Bryan v Parks and Wildlife Commission of the NT

[2005] NTSC 1

[Back to Main List] [Back to NTSC 2005 List] Bryan v Parks & Wildlife Commission of the NT [2005] NTSC 1

PARTIES: IVENE DENISE BRYAN

v

PARKS & WILDLIFE COMMISSION OF THE NORTHERN TERRITORY

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: SC26 of 1997 (9711685)

DELIVERED: 6 January 2005

HEARING DATES: 3-14 November 2003, 6-8 April 2004, 13-16 April 2004, 19 23 April 2004, 27 -30 April 2004, 4 May 2004, 6-7 May 2004, 11-12 May 2004, 10 August 2004, 6-13 September 2004

JUDGMENT OF: THOMAS J

CATCHWORDS:

REPRESENTATION:

Counsel:
Plaintiff: R Meldrum QC with S Gearin
Defendant: J Reeves QC with B O’Loughlin

Solicitors:
Plaintiff: Messrs Morgan Buckley
Defendant: Solicitor for the Northern Territory

Judgment category classification: C
Judgment ID Number: tho200412
Number of pages: 205

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Bryan v Parks & Wildlife Commission of the NT [2005] NTSC 1
No. SC26/97 (9711685)

BETWEEN:

IVENE DENISE BRYAN
Plaintiff

AND:

PARKS & WILDLIFE COMMISSION OF THE NORTHERN TERRITORY
Defendant

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 6 January 2005)

[1] This is an action by the plaintiff, Mrs Ivene Denise Bryan, against the defendant for damages as a consequence of injuries the plaintiff claims she suffered after being head-butted by a ram to the base of her back. Mrs Bryan claims the ram attack took place at the front door to her office. This was within an area controlled and managed by the defendant. It is within a compound known as the Arid Zone Research Centre, also referred to as the Institute. It is agreed between the parties that there was no employer/employee relationship between them. The plaintiff’s claim is in contract. Paragraphs 6, 7 and 8 of the plaintiff’s Third Further Amended Statement of Claim states as follows:
“6. On Friday 17 June 1994, the Plaintiff attended at the Institute in order to carry out her work under the said contract.
7. On the date and at the place aforesaid, the Plaintiff was bending over at or near the front door of the shed utilized by her as a work area at the Institute.
8. Whilst the Plaintiff was bent over as aforesaid, the ram butted her from behind at the base of the back, throwing her upwards and forward a distance of approximately 2½ metres.”
[2] The plaintiff claims that this incident occurred on the morning of Friday 17 June 1994, shortly after the plaintiff arrived at her place of work.
The Ram Attack:
[3] A plan of the compound known as the Arid Zone Research Institute is Exhibit P6.
[4] On the day of the incident, 17 June 1994, it was wintertime in Alice Springs. The grass was quite run-down and consisted of clumps of dried bristly grass. Mrs Bryan arrived at work at 9.30am. She climbed the fence, that has also been referred to as a gate, into her workplace area. Her office was approximately 24 metres from this fence-line. She opened the front door of her office, left her keys and other items on the sink inside, and returned to her vehicle. She carried two bags of shredded paper back through the fence, climbing over it, proceeding again to the front door of her office.
[5] Mrs Bryan placed the bags on the ground so she could open the front door. She opened the door and picked up the two bags. She then felt something hit her at the base of her back, throwing her forward and up over the cement doorstep and into the office. Mrs Bryan was thrown forward approximately 2.5 metres and landed face-down. She immediately felt severe pain in her back, groin and down both legs. She heard a loud crack at the time of impact. She also lost control of her bladder.
[6] Mrs Bryan remained still. She was stunned and frightened to move. She stayed in that position for a couple of minutes before she rolled over slowly and noticed the ram standing over her. Mrs Bryan did not move for fear that the ram would attack her again. She called out for help for 30 to 40 minutes, but no-one came. The ram eventually moved back towards the other sheep. The other sheep, being a ewe and a lamb, were under trees near dripper points in Area B.
[7] Mrs Bryan’s main concern was her back pain, which was very severe. She could not get up, and dragged herself to a nearby chair and pulled herself into a standing position. The pain was excruciating.
[8] Mrs Bryan then threw some kangaroo pellets on the ground, to distract the sheep so she could go to her vehicle. She had to exit via the gate as she was not able to bend to go over the fence. She threw the pellets into the next yard and the sheep followed them such that she was able to lock them in. The gate, through which the sheep were put back into Area A, was on the northern boundary of Area A near the western boundary of Area A.
[9] Mrs Bryan got into her vehicle and drove over to the main building, known as the “Tom Hare Building”, where she saw two rangers. She told them that she had been attacked by the ram, and one of them went for her husband, Ross Bryan. Mr Bryan put Mrs Bryan into his vehicle, he took her home and contacted the Bath Medical Centre. She saw Dr Scott, who had her transferred to the Alice Springs Hospital where she was examined by Dr Winterflood.
[10] There were no other witnesses to the attack by the ram. I found Mrs Bryan to be a credible witness. I accept her account of how she was attacked by the ram and the effect of the attack upon her. I have summarised her account as set out above.
The Arid Zone Research Institute:
[11] In her Third Further Amended Statement of Claim, the plaintiff asserts that she was contracted by the defendant to carry out the maintenance and feeding of captive wallabies and bandicoots (also known as mala and bilby) at the Arid Zone Research Institute in Alice Springs. The Arid Zone Research Institute is located on the south Stuart Highway near Alice Springs in the Northern Territory (also referred to as “the Institute”).
[12] Mrs Bryan’s work at the Institute involved the feeding and care of mala and bilbies, two endangered species. These animals, held captive for a breeding program, were housed near an area within the Institute known as the “old nursery”. The old nursery was essentially closed down. The only operational area in that part of the compound was the area in the north-eastern corner, used for the mala and bilby project.
[13] A plan of the compound known as the Arid Zone Research Institute was tendered (Exhibit P6). There is also a copy of the plan of the compound, being Annexure IDB8, to the statement of Mrs Bryan (Exhibit P1). A further plan of the compound is annexed to statement of Mr Geoff McKenzie (Exhibit P19). Another plan of the area was tendered during the evidence of Mr Philip David Wurst being Exhibits P47, D48 and P49. A further annotated plan was tendered Exhibit P79. I have relied on the compass points on Exhibit P6 rather than the compass points on Exhibits D48 and P49. A series of photos were tendered (Exhibit P3). Some of these photos show views of the compound or parts of it at the Institute. Photograph 14 is an aerial photograph taken of the compound facing generally in an easterly direction. I accept the evidence given by Mrs Bryan that photograph 14 is the best photograph of the compound area that has been tendered.
[14] On the day of the accident, in order to travel to the mala and bilby pens, Mrs Bryan drove her Suzuki into the Institute grounds through the main gate which has also been referred to as the western gate. She turned left and travelled past a brick building as well as shade houses, nursery beds an office and storage buildings. At the end of this road Mrs Bryan turned right, travelling past another nursery bed that contained two glasshouses and a race made for the movement of calves. A gate then obstructed her journey. Mrs Bryan gave evidence that her work area was approximately 24 metres on the other side of this gate.
[15] Beyond the gate, which consisted of a moveable section of fence, were the animal enclosures. This north east section of the compound also held Mrs Bryan’s office and some other enclosures that had not yet been completed. During the hearing of this matter, this area was referred to as Area B. This is the area in which the ram attack occurred. It is shown on the plan prepared by Mr McKenzie (Exhibit P19) as Area D. In these reasons for judgment I have referred to it as Area B.
[16] The southern boundary of Area B was a fence constructed of nursery shelving and wire, attached to star pickets and poles. This fence separated Area B from Area A. The eastern and northern fences were made from cyclone fencing with barbed wire along the top. It was Mrs Bryan’s evidence that some weeks before the date of the accident Area B gained a gate on the western boundary. This gate is marked “C” on the plan prepared by Mr McKenzie (Exhibit P19). This gate was built to prevent the ram and other sheep wandering out into other areas of the compound and out through the front gates up near the nursery area. On his plan, Exhibit P19, Mr McKenzie has referred to the area where the sheep were pastured as Area A. The fences he built are marked “B”. The additional fence he built which could be moved is marked “C”. The area where Mrs Bryan was attacked he has marked “D”. There are also gates shown between Area A and Area D on the plan in Exhibit P19.
[17] Directly to the south of the mala and bilby enclosures, was a fenced off area. During this proceeding this area was referred to as Area A. This fenced area enclosed some nursery beds, several water tanks, a bore and a shade house. The sheep were originally depastured in this area.
