusion of the case and improvement in his economic position, should he prove successful, he was of the opinion that complete recovery was unlikely.  As a result of his injuries the plaintiff has been plagued with headaches and dizziness since the accident.  Those symptoms together with periodic bouts of nausea have diminished the quality of his personal life and limited his ability to engage in manual work.  I should mention that the plaintiff has undergone some 30 or so surgical procedures on his neck since the accident.  Most, if not all have been painful and distressing to the plaintiff.  Many of them were preceded and followed by days of nausea, pain and discomfort.

The Plaintiff’s Post-Accident Work History

In 1990 the plaintiff obtained a part-time job cleaning and washing houses.  He felt he was unable to continue in that work due, in part, to the need to avoid water in his tracheotomy tube.  He commenced work as a ganger or foreman with the Brisbane City Council on 22 September 1990.  The work involved the concreting of kerbs, channels and footpaths.  The plaintiff, for reasons discussed above, had difficulty in coping with the physical exertion required in the job.  He then obtained employment with an aircraft company as a cleaner and catering assistant.  In that job he was required to clean the outside of planes, detail the inside and restock the planes’ meals and refreshments.  He found working inside the planes difficult because of chemical odours which occasioned breathlessness.  He also found that exposure to water gave him a permanent cold which caused him breathing difficulties.  He stayed in that job for about a year.  After leaving that job he started his own business as a property maintenance engineer, handyman and gardener.  That business was started in 1992.  In the year ended 30 June 1993, the first full year in which the business was conducted, it earned approximately $28,000 gross.  In the following year, gross income was approximately $46,000.  The plaintiff persevered with the business but the manual work involved caused him exhaustion, discomfort and distress over a long period.  Eventually, he found himself unable to continue.  His decision to terminate the business was precipitated by a fall from a tree whilst engaged in tree lopping. 

In mid-1996 the plaintiff moved to Bell where the climate is drier.  The plaintiff has found that he has fewer respiratory problems there but there is limited work available there.  He worked at the Bowls Club in 1997 in unpaid employment.  He and his wife purchased a disused shop premises in Bell with a view to the plaintiff’s wife establishing a gallery and coffee shop.  The plaintiff has done home handyman work in renovating the building. 

Liability

In the presentation of the case and in submissions the plaintiff’s counsel, appropriately in my view, abandoned reliance on allegations based on the construction, maintenance and marking of the dividing fence. 

The principal thrust of the plaintiff’s case was that requiring a jackaroo or stockman to muster or cut out sheep using a motorbike constituted a failure to provide a safe system of work, unless the workman was provided with a suitably trained sheepdog or assistance by another person.  The substance of the argument, as I understood it, was that the unaided task of mustering or cutting out sheep was much more difficult to perform than the same task with the aid of a trained sheepdog or another skilled person.  It was implicit in the argument, I think, that the increased difficulty in the task led to a necessary increase in concentration on the part of the sole workman on the tasks at hand with a consequent lowering of his ability to keep a proper lookout for hazards such as holes in the ground, protruding rocks, tree stumps and fences.  An allied argument advanced was that cutting out sheep by the method of placing one leg over a sheep whilst riding beside it on a motorbike was not sound practice for a stockman and posed a substantial risk of injury. 

I accept the evidence of Mr Parr, an experienced grazier, that a good sheepdog can greatly facilitate the task of mustering and cutting out sheep.  I accept also that such a dog can, by itself, largely complete the work of mustering and/or cutting out leaving the stockman using the dog free to exercise a less active and more supervisory role. 

I am inclined to accept the evidence of Mr Parr that cutting out sheep by means of riding up beside them on a motorbike and securing them under the cyclist’s leg is not sound practice.   However, I do not find it necessary to determine that matter as it does not seem to me that such a finding would resolve the question of liability.  The plaintiff was not injured whilst attempting to cut out a sheep in this fashion even though he may have intended to use this method of securing sheep after he had manoeuvred the flock in to a suitable location.  His injury resulted from his failure to notice the presence of the fence because he was concentrating on locating fly-blown sheep and/or on herding sheep.  The plaintiff was not obliged to use the method of securing fly-blown sheep that I have just discussed.  There were other methods used by Mr Hill-Douglas and others when riding motorbikes.  One method, which Mr Parr agreed was perfectly ordinary practice, was to ride up beside up a fly-blown sheep, take hold of it, stop the motorbike, alight and tie it up.  In my view, if it was a breach of the defendant’s duty to permit the plaintiff to use the method of securing sheep of which the plaintiff complains or not to warn the plaintiff against it, such a breach did not cause any loss or damage to the plaintiff.  Nor do I conclude that the failure to provide the plaintiff with a sheep dog or a human assistant for the work of mustering, if in breach of the defendants’ duty, was the cause of any loss.  The fact that the defendants’ conduct may have increased the likelihood of an accident or injury is not sufficient, of itself, to establish that such conduct was the cause of the plaintiff’s loss. Wilsher v. Essex Area Health Authority (1988) AC 10. As was stated in Medlin v. State Government Insurance Commission (1995) 182 CLR 1 at 6:-

“For the purposes of the law of negligence, the question of whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as the matter of commonsense and experience . .”.