[18] The fence in Area A on the southern and eastern side, was constructed from cyclone fencing topped with barbed wire. This type of fence stopped where Area A abutted the boundary of the mala and bilby pens. There was an electrified fence on the western boundary of the mala compounds. The northern boundary fence of Area A was made from shelving units that were previously used to store potted plants. The shelving was made from iron and was attached to star pickets and poles with wire and twine. The western boundary of Area A was also of a temporary nature, made of star pickets and wire. The fence, built by Mr McKenzie, excluded the lucerne patch from Area A as the lucerne was for the mala. Mrs Bryan’s evidence was that she observed the sheep pushing through holes in the northern section of this fence to gain access from Area A to Area B. Mr McKenzie gave evidence that there was a problem with the ram in that it was infiltrating the fence and getting out. He stated he did ongoing work to the fence. He stated he tried to strengthen the areas of the fence where the sheep were getting out. He used mesh nursery basket stands, wire or bailing twine. It is Mr McKenzie’s evidence that in the six months prior to June 1994, he was in the mala and bilby area a couple of times a week or more.
[19] Mr Wurst was employed as both a research scientist and then as a wildlife officer by the defendant. He was based at the Arid Zone Research Centre between 1992 and June 1998. Mr Wurst referred to a plan of the compound which was tendered Exhibit D48. He made certain markings on this plan which was also tendered Exhibit P49. On these plans the compass points are marked differently to the other plans to which I have referred. On the plan referred to by Mr Wurst in Exhibits D48 and P49, the compass point marked north are marked east on the other plans. When shown photograph 14 in Exhibit P3, Mr Wurst described this as facing in a southerly direction. Without making a finding as to which are the correct compass points, I have relied on the compass points in the plans referred to by Mrs Bryan (Annexure IDB8 to Exhibit P1), the plan tendered as Exhibit P6, the annotated plan Exhibit P79 and the evidence of Mr Bryan, for the purpose of recording where facilities within the compound are in relation to the compass points. Mr Wurst gave evidence that he had, on at least two occasions, seen the sheep out of the area where they were meant to be held secure, being Area A. Mr Wurst described the fencing around the hatched area, being Area A, as makeshift and not secure.
The Contract of Employment:
[20] It is asserted by the plaintiff in par 3 of her Third Further Amended Statement of Claim and admitted by the defendant, that the particulars of contract are as follows:
[21] By written quotation number QS/2/PC/93 and dated 9 August 1993, the plaintiff tendered for the (provision of) maintenance of and feeding of captive wallabies and bandicoots at an hourly rate of $13.50 per hour, 15 hours per week, for a period of 52 weeks. The plaintiff’s quotation was accepted by the defendant, by the defendant’s contract superintendent’s letter dated 23 August 1993. The contract was a “Schedule of Rates” contract for a period of 52 weeks commencing 21 August 1993 and expiring 20 August 1994.
[22] The defendant asserts that the terms of the contract were wholly in writing and that the written contract comprised the following:
1. The schedule for quotation No. QS/2/PC/93.
2. The Conditions of Quotation and Conditions of Contract.
3. The quotation for works and services signed by the plaintiff on 9 August 1993.
4. The letter dated 23 August 1993 from the defendant to the plaintiff accepting the plaintiff’s tender.
[23] The defendant relies upon the written contract for its full terms, meaning and effect.
[24] The plaintiff joins issue with the defendant and says that the terms of the contract were partly in writing and partly implied.
[25] The plaintiff’s action against the defendant is in contract and relies upon an implied term in the contract between the plaintiff and the defendant. Specifically, the plaintiff has pleaded, in par 4 of the Third Further Amended Statement of Claim, that it is an implied term of the contract between the plaintiff and the defendant that the defendant should –
1. take all reasonable precautions for the safety of the plaintiff while she was engaged at the Institute in carrying out the work contracted for by her;
2. take all reasonable precautions for the safety of the plaintiff while she was a visitor at the Institute for any purpose connected with the carrying out of the work contracted for by her;
3. provide and maintain a safe working environment at the Institute for the plaintiff to carry out the work contracted for by her;
4. not expose the plaintiff to any risk of damage or injury at the Institute of which the defendant knew or ought to have known.
[26] The defendant denies that there were implied terms of the contract between it and the plaintiff, as alleged in par 4 of the Third Further Amended Statement of Claim, or at all.
[27] In the alternative it is the defendant’s position that if there was an implied term of the contract between it and the plaintiff as alleged by the plaintiff in par 4 of the Third Further Amended Statement of Claim, then the contract contained an express term that the plaintiff would be liable to indemnify the defendant against any legal liability, loss, claim or proceeding for personal injury to any person arising from the carrying out of the works other than that which may arise from the negligence, omission or default of the defendant, its servants or agents.
[28] In addition the defendant seeks an indemnity from the plaintiff for so much of any judgment the plaintiff may obtain against the defendant in these proceedings that arises from the negligence, omission or default of the plaintiff.
[29] Mr Reeves QC, on behalf of the defendant, submits that the plaintiff is attempting to imply the proposed term into the contract as a device to import what is really an action in tort into a contractual setting to avoid the correlated responsibility the plaintiff would have in tort for her contributing negligence or, as her counsel put it, because she has greater rights in contract than in tort.
[30] Counsel for the plaintiff, Mr Meldrum QC, relies on the High Court decision of Astley v Austrust Ltd (1999) 197 CLR 1 as authority for the proposition that the plaintiff had a choice whether to pursue her claim in contract or in tort. I do not think it is as simple as that. Astley v Austrust Ltd (supra) involved an action by a public trustee company against their solicitors. The Court held that an implied term of reasonable care arises by operation of law in contract for professional services and an action may be brought for professional negligence in both contract and tort. That is not the situation in the case before this Court.
[31] I agree with Mr Reeves QC, counsel for the defendant, that the plaintiff must first establish an implied term in the contract as set out in par 4 of the third further Amended Statement of Claim before the plaintiff can base an action in contract.
[32] The relevant test is that set out in the decision of BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 283:
“… for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that ‘it goes without saying’; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.”
See also Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 347. The implied term must meet all of the criteria set out above.
[33] Mr Reeves QC, counsel for the defendant, has made extensive submissions as to why the proposed implied term does not meet the criteria as set out in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (supra). These have been usefully summarised in his written submissions titled Defendant’s Outline on Liability 2.4.1 – 2.4.4 as follows:
“1) This was not a negotiated agreement but a government tender. It is a written agreement that deals extensively with the rights and obligations of the parties. It operated efficaciously for 3.5 years on the same terms. There is no established need to imply any term into this contract to give business efficacy to the agreement.
2) To impose any of the terms proposed by the plaintiff would impose liability on the defendant for a part of the risk of executing the works in direct contradiction of Clause 1 of the contract that places the whole of the risk of executing the works on the plaintiff.
3) It would not be reasonable or equitable to imply a term into this contract with the ultimate effect that the plaintiff can sue in contract for the defendant’s alleged negligence but not suffer any reduction for her own contributory negligence.
4) It is not so obvious that it goes without saying nor necessary to give business efficacy to the contract to imply a term into the contract which is equivalent to the duty of care in tort because the plaintiff is already covered under tort law.”
[34] It is not the role of the court to find an implied term in a contract to achieve what it thinks is fair and reasonable between the parties in the circumstances (Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (supra) at 406 - 407). Counsel for the defendant submits that it would be contrary to principle for the Court to interfere in the parties’ contractual relations to impose on the defendant a contractual obligation of a kind, or to an extent, that the defendant would not have imposed upon it in tort outside the contractual relationship.
[35] Counsel for the defendant contends that the plaintiff has failed to meet the relevant test to have the proposed implied term implied into this contract because:
• the contract is a standard form tendered contract, and
• the contract is in writing and deals extensively with the situation the parties contracted for.
[36] In the course of his submissions Mr Meldrum QC, on behalf of the plaintiff, carried out a very detailed analysis of the written contract (Exhibit P60).

[37] The purpose of conducting this analysis was to demonstrate that the contract does not cover the situation it was intended to, and it is therefore necessary to fill the gap by including the proposed implied term into the contract. It is the submission of Mr Meldrum QC on behalf of the plaintiff that the Conditions of Contract, as set out on the back of the document titled Quotation for Works and Services, are not applicable because the parties had so inelegantly drafted what they were agreeing to that it is obvious that it was not encompassing the terms of their agreement.
[38] Mr Meldrum QC submits that the contract was substantially a building contract. He asserts that the clauses were very specific to performing building work and a builder under a building contract commonly assumes the responsibility for delivering the built product as required by the plans, specifications, permits etc.
[39] I shall go to some examples of clauses of the written contract which Mr Meldrum QC argues are totally inapplicable to the real agreement between the plaintiff and the defendant. The front page of the document “Quotation for Works and Services” states as follows:
“Contract – Clause 9 – commence works from date of notice of acceptance
Contract – Clause 9 – item for completion Fifty-two (52) weeks from date of order.”
[40] Clause 9 of the Conditions of Contract then sets out the action that can be taken by the Director of the Conservation Commission if there is a failure to complete the works within a specified time.
[41] I agree that this clause is not appropriate to an agreement which provides, as this quotation does, that Mrs Bryan provide maintenance of captive wallabies and bandicoots for 15 hours per week at $13.50 per hour.
[42] It was not in fact a contract whereby Mrs Bryan had 52 weeks to complete the contract, or certain sanctions such as removal of her material from the site would be enforced. The maintenance of the mala and bilby required her regular attendance on the site. Clause 9 is appropriate to a building contract but would appear to have no application to the services Mrs Bryan was to provide.
[43] The contract documents are all included in Exhibit P60. These documents are as follows:
• Document headed Minute Paper. Subject: period contract for maintenance of captive wallabies and bandicoots. It is dated 16/7/93.
• Copy of advertisement involving tenders which appeared in the “Advocate” on 27/7/93 and 3/8/93. This called for tenders for a period contract – maintenance of captive wallabies and bandicoots.
• Quotation for Works and Services No. QS/2/PC/93 signed by Mrs Bryan and dated 9 August 1993. Annexed is a Schedule for Quotation No. QS/2/PC/93 with copy of the Conditions of Quotation.
• Letter dated 23 August 1993 headed Notice of Acceptance Project: Maintenance of wallabies and bandicoots contract No. QS/2/PC/93 together with a document titled Order dated 24 August 1993.
• Document titled Tender Recommendation – Project: Maintenance of wallabies and bandicoots. Tender No. QS/2/PC/93 dated 19 August 1993 and recommending that the tender from Denise Bryan be accepted. It also states “Denise has been carrying out the duties satisfactorily since 20 June 1991”.
• Original of the Quotation for Works and Services with the Conditions of Quotation and Conditions of Contract on the back of this document.
[44] The quotation for Works and Services with the Conditions of Quotation and Conditions of Contract constitute the relevant contract in writing signed by Mrs Bryan. Clause 1 of the Conditions of Contract reads as follows:
“1. The contractor shall take upon himself the whole risk of executing the works in accordance with these conditions, the plans and/or specification and shall be solely liable for loss or damage to the works from any cause whatsoever (except loss or damage caused by the negligence, omission or default of the Conservation Commission of the Northern Territory, its servants or agents) until the Director of the Conservation Commission has certified that the whole of the works have been satisfactorily completed by the contractor.”
[45] This condition is not applicable to the Schedule for Quotation in which Mrs Bryan has contracted over a 12 month period to supply her labour for 15 hours a week to the maintenance of captive wallabies and bandicoots. The condition would be applicable in a building contract but not to the scope of work that Mrs Bryan was contracted to perform, which was maintenance of captive wallabies and bandicoots. The risk referred to in this condition is that the works will not be in accordance with the conditions, plans and specifications; it is not the risk to her of executing the works.
[46] Clause 2 of the Conditions of Contract, reads as follows:
“2. The contractor shall observe and comply with the provisions of all relevant acts, ordinances, regulations, by-laws, orders and rules and all requirements of any authority as shall be in force in the place where the works are to be executed and as may relate to the works to be executed. However, the contractor is not required to submit building plans to local or other Authorities for approval. Unless otherwise specified the contractor is responsible for connection of all water, drainage, sewerage, gas and electricity services and he shall apply for relevant permits and pay all associated fees and/or charges which are levied by the appropriate Authority.”
The first sentence of this paragraph may apply as submitted by Mr Reeves QC.
[47] I agree with the submission made by Mr Meldrum QC that the remainder of Condition 2 does not apply and that it is clearly a condition applicable solely in a building contract.
[48] Clause 3 of the Conditions of Contract, reads as follows:
“3. The contractor shall be liable for and keep the Conservation Commission of the Northern Territory indemnified against any legal liability, loss, claim or proceedings for personal injury to or death of any person or for injury or damage to property arising from the carrying out of the works, other than that which may arise from the negligence, omission or default of the Conservation Commission, its servants or agents.”
[49] I accept the argument advanced for the plaintiff that Clause 3 negates the operation of indemnity.
[50] Clauses 5 and 6 read as follows:
“5. The contractor shall indemnify the Conservation Commission at all times against any compensation paid or any action, claim, demand or expense arising from or incurred by reason of the existence of any patent, design, trade mark or copyright or other protected right in respect of any machine, plan, work material or thing, system or method or using, fixing, working or arrangement, used or fixed or supplied by the contractor in connection with the carrying out of this contract.
6. All materials and workmanship shall be of the respective kinds described in the specifications and/or drawings or if not fully described shall be in the accordance with the recognised standards. If the Director of Conservation Commission is of the opinion that any materials or work, whether fixed or not, are not satisfactory or if he detects any work during the defects liability period, he may direct removal or correction at the contractor’s own expense.”
[51] I agree with the submission made by Mr Meldrum QC that these clauses have no application to the contract between Mrs Bryan and the Conservation Commission but would appear to be standard clauses in a building contract.
[52] Similarly, Clauses 14 and 15 of the contract, which I do not think necessary to set out, would appear to be more relevant to a building contract than the contract between the plaintiff and the defendant.
[53] I agree with the general submissions made by Mr Meldrum QC, that the written contract between the plaintiff and the defendant is not complete on the face of the document. It is on the face of it a building contract, and that is not applicable to Mrs Bryan. The contract does not specify the standard of work which had to be applied or the right of the defendant to dismiss Mrs Bryan. Under Clause 1, read with Clause 3, Mrs Bryan’s liability is for damage to the work she is doing, not damage to herself as the worker, where the personal injury to her has arisen out of the negligence, omission or default of the Conservation Commission its servants or agents while she was carrying out her work.
[54] I agree that the written document headed “Quotation for Works and Services” read with the “Conditions of Quotation” and “Conditions of Contract” does not express what was the real contract between the parties.
[55] It would be necessary to imply the standard of work, to imply a right of dismissal and to imply that the 15 hours a week had to be done during normal business hours.
[56] With respect to the contract, I accept the submission made by Mr Reeves QC as to the approach to be taken by a court to the construction of a contract.
• the contract was made in good faith with the object of mutual benefit by due performance.
• to be given their natural meaning and to give them their most ample operation.
• without allowing any infelicities and mistakes to give them a narrow or unreal meaning (Kearns v Hill (1990) 21 NSWLR 107 at 109).
• in the absence of fraud, misrepresentation or special circumstances a person is bound by a contract he/she has signed (Wilton v Farnworth (1948) 76 CLR 646 at 649).
[57] Mr Reeves QC referred to the contract being a formal written contract complete on its face following a formal tender process. Mr Reeves QC argued it was highly significant that the plaintiff took the benefit of the contract for years before and after the ram incident. He maintains the plaintiff is bound by the contract she signed and she cannot claim that it is inapplicable or for any other reason imply a term into the vacuum that is allegedly created.
[58] I agree with the submission made by Mr Meldrum QC that the Conditions of Contract are largely applicable to a building contract and are inapplicable or irrelevant to the actual contract between the plaintiff and the defendant. It is agreed on behalf of the defendant that reasonable access to her place of work would be an implied term to give business efficacy to the contract.
[59] I consider that there was an implied term of the contract between the plaintiff and the defendant as set out in par 4 of the Third Further Amended Statement of Claim. I consider the plaintiff has substantiated the five criteria necessary before a term can be implied into a contract (BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (supra)).
[60] Such implied term is (1) reasonable and equitable, (2) is necessary to give business efficacy to the contract, (3) it is so obvious that “it goes without saying”, (4) it is capable of clear expression, and (5) it does not contradict any express term of the contract.
Liability of the Defendant as an Occupier:
[61] In par 8A.2 of the Second Further Amended Defence the defendant:
“… admits that it controlled and managed the Tom Hare Building, the part of the DPIF building occupied by the Wildlife Research Unit and the compound at the Institute which included the land where the sheep were depastured”.
[62] Mr Johnson was, as at 17 June 1994, Regional Director of the Parks and Wildlife Commission of the Northern Territory. Mr Johnson made a statement dated 6 April 2004 (Exhibit D66). He stated that he had overall responsibility and accountability for the management of the Alice Springs region, including staff management and for making strategic decisions in relation to regional issues. He had the ability to defer some of his responsibility of day to day management of staffing resources to Mr Michael Fleming in respect of the unit known as Wildlife Research South.
[63] Mr Johnson further stated that as at 17 June 1994 he had no knowledge of the presence of a ram at the Arid Zone Research Institute in Alice Springs.
[64] Mr Johnson gave evidence that in 1979 the enclosures were converted from housing dingo, to housing mala and bilby. This conversion was done during the time Mr Johnson was responsible for the mala and bilby research project. From the time they took over the enclosure the defendant was also responsible for the nursery. After the mid 1980’s, the nursery became overgrown. However, the defendant continued to be responsible for the nursery which became a problem to manage. From the evidence of Mr Johnson the problem was that the buffel grass would grow after rain and would harbour rabbits and snakes which caused a difficulty in the management of the mala and bilby in the adjoining pens. Mrs Bryan also gave evidence that snakes would gather in the long grass and be a threat to the mala and bilby.
[65] On Mr Johnson’s evidence, there were a number of ways the defendant contained this buffel grass. This included mowing by contractors. Mr McKenzie had also mowed the buffel grass. Prior to 1994, sheep were placed there to graze the area. Mr Johnson gave evidence it was within the authority of the body who worked at the Arid Zone Research Institute, being approximately 80 persons, to decide how the grass would be contained. Mr McKenzie was appointed to the Safety Committee at the same meeting at which it was decided calves would be used to contain the buffel grass. Mr McKenzie, as the Safety Committee member, was responsible for alerting the defendant to fulfilment of its safety policy which was to ensure the safety of visitors to the Commission properties. Mr Johnson stated (tp 1537) because the use of animals to control the grass area was within the parameters of expected control, a decision at the meeting to do it did not require consultation with, or authority from, him.
[66] Mr Johnson gave further evidence (tp 1537) that had he known that a ram was present where employees, contractors and visitors might be, and that the fencing was not enclosing it, he would have been concerned because it had the potential to harm people in the vicinity who were not watching it closely. It is Mr Johnson’s evidence that it was preferable the ram be behind a stock proof fence. Mr Johnson was aware of the potential danger of a ram that was not properly contained even though he may not have been aware of the actual presence of this ram. On 18 March 1994, there was a meeting of the Wildlife Division at which Mr D. Langford, Mr M. Fleming and Mr G. McKenzie were amongst the 26 persons present. There was a decision made that “calves are to be employed to keep the grass down in the nursery”. Minutes of this meeting held on 18 March 1994 is Exhibit P72. Mrs Bryan was not present and was not invited to be present at this meeting. Mr Johnson stated he expected that any such calves would be kept behind the stock proof fence. He said you would want to separate them from the public whether the stock were calves or sheep. Mr Johnson gave evidence (tp 1551) that the use of sheep to keep down the grass would be a reasonable management option.
[67] I agree with the submission made by Mr Meldrum QC that on the evidence Mr McKenzie did not need any further authority than the Resolution minuted at the meeting on 18 March 1994 to change from calves to sheep. It was not necessary for Mr McKenzie to seek such specific authority from anyone else to change from calves to sheep.
[68] Mr Johnson gave evidence (tp 1555-7) that he would not have expected Mr McKenzie to report to him that the ram was escaping. He would have expected Mr McKenzie would have reported the matter to the Safety Committee if he had perceived the ram as dangerous. At tp 1157 Mr Johnson agreed that if he had seen the ram outside the fence, his concern would not have been allayed if he were told the ram was quiet.
[69] Mr Johnson referred in his evidence to the fact that there were veterinary officers employed by DPIF at Arid Zone Research Institute in 1994 who were available to talk to the defendant about animals and to give advice about the potential danger of rams.
[70] Counsel for the defendant has submitted that the only duty of care that the defendant owed to the plaintiff was that owed by an occupier to an entrant. That duty, which has been brought within the general law in relation to negligence, requires the defendant to take reasonable care to avoid a foreseeable risk of injury to the plaintiff as a lawful entrant on the old nursery site (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 (or 69 ALR 615 or 61 ALJR 180).
[71] I find that in addition to the duty of care the defendant owed to the plaintiff as an occupier to an entrant, there was an implied term in the contract between the defendant and the plaintiff as pleaded in par 4 of the Third Further Amended Statement of Claim. The implied term in the contract cannot be more onerous upon the defendant than its obligation in tort.
Was the Risk Reasonably Foreseeable?
[72] The relevant question is whether the risk of this ram head-butting the plaintiff was reasonably foreseeable. That is assessed by reference to what a reasonable person in the position of the defendant would do by way of response to this risk. The question is whether reasonable members of the community in the defendant’s position would think the risk sufficiently great to require preventative action.
[73] The issue of reasonable foreseeability arose in the High Court decision in Tame v New South Wales (2002) 211 CLR 317 McHugh J at pars 101-102:
“… I think that the time has come when this Court should retrace its steps so that the law of negligence accords with what people really do, or can be expected to do, in real life situations. Negligence law will fall – perhaps it already has fallen – into public disrepute if it produces results that ordinary members of the public regard as unreasonable. Lord Reid himself once said (Cartledge v E Joplin & Sons Ltd [1963] AC 758 at 772) ‘[t]he common law ought never to produce a wholly unreasonable result’. And probably only some plaintiffs and their lawyers would now assert that the law of negligence in its present state does not produce unreasonable results.
So far as possible, the issue of reasonable foreseeability of risk in breach of duty situations should no longer be determined in isolation from the issue of reasonable preventability and the ultimate issue of what reasonable care requires. Indeed at the breach stage, it is better to avoid the question of reasonable foreseeability. Instead, courts should see their task as that of deciding whether the defendant knew or ought to have recognised that he or she had created an unreasonable risk of harm to others. Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant’s position would think the risk sufficiently great to require preventative action. This is a matter for judgment after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge.”
See also Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, Jaensch v Coffey (1984) 155 CLR 549.
[74] I would have thought it a matter of general knowledge, and certainly a matter of which I could take judicial notice, that a ram weighing 70-100 kilograms, being a male animal of significant size and weight, could pose a potential danger to people with whom it came near. There is in addition evidence to support this proposition. Mr Johnson, the regional director, gave evidence to the effect that he would be concerned if the ram were not contained behind a stock proof fence. It was Mr Johnson’s evidence that a ram could be aggressive and you had to be watchful. Mr Williams who was the senior veterinarian at the shared facility, knew of the ram’s potential danger and could have given this advice had he been consulted. The evidence of Dr Plant also supports this finding.