The accident was caused through the plaintiff’s failure to keep a proper lookout for obstacles whilst engrossed in other activities, not including securing sheep to the side of his motorbike.  Assuming, for the purposes of argument, that it was a breach of duty by the defendants not to supply the plaintiff with a sheepdog or the assistance of another employee, it is difficult to conclude that the requisite causal connection exists between breach of duty and the accident.  If the plaintiff had had such forms of assistance on the occasion in question he could still have been executing a manoeuvre on his motorbike in the subject location and have struck the fence inadvertently.  But I cannot conclude that there was no safe system of work merely by virtue of the fact that the plaintiff mounted on a motorbike was required to perform tasks of mustering and cutting out by himself.  The fact that the work may be more time consuming and more difficult to perform does not lead to the conclusion that it is unsafe. 

I now turn to consider the allegation that the defendants breached their duty by failing to give the plaintiff any adequate instructions or training with respect to the proper or safe methods of manoeuvring a motorbike whilst mustering or otherwise working with stock in close proximity to the dividing fence.

The defendant’s duty was:-

“... that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury.”  Hamilton v. Nuroof (W.A.) Pty Ltd (1956) 96 CLR 18 per Dixon C.J. and Kitto J.

The passage was referred to with approval in the joint judgment of Mason, Wilson and Dawson JJ. in Bankstown Foundry v. Braistina (1985-1986) 160 CLR 301. In that judgment it was observed that it had long been recognised that what is a reasonable standard of care for an employee’s safety is “not a low one”. It was said further in the judgment at 309 that:-

“As Mason, Wilson, Brennan and Dawson JJ., said in McLean v. Tedman (1985) 155 CLR at 313: `Accident prevention is unquestionably one of the modern responsibilities of an employer’. However, it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee.”

The employer’s duty is not merely to provide a safe system of work.  Clearly, the observation in the last sentence of the passage quoted immediately above extends beyond work which is carried out repetitively under strain;  McLean v. Tedman (supra) at 311 and Ferraloro v. Preston Timber Pty Ltd (1982) 56 ALJR 872 and 873. There is an obligation to “establish, maintain and enforce such a system”. McLean v. Tedman at 313.

Very little evidence was adduced as to the dangers inherent in using motorbikes in the type of country and in the circumstances under consideration.  I am prepared to find, however, that the work of mustering, cutting out cattle, sheep and travelling through a flock looking for fly-blown sheep poses a material risk of an accident of the type which in fact occurred.  There was a material risk of running into a fence or other obstacle whilst performing a task which necessarily requires considerable concentration on an object or objects other than the motorcyclist’s route of travel.  That risk, in my view, was readily foreseeable.  No evidence was led as to ways in which such a risk could be obviated or reduced as a matter of practicality.  Nor was there any evidence of industry practice.  Immediately prior to the accident the plaintiff had not located the position of the fence, he was not alerted to the need to do so and nor was he keeping a careful lookout for the fence.  It was submitted on behalf of the defendants that there was no need to give any instruction or warning to the plaintiff.  Not only, it was submitted, was he was an experienced motorcyclist but he was also experienced in the handling of stock and had knowledge of the paddock and the location of fences based on over a year’s experience of working on the property.  These points have much to commend them.  The risk of running into dangerous objects whilst traversing  a large paddock on a motorbike unless one keeps a careful lookout is obvious enough.           However, in my view, the principles to which I have referred, demanded that the defendants took at least some steps to bring home these dangers to an employee such as the plaintiff and to ensure, so far as was reasonably practical, that the plaintiff kept in mind the warnings given to him of the necessity to keep careful lookout for fences and the like whilst engaged in activities such as mustering.  In my view, it was not sufficient for the defendants to simply trust to the experience natural caution (if any) and judgment of the plaintiff.  Mr Hill‑Douglas was a far more experienced person than the plaintiff.  The latter was relatively young at the time and had gained most, if not all, of his experience of stock whist mounted on a motorbike in the course of his employment with the defendants.  Particularly whilst the plaintiff was working alone, there was always the possibility that the need to concentrate on the activities at hand would lead to a lack of attention to his own safety.  The defendants thus breached a duty of care owed to the plaintiff and the plaintiff, in consequence, suffered loss and damage.