[75] Dr Plant made a statement (Exhibit P18) that he is a veterinary consultant (sheep health and production). He graduated with a degree in Veterinary Science in 1962. In his professional career he has had extensive experience in the area of sheep health and production. He is recognised nationally and internationally as a specialist in this field. Throughout his professional career, Dr Plant has been involved in handling and examination of rams of different breeds and ages in a range of situations.
[76] Dr Plant gave evidence that the fence, as depicted in photograph 1 of Exhibit P3, could not be considered sheep proof at all. The sheep would be able to push their way under the fence. Once they knew they could go through they would continue to do so.
[77] Dr Plant prepared a report which is included in Exhibit P18 which sets out the following conclusions based on the information provided to him.
• “The incident would not have occurred if the sheep involved were only ewes, lambs or wethers.
• Rams in any enclosed area should be treated with caution, unless they are being handled on a regular basis.
• The fencing could not be considered sheep proof and would have contributed to the presence of the ram in the enclosure near the work place on the day of the incident.
• Rams that are not handled on a regular basis can show aggressive behaviour, which may include charging people.
• The likelihood of a charging incident is much higher in a smaller yard or pen.
• Any change in normal procedures could have contributed to the behaviour of the ram.”
[78] Dr Plant gave evidence that if you are in a yard with rams, they will charge without necessarily being cornered. Under cross examination, Dr Plant gave evidence that he always tells his students, when you have got rams in yards or confined areas you treat them with respect. He agreed the area where the sheep attack took place was not a yard it was an enclosure. (tp 459) An area of approximately 1000 sq metres would be a confined area, especially if it was an irregular shaped block, as this one was.
[79] Mr Fleming, the principal wildlife research officer at Arid Zone Research Institute, stated that one of the purposes of the fence was so that sheep would not mingle with people and vehicles.
[80] Mr Philip David Wurst, who was a research scientist employed at Arid Zone Research Institute, gave evidence he was aware from his own knowledge of the potential which rams had to charge or attack people.
[81] Mr Lundie-Jenkins, an employee at the Wildlife Station at Arid Zone Research Institute, gave evidence that his observations of this ram were that it was not aggressive, nevertheless he said he tended to be cautious of rams, particularly in a confined space. Mr Lundie-Jenkins made a statement dated 29 April 2003 (Exhibit P52). He stated that a fence was erected around the area where the sheep grazed. This was to contain the sheep. He confirmed the fence was as outlined on the plan included in Exhibit P19. This was the plan drawn by Mr McKenzie. Mr Lundie-Jenkins stated that this fence was later added to by Mr McKenzie by the erection of a gate on the western boundary of Area B (shown on Exhibit P19 as Area D) that extended as far as the northern boundary of the compound. Further in his statement, he said he understood all the sheep were pets and that none of them had a violent disposition. He said the ram and sheep were quite friendly and amenable to being touched. He further stated that he knew that one needed to be cautious in the presence of a ram as they had the potential to attack a person.
[82] Mr McKenzie, who was employed as a technical officer of the Institute, said he was cautious of a ram in a confined space. Mr Langford, who was a senior technical officer at the Institute, gave evidence that he was concerned a ram be behind an enclosure.
[83] I find that it was reasonably foreseeable that a ram could constitute a risk to persons and that such risk was sufficiently great to require preventative action on the part of the defendant. The risk involved was that a ram could head-butt a person.
The Ram Placed at the Arid Zone Research Institute:
[84] I then turn to examine the evidence concerning this particular ram.
[85] There is evidence that the ram which attacked Mrs Bryan was of a mature age weighing between 70-100 kilos. The ram’s height was approximately 700mm. It had been poled and therefore had no horns. It has a very hard head. Head-butting is a ram’s way of showing aggression. A head-butt from a ram can be a very heavy blow. There is evidence this ram was bottle fed and had been hand-reared prior to its placement at the Arid Zone Research Institute. There is evidence that the available grass for food was diminishing in the area where the ram was supposed to be secured. There is evidence that all sheep will attempt to push through a fence to reach a food supply. There is evidence that in Area B where the ram attack occurred, there were a clump of trees on the northern edge under which was a dripper system and some grass.
[86] Between January 1992 and July 1995, Mr Fleming was the principal Wildlife Research Officer at the Wildlife Research Section of the Conservation Commission of the Northern Territory in Alice Springs located at the Arid Zone Research Institute. He made a statement dated 2 April 2004 being Exhibit P70.
[87] Mr Fleming stated that the area adjacent to the small animal enclosures had been a commercial nursery until 1988. Following the closure of the nursery the maintenance of the adjacent area had been a constant problem for the Wildlife Research Station. Following heavy rains, buffel grass would grow allowing rabbits and snakes to breed there. Sometimes persons were contracted to remove the grass, at other times Geoff McKenzie, a technical officer employed by the Commission, would cut the grass. A ewe and a lamb were first allowed to graze there in 1991 but were removed from the area when the growth of buffel grass was under control.
[88] After heavy rains in March or April 1994, Mr Fleming was approached by Mr McKenzie and Mrs Bryan suggesting that a ewe and a lamb again be introduced to control the buffel grass. It was decided to approach the Department of Primary Industry and Fisheries to find out whether a ewe and lamb were available. Mr McKenzie then erected temporary fencing in the area to form a pen. The first time Mr Fleming was aware that a ram had also been procured was when he was told Mrs Bryan had been attacked by a ram.
[89] Minutes of a meeting held on 18 March 1994, by members of the Wildlife Division is Exhibit P72. The meeting was attended by 26 members including Mr Fleming, Mr Langford, Mr Lundie-Jenkins and Mr McKenzie. These minutes record the following resolutions: “Calves are to be employed to keep the grass down in the nursery”.
[90] In Answers to Interrogatories (Exhibit P50), Mr Johnson the Regional Director South for the defendant, stated that Mr McKenzie an officer of the defendant, gave permission for a ewe and a lamb to be brought to the old nursery area at the Institute to keep grass down. Fencing was constructed to contain the ewe and the lamb and subsequently the fence was strengthened and another gate installed to contain the ram when it arrived at the Institute.
[91] Mr McKenzie prepared a statement dated 6 November 1995 annexed to which is a plan and a further statement (Exhibit P19). In this statement, Mr McKenzie refers to fencing an area. This is the area marked “A” on the plan, the fence itself is marked “B”. Originally calves were to be brought in but it was decided they were too big. Mr Brian Gill, a stock inspector with the Department of Primary Industry and Fisheries, was looking for a ram to breed with a ewe kept by him. Mr Gill placed a ewe in the fenced area and a short time later he placed a lamb with the ewe. About a month later a ram was placed in there. The ram started to create problems by pushing through the fence and gate and running round the nursery. Mr McKenzie strengthened the fences. He constructed a fence across the road marked “C” on the plan as the ram kept breaking the gates.
[92] In giving evidence Mr McKenzie stated that he estimated he had started work on constructing the fence he marked “B” in his plan some six to eight months before the sheep arrived. Once the ram arrived there was a lot of problems with the ram infiltrating the fence. When informed that the ewe and lamb were getting out, Mr McKenzie had walked the fence line to strengthen those areas that had been infiltrated. He did this with wire mesh nursery stands, or nursery baskets. The “C” marked on Mr McKenzie’s plan is a lift and drag type of gate. Photos 4 and 5 show the gate marked “C” on the passenger side of the Suzuki. To open the gate it was necessary to twitch a wire (tp 479) then lift and drag the gate to open it. The purpose of building the gate was to keep the sheep housed in the bottom area of the complex and to stop them going out through the front gates near the nursery offices. The area marked “D” on the plan, attached to Exhibit P19 and prepared by Mr McKenzie, is the area into which the ram had escaped when it attacked Mrs Bryan. It is referred to in other evidence as Area B.
[93] Mr Fleming gave evidence he was the supervisor of the contract between the defendant and Mrs Bryan. He stated he presumed he would have been consulted about putting a ewe and a lamb into the compound to control the buffel grass where the mala cages were attached, but has no recollection of this (tp 1622/3/4). He stated the mala and bilby sheds were close to the northern boundary of a compound which was used in part for safe storage and vehicles overnight. The old nursery area where the grass tended to grow, abutted onto the mala and bilby fence. Within it were three overhead tanks. The propagation shed was at the southern end of where the nursery had been, and reasonably close to the overhead tanks.
[94] Mr Fleming agreed that in 1994 he had not heard anything about sheep escaping and assumed they were successfully confined inside a fence. He agreed that he believed it was desirable they be confined inside a fence for two purposes (1) to eat the buffel grass; (2) so they would not mingle with people and vehicles (tp 1635).
[95] It is Mr Fleming’s evidence that Mr Lundie-Jenkins was in charge of the mala research program. He gave evidence that it was Mr McKenzie’s role to build the fence (tp 1638). Mr Fleming gave evidence that a decision to use calves to keep down the buffel grass could be made at a staff meeting (tp 1644).
[96] Mr Fleming agreed that he knew there were sheep in the old nursery area before 17 June 1994 (tp 1746). He made reference to, though he could not recall which year (tp 1751), different groups of people who were interested in going in to see the bilby.
[97] Mr McKenzie was the technical officer for the research group. When the decision was made to graze sheep for the control of the buffel grass, then Mr McKenzie would have been the person to have built the fence (tp 1751).
[98] A decision had been made at a staff meeting that calves were to be used. Mr Fleming agreed he would expect Mr McKenzie would build the fence without the need to seek Mr Fleming’s permission or permission from anyone else.
[99] In 1994 Mr Johnson was the regional director. At that time there were 80 staff. Mr Johnson reported directly to the Commission, in particular the Director of the Commission (tp 1527). He stated staff meetings did not require his authority to make decisions if they did not involve expenditure of money or policy issues (tp 1532).
[100] The buffel grass made the task of keeping the old nursery area clean and tidy more difficult. On Mr Johnson’s evidence, Mr McKenzie had responsibility for the area (tp 1533). He had to maintain it in a safe condition (tp 1534).
[101] Mr McKenzie, as a member of the Safety Committee, had the responsibility of alerting the Commission of a situation that was a danger. Mr Johnson stated he knew that rams could be aggressive and you had to be watchful. He agreed that an individual ram hand-reared by bottle did not necessarily reduce the potential danger.
[102] Mr Johnson stated that prior to June 1994 he would have had a concern if a ram was not enclosed by a fence in an area frequented by employees, contractors to the Commission and visitors. He would prefer the ram to be behind a stock proof fence because it had the potential to harm people in the vicinity who were not watching it closely (tp 1537).
[103] The decision to use animals to control the grass did not require his authority (tp 1537). He stated that he would have assumed that they were being properly controlled (tp 1551). Tethering could have been used but whatever method he would not expect them to mingle with people.
[104] Mr Johnson stated he would not necessarily expect Mr McKenzie to report to him that the ram was escaping. Had Mr McKenzie perceived the ram was dangerous, Mr Johnson would have expected this would be reported to the Safety Committee. Mr Johnson stated it is a general management principle that you separate animals from people (tp 1557). This extended to, although would be of a lesser concern, with respect to a ram that was reportedly docile, quiet or hand-reared as a pet. It was his opinion the ram should have been kept away from the people who accessed that area. Mr Johnson agreed that consulting the veterinarian employed by Department of Primary Industry and Fisheries and Arid Zone Research Institute was an obvious place to receive advice about the potential danger of rams.
[105] Mr Owen John Williams made a statement dated 29 April 2004 (Exhibit D73) and gave evidence to the Court. It is Mr Williams’ evidence that he is a qualified vet. Throughout 1994 he was the head veterinarian employed at the Arid Zone Research Institute. In his statement he said if he had observed the ram to be quiet and docile and was told by others who knew the ram that it was quiet and docile, he would not have thought it necessary to place it behind a stock proof fence.
[106] Under cross examination (tp 1662) Mr Williams agreed that rams are more likely to be aggressive than ewes. Rams had attacked people. He agreed that a full grown ram of the merino breed would weigh between 70-100kg and even if poled or horned, still has a very hard head. The competition between rams for ewes is conducted by head-butting to any part of the body. His evidence is that sheep can be persistent in trying to get through a fence to graze in another area. They will tend to push out at the bottom of the fence unless it is securely tied down. He agreed if there was a patch of lucerne the sheep would find this more attractive than buffel grass. He agreed that sheep are herd animals. He agreed that if animals have learnt to escape they will persist in that behaviour. He agreed a common way of handling animals that keep escaping through a fence in a close confinement is to put a collar on them with a half tomato stake to prevent them forcing their way through a fence. Mr Williams would have recommended either that option or repairing the fence. He agreed it would be difficult to fix the fence properly with bailing twine or light wire. He agreed that if animals are put out they tend to lose their predictability until they have been retrained. He agreed there was quite a skill in moving around animals, not to block their flight route. Mr Williams agreed even a quiet animal requires a degree of precaution. A ram does have the ability to accelerate from a standing start very quickly. They do have the potential to attack, to kill or cause serious injury. He agreed that as a broad management principle it was desirable that sheep, including a ram, be separated from people. In a confined area they can pose a danger if they do not have a flight path. Mr Williams gave evidence that the reasons for a ram attack on a person could sometimes be because that person is there. It is Mr Williams’ evidence that a hand-reared, bottle fed lamb that grows into a ram loses a natural fear of human beings. They can lose their flight reflex and tend to butt more, or demand attention, more than free ranging animals. He stated he would like to see the animal separated from the work environment. Mr Williams said he would approach this animal as he does any animal and that is with caution. He agreed that the ram should have been separated from people. He gave evidence that when he said in his statement that he would be content, and not think it necessary to have a docile animal placed behind a stock proof fence, this was on the assumption the animal did not escape into an area where people walked. It is his evidence that no matter how quiet the ram is, it should not be permitted to be where people are, who are not necessarily aware of its presence. A ram could present a danger to a person who was aware of its presence but had both hands full carrying items. Mr Williams concluded that there should not be a ram in the work place unless you are specifically there to handle rams.
[107] Mr Wurst was a research scientist and then a wildlife officer employed by the Parks and Wildlife Commission of the Northern Territory between 1992 and June 1998. In 1994 he worked at the Arid Zone Research Institute in camel research.
[108] Mr Wurst had marked on the plan, included in Exhibit P19, the sheds where he stored his material. He attended these sheds between twice a week and twice a month. He states he observed three sheep including one ram in the vicinity of the lucerne patch marked on the plan Exhibit P19. He marked the plan now included in Exhibit P47. This observation was made at least one month before he became aware of the incident involving Mrs Bryan. He states he was aware, from his own knowledge, of the potential which rams had to charge or attack people (Exhibit P47). He observed the sheep near the carports regularly used by employees of the Commission to park vehicles, trailers and other equipment. He stated the fence created an area which did not include the lucerne patch. The fence appeared to be makeshift and not sheep proof. The fenced area he observed in 1994 is depicted in a photograph in Exhibit P3. It appeared that attempts had been made to repair the fence. Mr Wurst saw signs that the ram had broken through the fence. He complained to other staff members about the escaping sheep on occasions when at his workshed he saw sheep roaming round and not in the fenced area. Other staff members parked their cars close to where the sheep roamed. There was also evidence of sheep droppings.
[109] Mr Wurst stated that had the Commission sought to obtain advice about the behaviour of rams, there were two veterinary officers working in an area situated at the Arid Zone Research Institute.
[110] Under cross examination, Mr Wurst explained that what he meant when he referred to a secured area was the area in which the sheep were supposed to be contained. On the plan included in Exhibit P47 the north is where the sheds are at the top of the page. This does not accord with other evidence which puts these sheds on the western boundary of the compound and places the mala and bilby pens in the north east corner of the compound. Under cross examination, Mr Wurst described on one occasion seeing the sheep in amongst the carport area (tp 1221). On another occasion, they appeared to be closer to where he was working in the sheds. They were under the trees on what he described as the eastern boundaries but is shown on the plan (Exhibit P6) as the northern boundary. If the front gate had been left open they could have got out. He stated his knowledge of sheep was gained from working with sheep on a sheep property (tp 1227). He agreed that he did not closely examine the fence around the secure area for the sheep. He did observe bits of fencing wire holding the fence together. The fence was better than having no fence (tp 1235). He agreed he was concerned the sheep could get out the front gate and onto the road (tp 1235).

[111] On Exhibit P49, Mr Wurst marked the route that you would ordinarily take if you were coming from outside the compound down to the office adjacent to the bilby pens. You would enter through the gate on the north west side, travel along the road and then turn right to travel south to the office. Other evidence would have this segment of road travelling east. He marked in yellow highlighter the area where he had seen the sheep out of the secure area. Mr Wurst stated the reasons for his concern when he saw the sheep out of a secured area was because the ram had the potential to be aggressive as well as the fact the sheep could wander off and become lost or injured.
[112] Mr Lundie-Jenkins made a statement (Exhibit P52), that between July 1986 to July 1999, he was engaged at the Wildlife Research Station of the Conservation Commission at the Arid Zone Research Institute.
[113] Mr Lundie-Jenkins attended a meeting at which it was agreed animals be allowed to graze in the area next to the mala and bilby enclosures. When Mr Lundie-Jenkins first saw sheep there were two of them. Approximately one month later he saw a third sheep. One of the three sheep was a ram. A fence was erected by Mr McKenzie around the area where the sheep grazed to contain the sheep. Mr Lundie-Jenkins identified the fenced area on the plan (Exhibit P19). He understood all the sheep were pets and none had a violent disposition. They were friendly and amenable to being touched. Mr Lundie-Jenkins said he knew one needed to be cautious in the presence of a ram as they always had the potential to attack a person.
[114] Mr Lundie-Jenkins gave evidence Mrs Bryan was attacked by a ram some months after the sheep had been introduced to the area. Mr Lundie-Jenkins did not know that prior to the accident any sheep had escaped from the area fenced by Mr McKenzie.
[115] Mr Lundie-Jenkins stated that Mrs Bryan was not able to fulfil the contract after her accident and while receiving medical treatment. She had nominated Ms Ruth Glover, who was approved by the Commission, to maintain the mala and bilby.
[116] Mr Lundie-Jenkins gave evidence in cross examination that to his knowledge Mr McKenzie was employed as the technical officer and Mr Langford in his role as senior technical officer provided supervision and oversight of Mr McKenzie.
[117] Mr Lundie-Jenkins agreed in cross examination that he had walked through the pens where the sheep were kept. He had touched them. He understood that at least one or two of the animals had been hand-reared. The sheep showed no tendency to shy away. The ram showed no evidence of aggression (tp 1330). He stated in re-examination that he still tended to be cautious of rams, particularly in a confined space (tp 1332). He stated that he would observe where the animal was and how it was behaving in relation to his presence in the pen.
[118] Mr Donald George Langford has been employed by the Conservation Commission between 1983 and 2003. He was at the time of the ram attack a technical officer located at the Wildlife Research Station at Arid Zone Research Institute. He made a statement dated 2 April 2004 (Exhibit D65). A major part of his work was with the reintroduction of mala. He would go to the small animal enclosures about once every six weeks. He referred to the problem with grass in the area adjacent to the small animal enclosure. He remembers a suggestion that sheep be allowed to graze in the area and thought this a reasonable suggestion. Mr Langford stated he was not aware there was a ram there until told about Mrs Bryan’s accident. He was not aware of any complaints made by Mrs Bryan concerning the fencing of the area. He stated he had no knowledge or experience with rams. He was not experienced in the behaviour of rams.
[119] Mr Langford described Mrs Bryan as a very good worker, one of the best (tp 1508). She had all the qualifications needed for the job. Her work involved lifting and carrying, bending and stooping. Before the accident with the ram she had no difficulty performing any aspect of her work. Mr Langford stated he was a member of the Arid Zone Research Institute Safety Committee. This Committee met about half a dozen times a year. The Safety Committee had responsibility to see that the Commission’s safety policy was carried into effect. It had fallen to Mr McKenzie to be responsible for keeping the area adjacent to the mala and bilby pens clear. Mr Langford agreed that people who entered the compound were not just going to the mala and bilby area. People periodically parked their cars there, there were other sheds and stores within the compound that people accessed.
[120] Mr Langford saw a fence behind which were the sheep. He assumed the technical people who constructed the fence had done it properly. He explained Mr McKenzie was able to build a stock proof fence. He agreed that the male species of animal are more dangerous than female (tp 1518). Had he known there had been problems containing the sheep, he would have probably consulted with Mr McKenzie to see the fence was secure and as to the nature of the sheep. Had he known there was a ram there he would have been concerned that the animals were at all times kept behind the enclosure. If he had known there was a ram there he would not have necessarily considered it was dangerous to people (tp 1519). He believed Mr McKenzie would have built a satisfactory fence as he is a competent welder. He did not inspect the fence to see if it was secure. Mr McKenzie built the fence by scrounging material that was there and as there was no budget expenditure he did not need to seek any other authority. Mr Langford agreed that had he wanted to know anything about the behaviour of rams, he could have asked a vet who was at the Institute as could anyone else employed there (tp 1520).
[121] Following the accident, Mr Langford observed Mrs Bryan with a buckled up body and face which was extremely stressed. After the accident he never saw her walk properly again. Prior to the accident he had never observed Mrs Bryan having difficulty with her gait.
[122] In re-examination Mr Langford said had Mr McKenzie told him it was a quiet ram he would probably have accepted this and not been concerned.
[123] Mr Langford stated the compound had two large gates padlocked at the middle, usually locked late in the afternoon after knockoff time and opened again the following morning at 8.00 am or sometimes earlier. There was a fence around the whole compound made of cyclone wire. There was another set of gates but they were permanently locked. The fence was a defence against intruders such as feral dogs (tp 1523).
[124] Mr Reeves QC on behalf of the defendant, submitted that liability in this case comes down to four propositions.
[125] Firstly, he argues the proposed implied terms to give this contract business efficacy do not come close to meeting the established criteria for implying a term into this contract. I have ruled that I consider there is an implied term in the contract between the plaintiff and the defendant in the terms as set out in par 4 of the plaintiff’s Third Further Amended Statement of Claim.
[126] The second argument in the alternative, is that the defendant was not obligated to take any steps to avoid this ram butting the plaintiff because it was not reasonably foreseeable that this particular ram would butt the plaintiff.
[127] I have held that it is a matter of general knowledge that a large male animal weighing 70-100 kilos and 700 millimetres high, could become aggressive and should be kept away from an area where it could mingle with people. This is supported on the evidence of Mr Johnson, Mr Williams, Dr Plant, Mr Wurst and Mr Lundie-Jenkins to which I have already referred. Mr McKenzie was repeatedly attempting to repair the fence with the idea of keeping the sheep, including the ram, contained. Unfortunately the ram escaped again on the 17th of June into an area it was not supposed to be, and attacked Mrs Bryan. The fact the ram had not previously shown aggression or that it was hand-reared by bottle does not, on the evidence, diminish the potential of the ram to become aggressive. I am satisfied on all the evidence that it was reasonably foreseeable that this particular ram would constitute a danger to the plaintiff if they were in the same enclosure as they were on the date of the ram attack. The defendant had a responsibility to prevent the ram from pushing its way out of Area A, where it was supposed to be fenced in, and escaping into Area B. Area B was traversed by Mrs Bryan and other persons wishing to go to the mala and bilby pens.
Element of Control by the Defendant:
[128] Thirdly, counsel for the defendant argues that alternatively even if a term can be implied into this contract, which is the equivalent of a duty of care in tort, and even if this particular ram butting the plaintiff was reasonably foreseeable, the foreseeability of that risk was not sufficient in the circumstances to require or impose a duty of care on an occupier of land in relation to that contract. This is because, on the defendant’s argument, animate agents involve different considerations than the traditional approach to occupier’s liability when dealing with inanimate objects. The defendant’s submission is that the essential difference revolves around the question of control, that different considerations arise where the case involves a person or animal that has a will of its own, as distinct from an inanimate object that does not have free will e.g. a machine or building. On the defendant’s argument, this approach is dictated by the fact that an animal is a living creature capable of spontaneous action (Aldham v United Dairies (London) Ltd [1940] 1 KB 507 at 511 per Greene MR and 513–514 per du Parcq LJ. I note that in this case, although du Parcq LJ made comments as to the disposition of the pony committing an act which was contrary to its previous nature, the Court ultimately concluded that a driver who knowingly leaves a restless pony unattended is justly held guilty of negligence. See also Draper v Hodder [1972] 2 QB 556 at 566 and 569 -570 per Edmund Davies LJ. The rule that applied in this case “is that the defendant is to be held liable only for such consequences of his negligence as a reasonable man could have foreseen” – Edmund Davies LJ at 571. In this case the defendant was held liable in negligence because he ought reasonably to have foreseen that by failing to confine his pack of Jack Russell Terrier puppies they might inflict substantial harm on the infant plaintiff.
[129] Counsel for the defendant refers to the principles established in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. In this matter the High Court held that the operator of a video shop business was not liable to an employee of his who was attacked by other persons and badly injured while walking to his car in the carpark. It was held by the majority of the Court that the landowner’s duty as an occupier of the land did not extend to taking reasonable care to prevent physical injury to the injured employee resulting from the criminal behaviour of third parties on that land. At par 35 Gleeson CJ:
“The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some special relationship of the kind earlier mentioned, would be contrary to principle; a principle which is based upon considerations of practicality and fairness. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. There was nothing special about the relationship between the appellant and the first respondent. There was nothing about the relationship which relevantly distinguished him from large numbers of members of the public who might have business at the Centre, or might otherwise lawfully use the car park. Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable.”
[130] In the case before this Court, there was a risk of harm to the plaintiff from this ram butting her, in the sense of it being real and not far fetched. There was no special relationship between the plaintiff and the defendant such as employer and employee, parent and child or hospital and patient. Counsel for the defendant submits that the essential question is whether the defendant had control over the ram such that it should be held liable to the plaintiff for its actions. I am satisfied that on the evidence the defendant did exercise control over the ram to the extent that it had a responsibility to keep the ram in a secured area or take such other steps as were necessary to ensure the ram could not attack Mrs Bryan.
[131] In this context it is further submitted that reliance by the plaintiff and assumption of responsibility by the defendant are relevant.
[132] The evidence on who was the owner of the ram and who could and did exercise control over it comes firstly from Mrs Bryan and Ms Pulford.
[133] Exhibit P13 is the statement of Ms Andrea Pulford dated 27 February 2003. Ms Pulford explains the reasons why in late 1993 or early 1994 it was convenient for her to give away a ram that she owned. Ms Pulford states that Mrs Bryan had spoken with her and mentioned that Mr Brian Gill, a stock inspector with the Department of Primary Industry and Fisheries, was looking for a ram to breed with a ewe kept by him. The evidence is, that it was Mr Gill who owned the ewe that was depastured at the Arid Zone Research Institute. The evidence is the Department of Primary Industry and Fisheries shared facilities with the Arid Zone Research Institute. There is also evidence Mr Gill lived very close to the Arid Zone Research Institute. Ms Pulford states that subsequently Mr Gill telephoned her and between them they arranged that Mr Gill would keep the ram on a permanent basis and it would be kept at the Arid Zone Research Institute. Ms Pulford stated the ram would have been 12–24 months old when Mr Gill received him. The ram had been bottle fed, weaned and then hand-fed by Ms Pulford until it was given to Mr Gill.
[134] Ms Pulford drove the ram onto the site at the Arid Zone Research Institute. At the time Ms Pulford delivered the ram, Mrs Bryan was on her way out of these premises with her husband Ross Bryan. Ms Pulford asked where the ram should go. Mrs Bryan had suggested the old nursery enclosure, an area Ms Pulford was familiar with as she had been there before.
[135] In her statement (Exhibit P1) Mrs Bryan referred to the problem with the buffel grass growing out of control near the mala and bilby pens (pars 44-49). Mrs Bryan stated she recalled a meeting was scheduled at the Wildlife Division of the Conservation Commission about getting calves to eat the grass rather than incurring the cost of mowing. Mrs Bryan was not consulted about this, nor was she invited to attend the meeting where this decision was made, but was not surprised when a ewe eventually arrived (par 51).
[136] Mrs Bryan stated that Mr McKenzie built a fence around the enclosure. She stated this was important given the school groups and tourists who frequently visited the area to view the bilby and the mala (par 52).
[137] The fence constructed by Mr McKenzie comprised two rows of wire. The wire consisted of three strands connected together. There was a gap between the bottom and the second row where the sheep used to get through (par 53). Mrs Bryan’s statement then goes on to state that late February or early March she arrived at work and there was a ewe in the paddock. In mid-March a lamb was put into the greenhouse with the ewe. Mr Gill advised her that the ewe was there to keep the grass levels down (par 54). The ewe and lamb kept getting out of that area which allowed them access to the carpark and in front of Mrs Bryan’s office. Consequently, Mr McKenzie built an additional fence running from the northern end of the old nursery to a fence further to the north and directly across the front of Mrs Bryan’s office. The fence was 25 metres from the office door. It had a gate to allow access to Mrs Bryan’s office (par 55).
[138] Mrs Bryan continues in her statement to say that Mr Gill asked if she knew anyone who had a ram as he wanted to start breeding. She told him she knew Andrea Pulford who may have a ram (par 56). A few weeks later, Ms Pulford came to the Alice Springs Saddlery, a business in which Mrs Bryan had an interest. Mrs Bryan said she told Ms Pulford that Mr Gill was looking for a ram. Ms Pulford advised that Mr Gill could have the ram for breeding purposes as long as he didn’t kill and eat it (par 57). Mrs Bryan did not see the ram placed in the enclosure. It arrived there approximately mid-May 1994 (par 58).
[139] The ewe and lamb started escaping through the fence again in front of Mrs Bryan’s office by pushing through the temporary fence. Mr McKenzie was required to repair the fence on several occasions (par 54).
[140] After the ram had been there a short time, Mr Gill asked Mrs Bryan to keep the bathtub of water in the enclosure topped up. She did this by pushing a hose through the fence. At no time did she ever enter the enclosure where the sheep were kept, being Area A.
[141] In the wintertime of 1994 the grass was low. Mrs Bryan asked Mr Gill if he was going to feed the sheep. He replied “No, I’m going to move them after the show” (par 64).
[142] Several weeks later Mr Gill came out to check on the animals and ask if everything was okay. Mrs Bryan replied “No, they are escaping”. She asked him to do something about the fence because she was concerned about the dogs attacking the sheep. She was aware Mr McKenzie would fix the fence where the sheep had squeezed through using whatever materials were available (par 65).
[143] Mrs Bryan stated she recalled Ms Pulford pulling up near the Arid Zone Research Institute office front gate and asking where Mr Gill’s sheep were located. At this time Ms Pulford had the ram in a horse float. Mrs Bryan told her where the sheep were and then went home. Mrs Bryan stated she recalled saying to Ms Pulford before leaving “make sure he is behind the gate”. Ms Pulford had replied “okay”. Mrs Bryan did not participate with unloading the ram into the temporary compound (par 67).
[144] Mrs Bryan stated in the subsequent paragraph of her statement that she had not observed the ram becoming aggressive or that it was ready to mate. She stated she had not seen any indication of their mating. Mrs Bryan said for the 20 hours a week that she was at the site she did not have much opportunity to make observations of the ram. She was very busy with her own work and not in a position to watch the behaviour exhibited by the three sheep. Mrs Bryan said that staff from the main office complained about the sheep getting out and walking around private vehicles and work vehicles.
[145] Under cross examination, Mrs Bryan agreed that by the time the ram arrived, the ewe and the lamb had eaten a fair bit of the grass in Area A as depicted on the plan annexured to her statement IDB8 (Exhibit P1). There was a lucerne patch. This was not to feed the sheep but to take for the mala out bush (tp 193). Mrs Bryan agreed that on two occasions she saw the ram get out of Area A as marked on the plan, and into Area B, prior to 17 June 1994.
[146] It is the contention of Mr Reeves QC on behalf of the defendant, that the defendant did not exercise control over the ram because the defendant assumed no responsibility to contain the ram in order to protect the plaintiff from it. Most of the defendant’s responsible officers did not know it was there and the two that did, did not know where it came from or why it was there. It is submitted for the Defence that Mr McKenzie’s fencing was not erected to control the ram for the protection of the plaintiff, but to constrain all the sheep from escaping, for their own safety. It was submitted on behalf of the Defence that Mrs Bryan had not sought permission from the defendant to bring the ram into the Arid Zone Research Institute.