Contributory Negligence

I do not find any contributory negligence on the part of the plaintiff.  In the case, as finally argued on behalf of the defendants, there was no suggestion of disobedience of instructions as to any relevant activities.  The plaintiff’s conduct was not unusual, abnormal or unexpected.  c.f. the observations in the joint judgment in Bankstown Foundry v.  Braistina (supra) at 310-311.

ASSESSMENT OF DAMAGES

I assess the plaintiff’s damages as follows:-

1.        General damage

$80,000.00

2.        Interest (on $40,000 at 2% for 9.4 years)

$ 7,520.00

3.        Past economic loss ($166,255 less nett

earnings from personal income $75,419)

$90,836.00

4.        Interest (at 6% for 9 years on $34,683)

$18,729.00

5.        Future loss of earning capacity

$240,975.00

6.        Past gratuitous care

$35,693.00

7.        Interest ($35,693 x 2% x 9 years)

$6,424.74

8.        Future gratuitous care

$27,540.00

9.        Special damages (including Fox -v Wood)

$21,551.00

10.      Future medical expenses

$11,000.00

11.      Past superannuation (including interest)

$5,461.76

12.      Future superannuation

$18,073.00

Less refund to Board

$75,799.50

TOTAL

$488,004.00

The following observations are necessary to explain parts of the above table.

Past Economic Loss

I have accepted the accuracy of Schedule C of the plaintiff’s written submissions except that I find the plaintiff’s earnings from sales of hides of kangaroos shot by him to be $5,000.  I confess some difficulty in arriving at that figure on the state of the evidence.  I do not accept that the plaintiff’s kangaroo shooting activities were as consistent or as extensive he contends but I do accept that his earnings in that regard were not minimal.

I accept a probable legal entitlement to an average of 4 hours per week overtime.  I calculate the plaintiff’s past loss of income (after taking into account earnings of $75,419) as $90,836.  For the purposes of calculating interest, I have deducted $56,153 being a total of the gross weekly benefit ($17,602.53) and disability settlement ($41,361.00) from the Workers’ Compensation Board less tax ($2,810).

I have allowed interest at a rate of 6% for 9 years on this sum.

Future Loss of Earning Capacity

The plaintiff is now 31 years of age.  I accept a present earning capacity, but for the accident, of $447.52.  The plaintiff submits that his present earning capacity is $87.52 per week.  The defendants submit that there is a 60% loss of earning capacity.  In my view the plaintiff has a residual earning capacity to the order of $100 per week.  I also take the view that it is necessary to discount the plaintiff’s claim having regard to ordinary vicissitudes of life and contingencies eg. The hazardous and arduous nature of the plaintiff’s work, periods of economic downturn in rural industries.  The discount I apply is 15%.

The above sum is derived by use of the multiplier of 810 to give a 5% discount over 29 years:-

810 x $350 =	$283,500
less 15%	$ 42,525
$ 240,975

Past Gratuitous Care

This matter is difficult to assess.  The plaintiff and the defendants submit that $146,720  and $20,000 respectively, should be allowed.  I have calculated the past care as follows:-

·          10.9.88 to 9.3.89 - care by mother whilst plaintiff hospitalised.  21 hours per week for 26 weeks at $8.50 per hour	$4,641
·          9.3.89 to 30.4.89 - continuing care by mother 8 weeks x 28 hrs per week x $9 hour.	$2,016
·          1.5.89 to 31.12.89 - care by wife 14 hours per week x 276 weeks x $9.50 per hour.	$4,522
·          1.1.90 to 30.4.95 - care by wife 7 hours x 276 x $9.50 per hour.	$18,354
·          1.5.95 to present - care by wife 7 hours per week x 88 weeks x $10 per hour	$6,160
$35,693

Future Gratuitous Care

I have allowed for 2 hours per week at $15 per hour

(52 weeks per year) for 40 years.  I have applied a  $27,540

5% discount over 40 years using a multiplier of 918.

Special Damages

Special damages were agreed.

Future Medical Expenses

I have accepted the plaintiff’s calculations and applied the discount referred to in those calculations.  

Superannuation

I have accepted the plaintiff’s calculations of past superannuation.

Future superanuation calculated on the same basis as shown in the plaintiff’s schedules but adopting $240,975 for future economic loss is $18,073.

Before giving judgment in the matter I invite the parties to check and, if necessary, comment on the above calculations.