[478] I have read the submissions made by Mr Reeves QC as to the interest rates from the current Law Almanac from 1 July 1993 to 17 December 2002. This gives an average of 7.19 per cent. Half the average would be 3.59 per cent. Consistent with Cullen v Trappell (supra) and Martin v Moore the interest for past economic loss would be 3.59 per cent.
Interest on Past Loss of Earning Capacity
10 years x 3.59% x 94,634.80 = $ 33,973.89
Future Loss of Earning Capacity:
[479] The evidence is that Mr Bryan planned to retire at the age of 63. Mrs Bryan planned to retire at the same time as they had plans to do many other things with their life. Mrs Bryan is three years younger than her husband, she will turn 60 years of age in 2006.
[480] Given a number of contingencies which include her age and the physical demands of her job, the possibility of her husband retiring earlier than 63 years of age or that their plans for retirement changed, I am not satisfied Mrs Bryan has established a claim for future economic loss.
Griffiths v Kerkemeyer – Claim for Gratuitous Services Past & Future
[481] Prior to the ram accident, the plaintiff was the person who took the greater part of the responsibility for the household chores, the shopping and the gardening. She performed these tasks for herself and her husband and such of their children who either stayed or lived with them.
[482] The evidence on this issue is contained in the evidence of the plaintiff herself, her husband Mr Ross Bryan, her daughter Selena, Mrs Kay Hawkins and the occupational therapist, Ms Michelle French.
[483] The principle established in Griffiths v Kerkemeyer (1977) 139 CLR 161 is that damages can include services that are necessary but which are provided gratuitously by a friend or a relative – see also Van Gervan v Fenton (1992) 175 CLR 327.
[484] I accept the evidence given by Mrs Bryan that prior to the accident she did the greater part of the cooking. Following the accident her husband does the greater part of the cooking. Mrs Bryan has difficulty standing for any length of time, difficulty in lifting and moving the pots and pans and generally working in the kitchen. She needs assistance with doing the clothes washing. Usually Mr Bryan loads and unloads the washing machine. Whilst she can do some dusting and wiping down, she has difficulty in using a vacuum cleaner. Prior to the accident, Mrs Bryan was an enthusiastic gardener who had built up a vibrant garden from nothing. Now she is only able to do a minimal amount of gardening. Prior to the accident she did all the housework and general maintenance including painting internal and external walls of the house. Mrs Bryan gave evidence about the plans prepared by architect Ms Dugdale. Mrs Bryan stated she had fallen twice around the home in the last two months and on other occasions. She considered the re-designed steps as suggested by the architect would be very helpful.
[485] Mrs Bryan described how she liked to be able to go out into the garden and gave evidence as to the future use of a wheelchair increasing her ability to go out into national parks, participate in activities with her husband and to be able to go shopping unassisted. Mrs Bryan gave evidence that her husband had retired early to care for her. This made her feel she had cheated him of a job he loves and that she is a burden upon him.
[486] Mr Ross Bryan described how following the accident he took his wife to the Bath Medical Centre. From there she was taken by ambulance to Alice Springs Hospital. She was wheeled into the ambulance on a bed. She left the hospital in a wheelchair. After Mr Bryan took his wife home she had difficulties with everything. Mr Bryan had to dress and undress her, cook the meals, take her to the toilet, do everything for her. On first arriving home from hospital, Mrs Bryan stayed in bed for five or six days. She was crying and complaining of her lower back pain. She was not a person normally given to complaining. Mrs Bryan remained in the house for about 10 days. Mr Bryan took her out to check on the mala and bilby. Mrs Bryan could only walk slowly and with some difficulty. Mr Bryan described how his wife had never returned to her pre-accident way of walking. She continued up to the present time to walk slowly and with difficulty. She requires assistance up and down stairs. Prior to the accident Mr Bryan did assist his wife at her place of work with carrying really heavy bulky items, otherwise she did everything herself. Following the accident she was not able to do the work she had previously done. Mr Bryan said that when his wife went to work following the accident, he would accompany her. Mrs Bryan was not able to clean the pens after the accident. Mr Bryan would do all the lifting and carrying and organise the placement of food into the food bins. In addition to himself, Mr Bryan had seen a couple of research scientists at the Institute come in to help his wife. His wife had also received assistance from work experience students. Mrs Bryan appeared to be in a lot of pain. Following the accident Mr Bryan was the primary carer. He did the shopping, cooking and laundry. Mr Bryan travelled to Darwin in 1994 for the Darwin Cup. During the three weeks he was away, his son Clint and daughter Selena cared for Mrs Bryan. Mr Bryan has had to accompany his wife on all her doctor’s appointments and to take her shopping. Mr Bryan is the principal cleaner in the house including showers and toilets and all areas of the house. He does the laundry and the ironing. Prior to the accident, Mrs Bryan used to do all the driving, now Mr Bryan drives her around. He does some gardening. They both share the care of their domestic animals.
[487] Following the accident, Mrs Bryan has not been able to participate in the housework to the extent she did prior to the accident. She could not do any sweeping or cleaning. She was able to put some of the clothes into the washing machine. Mr Bryan would hang them out. Occasionally she would cook a meal. About 12 months after the accident, Mr Bryan became aware of his wife having urinary accidents. He was not aware of any bowel or bladder problems prior to the accident. Following the accident, Mrs Bryan reverted to wearing flat shoes as she had difficulty walking in shoes with a heel.
[488] Mr Bryan gave evidence as to the long distance his wife used to be able to drive prior to the accident. He described her love of bushwalking and outdoor activities. This had slowed a bit when Mrs Bryan entered into the contract with the defendant because of her need to spend time at work caring for the mala and bilby. He described her employment with Parks and Wildlife prior to the accident. Mr Bryan described this as being pretty heavy work as he had seen her lift bales of hay and cart them around. Mr Bryan gave evidence that his wife’s social life prior to the accident had been a full and active one which included entertaining friends at home and visiting friends and relatives for social occasions and celebrations.
[489] Mr Bryan gave evidence at the trial that he was a horse-trainer from the early 1960s, and later got his licence to formally train horses in Alice Springs. He also rode racehorses in amateur races. In 1987 he gave up his licence, and Mr and Mrs Bryan’s son, Sean, took over his position at the stable. Mr Bryan said that Mrs Bryan was the backbone of their horse-training business, doing the essential ground duties such as cleaning the yards, feeding and washing the horses, and getting them ready for racing. They had between one and 16 horses at any given time.
[490] Mr Bryan said that his wife thoroughly enjoyed participating in anything to do with the family and the horses. Also, their other son, Clint, was a keen motorcycle rider. Mrs Bryan rode a motorcycle down to and around the stables.
[491] Mr Bryan was questioned about driving and holidays. Prior to the accident the Bryans had been on a driving holiday, driving to Adelaide, Port Augusta and over to the west coast and on to Darwin. They camped along the way. He also said that between 1991 and 1994 they went on driving holidays from Alice Springs to Adelaide and that Mrs Bryan was a very good and confident driver herself.
[492] When Mr Bryan worked as a Coach Captain for Ansett Pioneer, Mrs Bryan assisted him when he did a few tours, for example, in the West Macdonnell Ranges and Glen Helen. On one occasion she did the cooking for the tourists and on other occasions she helped with setting up lunch by unpacking, lighting the fire, putting the billy on and generally assisting.
[493] In 1972, Mrs Bryan worked for the most part in an unpaid capacity, along side her husband who was a senior ranger for the Northern Territory Reserves Board and responsible for all of the parks and reserves east of Alice Springs. Eventually the Bryans moved to Trephina Gorge in 1978 and stayed there until 1986. Mrs Bryan assisted Mr Bryan with rubbish patrols, cleaning barbeques, digging post holes and erecting fences, which he described as very heavy work. For example, the cleaning out of rubbish bins meant lifting a 44 gallon drum full of rubbish and emptying it into the back of the trailer, and then shovelling the refuse out of the trailer at the dump, which Mrs Bryan did. Fencing involved two people, and using a steel dropper, crow bars and star pickets. She also manually crank-started the generator, routed and painted signs, and drove the 4WD Toyota during back-burning. Mr Bryan estimated that she would drive as a passenger or driver, some 30,000 kilometres per year in some sort of assisting capacity. Fuel used to be delivered from Alice Springs and on occasion Mrs Bryan would move full drums of fuel by rolling them over and then usually had assistance from Mr Bryan to right the drum. Mrs Bryan would change tyres on the Toyota when required.
[494] Mr Bryan gave evidence that Mrs Bryan enjoyed bushwalking, as she was “a bit of a naturalist”, and was very good with animals and plants. He estimated fairly regular walks, up to and over five or six kilometres over the Macdonnell Ranges. When Mrs Bryan became a registered carer for wildlife in 1991, the bushwalking slowed down considerably as her time was taken up with injured and orphaned wildlife.
[495] Regarding her employment with Parks and Wildlife, Mr Bryan described it as “pretty heavy work”. He had seen her lump bales of hay and cart them around on a trolley for the mala, and she had to tip bags of lucerne chaff into bins.
[496] As far as home life was concerned, prior to the injury from the ram attack, Mr Bryan said that his wife tended to the garden as “that was her job”. As well as trimming, pruning, re-locating plants, weeding, lawn-mowing and basically spending every opportunity in daylight hours in the garden, she spread close to four tonnes of soil over the garden after the floods in 1988. Mrs Bryan did most of the painting, inside and outside, of the house, with Mr Bryan only allowed to paint the ceilings or the eaves. This stopped in 1994.
[497] Mrs Bryan was also the person who did the shopping, including the food to Mr Bryan’s clothes. She washed and ironed the clothes, kept a very tidy house by doing all of the cleaning.
[498] Ms Selena Matthews, daughter of Mr and Mrs Bryan, prepared a statement which was tendered (Exhibit P41). Annexed to the statement is a schedule of voluntary care which includes a column headed Selena Matthews. This details the voluntary care provided by Mrs Matthews for the period 17 June 1994 to mid 1999 when she and her husband left for Singapore.
[499] Mrs Kay Hawkins was a friend of Mrs Bryan. Evidence was given as to the support and voluntary help provided by Mrs Hawkins. Her statement is Exhibit 34.
[500] I accept the evidence given by Mrs Bryan as to her ability and capacity to perform a range of tasks and interests prior to the attack on her by the ram. I accept the evidence given by Mr Ross Bryan on these matters.
[501] I also accept the evidence given by Mr and Mrs Bryan as to the limitations placed upon her capacity to undertake these pre-accident activities following the ram attack. I find that Mrs Bryan’s life was drastically affected by the injuries she sustained in the ram attack and the pain and distress she has undergone in subsequent years.
[502] The evidence of Mrs Bryan on these aspects is substantially supported by the evidence of her husband Mr Ross Bryan, her daughter Mrs Selena Matthews, Ms Kay Hawkins and occupational therapist Ms Michelle French.
[503] I accept the submission made by Mr Meldrum QC that the schedules of assistance provided are not required, nor intended, to be any more than a general overall indication of the average time taken over a long period of time to assist the plaintiff. The schedules assist to establish the cost of such voluntary help and are within the legal principles of this head of damage.
[504] The plaintiff is entitled to recover for voluntary assistance and services provided to her since the accident. The principles applicable to the damages recoverable under this head of damage is set out in Professor Harold Luntz, 4th edition “Assessment of Damages for Personal Injury and Death” at par 4.6.1. These have been helpfully summarised by counsel for the plaintiff as follows:
“(a) Persons who are injured are often assisted by relatives or friends who provide nursing, perform domestic chores, help with travel, look after a business during the period of incapacity.
(b) Such assistance necessarily involves the relatives or friends in loss of time and may in some instances, result in financial loss to them, either in incurring travelling expenses or giving up wages which they would have earned.
(c) The law is now clearly settled that the need for the services entitled plaintiffs in the absence of a statutory prohibition or limitation (of which there is none in this jurisdiction in respect of this claim) to recover the reasonable costs of meeting these needs at commercial rates.
(d) As to the rates, we rely on the evidence of Ms Burkitt from the Red Cross (T1456-1460, exhibit P57). These rates are established as the commercial rates.”
[505] The decision of Griffiths v Kerkemeyer (1977) 139 CLR 161 and Van Gervan v Fenton (1992) 175 CLR 327 establish the principle that damages are recoverable under these heads as they constitute a measure of needs that have been created as a result of the personal injury suffered by the plaintiff.
[506] Counsel for the Defence, Mr Reeves QC, contends that the Court should not rely upon the estimates of care Mr Bryan provided to the plaintiff.
[507] Mr Bryan agreed in cross examination that the reason for the change between the first, second and third schedules provided by him was because he had grossly overstated the amount of care he had provided to his wife. He conceded that following the accident, and prior to his retirement, he was away from home an average of seven days per month.
[508] Counsel for the plaintiff concedes that there were mistakes made in the preparation of the schedule of services provided by Mr Bryan to the plaintiff. The Court was urged to accept the schedule of services (Exhibit P51) prepared after Mr Bryan timed himself doing various tasks. I find that whilst Mr Bryan made an error in his original calculations as to the time he spent on various tasks, I am satisfied that there was a need for his services and that he did provide them.
[509] The regime recommended by Ms French requires a greater amount of time than that provided by the carers to date.
[510] In assessing damages under this heading, I do take into account that the recommendations of Ms French are somewhat excessive. This is because as Mr Reeves QC points out, this assessment was made on one date in April 2002 when Mrs Bryan was having a very bad day. Mrs Bryan herself has made some corrections to the findings made by Ms French. Following the spinal stimulator implant there is evidence Mrs Bryan’s pain levels have been reduced and it is to be expected that in the future there will be an improvement in her mobility and capacity to undertake limited activities.
[511] On the basis of this evidence, I make the following calculations on past Griffiths v Kerkemeyer (supra) claim.
[512] A. From 17 June 1994 to 1 November 2001.
These figures are extricated from Exhibit P51 with a reduction to reflect the fact that the voluntary assistance of the mala and bilby shelter was not required after the cessation of the contract in October 1997. Added to this is the plaintiff’s concession that the voluntary assistance did not extend beyond December 1996. The plaintiff is allowed the past claim:
From the date of the accident to December 1996:
129 weeks x $588.15 = $ 75,871.35
From December 1996 to November 2001:
252 weeks x $548.15 = $ 138,133.80
$ 214,005.15
This must be reduced by the time spent in hospital, details of which are in par [462] of these reasons for judgment:
284 days ÷ 7 days = 40.57 weeks
$548.15 x 40.57 weeks = $ 22,238.45
$214,005 – $22,238.45 = $ 191,766.55
Total $ 191,766.55
[513] B. From 1 November 2001 to 31 December 2004
From 1 November 2001 to 31 December 2004 = 164.7 weeks
The weekly rate is based on the amounts for housekeeping and gardening set out in Ms French’s report of August 2003, Exhibit P40. This is preferred to the evidence of Ms Burkitt.
164.7 x 396.49 = $ 65,301.90
Reduce by time spent in hospital per attached schedule:
2 weeks (actual time 12 days)
2 x 396.49 = $ 792.98
$65,301.90 - $792.98 = $ 64,508.92
Summary
A. Total $ 191,766.75
B. Total 64,508.92
Total: $ 256,275.67
Amount allowed $250,000.00
Interest on Past Griffith v Kirkemeyer Expenses calculated
@ 3.59 %. That is $250,000 x 3.59% x 10 = $ 89,750.00
[514] C. Future Care Component
I refer to the evidence given by Ms French at pages 34-38 of her report (Exhibit P40) as to the housekeeping, gardening assistance required by Mrs Bryan and personal attendant care, eg to assist with exercises, personal care routine and meal preparation. In view of the subsequent improvements in her condition as a consequence of the pain stimulator, I do not accept that Mrs Bryan requires four hours of attendant care to assist her complete the weekly shopping and attending medical appointments. Mrs Bryan has given evidence that she and her husband do the shopping, whilst this is done slowly, it is still within her capability. Similarly, the evidence does not support a finding that Mrs Bryan is not capable of herself attending medical appointments. The evidence is that the pain stimulator implant has improved her own confidence in moving about. Her improved condition and the medical opinion that no further operations are anticipated or advisable would suggest that attendance upon medical advisers will be less frequent.
[515] For these reasons I do not allow the claim for four hours per week of attendant care to take Mrs Bryan shopping or for attendance for medical and therapy appointments.
[516] I do not accept the claim for two hours per day or 14 hours per week for other attendant care needs as specified by Ms French at par 20.7 of her report (Exhibit P40). This is because the assessment carried out by Ms French was done on one of Mrs Bryan’s bad days. The evidence is the number of bad days are decreasing. The spinal stimulator is reducing pain levels and allowing Mrs Bryan more mobility. I would allow 10 hours a week.
Total
Attendant care needs per week: 10 hours x $27 = $ 270.00
Home help needs per week: 5 hours x $20 = $ 100.00
Garden help per week: 0.5 hours x $25 = $ 12.50
---------------------------------------
15.5 hours per week $ 382.50
[517] The plaintiff was born on 22 September 1946. Luntz table 4A identifies the value to death of $1 per week for a female aged 59 as 897.1 (as claimed by the plaintiff). I have based the assessment on the claim as made by the plaintiff although on my calculation the plaintiff is currently 58 years of age.

$382.50 x 897.1 = $ 343,140.75
Less an amount for contingencies
Total allowed = $ 335,000.00
Past Medical Expenses:
[518] I accept the calculation on the amended special damages schedule Exhibit P81 with respect to doctors, hospital, ambulance and travel costs.
Amount payable to HIC $ 28,255.25
Amount paid by plaintiff to:
Doctors $27,648.77
Hospital 10.00
Ambulance 247.90
Travel 2,943.03
= $30,849.70 $ 30,849.70
Total $ 59,104.95
Interest on Past Medical Expenses:
[519] This is to be calculated at the rate of 3.59 per cent – see Martin v Moore (supra)
$59,104.95 x 3.59 x 10 = . $ 21,218.67
Future Medical Expenses:
[520] The plaintiff’s claims are as follows:

Service Provider
Description
Ongoing costs

One-off costs

Grant Mercorella

Monitoring progression and guidance with home-based exercise program

2 hours per bi-month for life

$1,620.00 pa

Initial monitoring progression and guidance with home-based exercise program

$ 3,240.00

Full physical assessment
$ 1,350.00

Hydrotherapy/Aquatic
physiotherapy assessment

$ 1,350.00

Wheat-filled packs

$ 110.00 pa
Dr Geoff Thompson

5 x consultations p.a.
$ 500.00 pa

Dr Orso Osti

Battery replacement to epidural cord stimulator $20,000 every 5 years

$ 4,000.00 pa

Dr Gus Matarazzo

Monthly visits of 45 minutes $97 per visit
$ 1,164.009 pa

TOTALS
$ 7,394.00 pa

$ 5,940.00

Total of one-off costs + $ 5,940.00
Total of ongoing costs:
[521] Ongoing costs are $7,394.0 p.a. or $142.19 per
week. Luntz Table 4A identifies the value to
death of $1 per week for a female now aged 59
as 897.1 $142.19 x 897.1 = $ 127,558.64
Total $ 133,498.64
Less and amount for contingencies Allow say $ 130,000.00
[522] The costs claimed by physiotherapist, Mr Mercorella, are based on a costing of physiotherapy services and included in his statement Exhibit P38.
[523] Mr Reeves QC, counsel for the defendant, argues that no amount should be allowed for future medical expenses because the inference to be drawn is that the plaintiff will be able to claim future medical expenses on Medibank Private. This is because, on the argument for the defendant, Medibank Private have not sought to pursue any claim for the plaintiff’s past claims for treatment.
[524] I do not think it appropriate to make no allowance for future medical expenses. In the event that Mrs Bryan is able to make a claim for these expenses on Medibank Private, or any other private health insurance scheme, then obviously that amount will have to be refunded to the defendant.
[525] On all of the evidence the preponderance of medical opinion is there should be no further operative treatment and Mrs Bryan’s condition should be treated conservatively. There is evidence that the spinal stimulator will have to be replaced every five years.
[526] On the basis of the evidence, I consider the claim for physiotherapy and attendance on the doctors as set out in the claim, are reasonable. I would allow the claim for future medical expenses.
One off costs $ 5,940.00
Ongoing costs allowed $127,558.64
Total $133,498.64
Amount Allowed $130,000.00
Past Pharmaceutical Expenses:
[527] I consider the plaintiff has established the amount of the claim as set out below:
We refer to the agreed figures for this item in
exhibit P81 $ 6,473.53
The agreed figures account for the period
to 22 March 2004, being the date of the
last pharmaceutical item appearing in the
agreed Special Damages Schedule.
Past pharmaceutical expenses are also
claimed for the period 22 March 2004 –
31 December 2004, being a period of
0.775 years.
The total amount paid by the plaintiff over
the most recent 12 month period appearing
in the Special Damages Schedule (ie the
period 22.3.03 – 22.3.04) was $201.70.
This figure has been used to calculate the
additional period since 22.3.04:
$201.70 x 0.775 = $ 156.32
Total $ 6,629.85
Interest on Past Pharmaceutical Expenses:
calculated @ 3.59 %: $ 6,629.85 x 3.59 x 10 = $ 2,380.11
Future Pharmaceutical Expenses:
[528] With respect to this claim I accept the claim as made by the plaintiff which is set out below:
The plaintiff has calculated this item by looking to the cost of pharmaceutical items for the period 23.03.2003 to 22.03.2004, being $201.70. (22.03.2004 is the last prescription referred to in Exhibit P80).
The plaintiff submits that the figure of $201.70 p.a. (ie $3.88 per week) is the appropriate figure to be used for the purpose of calculating the plaintiff’s likely future pharmaceutical expenses.
Luntz table 4A identifies the value to death of $1 per week for a female now aged 59 as 897.1
$3.88 x 897.1 = $ 3,480.74
Past equipment Costs:
[529] This includes the following categories from the Special Damages Schedule p 81:
Prosthesis and building costs
Amount paid by plaintiff:
Prosthesis $ 3,120.25
Building Costs $ 4,038.00
Total $ 7,158.25
Interest on Past Equipment Costs:
[530] Interest on costs 3.59 % x 7158.25 x 10 = $ 2,569.81
Future Equipment Costs:
[531] In her report dated August 2002 (Exhibit P40), Ms French has set out at par 24 on pp 43 – 44, an “Estimated Future Costing Schedule”. The weekly cost identified in Ms French’s report is $65.69.
[532] From this weekly cost I would disallow the following items:
a) Under the heading Mobility there are three items for folding walking frame, motorised chair, annual servicing of chair. These three items total $29.74 as a weekly cost. This estimate was made by Ms French during a two hour interview when Mrs Bryan was having a very bad day in 2002. I do not consider the medical evidence supports a need for these items. Since this date Mrs Bryan has had a spinal stimulator implanted and the need for any walking assistance has diminished.
b) Certain items under the heading Unit Cost, I would disallow. I agree with the submission made by Mr Reeves QC on behalf of the defendant that the Unit Cost of the items should not be allowed on the basis that this would be claiming twice for each item.
c) I note there are some items e.g. “raised garden beds” for which a weekly cost has not been allocated. However, I would not allow that cost on the basis that an amount has been allowed for gardening under the Griffith v Kerkemeyer claim and that should cover this item. The amount allowed for a front loading washing machine is on the evidence well above the cheapest price for a washing machine and sufficient to absorb the cost of the wall mounting of the washing machine and clothes dryer.
Accordingly, the total amount allowed for the weekly costs estimated at $65.69 deducting the $29.74 leave a balance of $35.95
$35.95 x 897.1 = $ 32,250.74
Renovations:
[533] Statements were made by architect Ms Susan Dugdale (Exhibit P55) as to recommended renovations to the plaintiff’s house. Exhibit P56 is the statement of Mr Clive Towell setting out the quantity surveyors costs of implementing the architects plans. The modification expenses arose from the report of occupational therapist Ms French. On the date Ms French assessed Mrs Bryan for the purpose of preparing her report dated August 2002, Mrs Bryan was having one of her “bad days”. Since this time, Mrs Bryan has had the spinal stimulator implant. Her pain levels have reduced and her mobility improved. The medical evidence does not support a finding that she is at real risk of falling or that she is in danger to the extent that the proposed renovations to the house are necessary. Mr and Mrs Bryan have already made some structural alterations to the bathroom which have been taken into account.
[534] I am not satisfied on the balance of probabilities that the claim made for further renovations to the house has been substantiated and accordingly do not allow the claim in respect of future renovations.
Summary of Findings:
[535] I have found that on 17 June 1994, the plaintiff was head-butted by a ram at the entrance to her office within the Arid Zone Research Institute at Alice Springs. Mrs Bryan had a contract with the defendant to care for the mala and bilby housed within the Arid Zone Research Institute. It was an implied term of this contract that the defendant owed her a duty of care as claimed in her Third Amended Statement of Claim. The ram arrived at the Institute about a month before it attacked Mrs Bryan.
[536] Mr Geoff McKenzie, an employee of the defendant, had been delegated responsibility for the old nursery area which was adjacent to the mala and bilby pens. He was also a member of the Safety Committee established by the defendant. Mr McKenzie was aware that a ram had been placed with other sheep in the old nursery area. Mr McKenzie had been effecting repairs to the fence around the area for the purpose of containing the sheep. The defendant managed and controlled this area. I have found that the defendant assumed management and control of the ram. It was reasonably foreseeable that the ram could cause injury to Mrs Bryan if it escaped into the area through which she had to travel to her place of work. The defendant breached the implied term to exercise a duty of care by allowing the ram to escape through the fence between the old nursery area and into the area where Mrs Bryan travelled to reach the mala and bilby pens.
[537] I have found that Mrs Bryan was head-butted by the ram in the area of her lower back. It was a hard and severe blow. As a consequence Mrs Bryan suffered injuries including severe and debilitating pain to her lower back, her groin and down both legs. The pain has continued despite extensive surgical and other treatment. She has suffered bladder and bowel incontinence, severe headaches, depression and side effects from the pain-killing drugs she has been prescribed over the last 10 years. In August 2003 she was fitted with a spinal stimulator. This has helped her to reduce her pain levels. She still has limited mobility but with the assistance of the spinal stimulator has been able to participate to some extent in day to day activities. I have found she is entitled to an award for pain and suffering and loss of amenities of life, loss of employment, medical and pharmaceutical expenses, past gratuitous services and future care.
[538] I now summarise the awards made as follows:
General Damages Past, Pain & Suffering
& Loss of Amenities of Life $ 100,000.00
Interest on Past General Damages 40,000.00
Future General Damages, Pain &
Suffering & Loss of Amenities of Life 70,000.00
Past Loss of Earning Capacity 94,634.80
Interest on past Loss of Earning Capacity 33,973.89
Future Loss of Earning Capacity Nil
Griffiths v Kerkemeyer Past, Gratuitous Services 250,000.00
Interest on Griffiths v Kerkemeyer Past 89,750.00
Griffiths v Kerkemeyer Future, Care Component 335,000.00
Past Medical Expenses (including HIC) 59,104.95
Interest on Past Medical Expenses 21,218.67
Future Medical Expenses 130,000.00
Past Pharmaceutical Expenses 6,629.85
Interest on Past Pharmaceutical Expenses 2,380.11
Future Pharmaceutical Expenses 3,480.74
Past Equipment Costs 7,158.25
Interest on Past Equipment Costs 2,569.81
Future Equipment Costs 32,250.74
Renovations Nil
TOTAL $1,278,151.81
[539] Accordingly I enter judgment against the defendant in favour of the plaintiff in the sum of one million two hundred and seventy eight thousand one hundred and fifty one dollars and eighty one cents ($1,278,151.81).
[540] The parties are granted leave to apply on the question of costs if they are not able to reach agreement as to costs.

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