Coote v Forestry Tasmania - [2006] HCA 26

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND HEYDON JJ
GRAHAM COOTE  APPELLANT
AND
FORESTRY TASMANIA  RESPONDENT
Coote v Forestry Tasmania
[2006] HCA 26
13 June 2006
H3/2005
ORDER
1.        Appeal allowed with costs.
2.Set aside the orders of the Full Court of the Supreme Court of Tasmania made on 23 March 2005.
3.Remit the matter to the Full Court of the Supreme Court of Tasmania for determination of the issues raised by pars 7 and 8 of the Notice of Appeal to that Court dated 28 July 2004.
4.The costs of the trial of the action and of the appeal to the Full Court of the Supreme Court of Tasmania should be in the discretion of the Full Court.

On appeal from the Supreme Court of Tasmania
Representation
J Ruskin QC with S A O'Meara for the appellant (instructed by Hilliard and Associates)
D E Curtain QC with C M O'Neill for the respondent (instructed by Phillips Fox)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Coote v Forestry Tasmania
Negligence – Breach of duty – Appellant tree feller rendered paraplegic after a branch fell from a tree and hit him – Respondent, by its forestry officer, gave the appellant a direction that he was not to fell pulp trees as he normally would – Whether respondent was negligent in giving that direction and so causing appellant to place himself in a position of danger.
Appeal – Approach to issues of negligence and contributory negligence – Trial judge finds that respondent, by its forestry officer, gave the appellant tree feller a direction that he was not to fell pulp trees as he normally would – Centrality of finding to conclusion of negligence – Full Court does not disturb that finding but finds no negligence – Whether finding of no negligence open to Full Court in the circumstances – Whether any error of judgment of the appellant a matter relevant to contributory negligence.
Forestry Act 1920 (Tas).
Forest Practices Act 1985 (Tas).

GLEESON CJ, KIRBY, HAYNE AND HEYDON JJ. In September 1998, the appellant was working as a tree feller in a logging coupe in a State forest at Roses Tier in northern Tasmania. He felled two sawlog trees. Both trees brushed another as they fell. After he had trimmed the sawlog trees, he walked under the tree that had been brushed. A branch fell from that tree and hit him. He was rendered paraplegic.
The appellant contends that but for some directions given to him by a Senior Forestry Officer (Harvesting) employed by the respondent, Forestry Tasmania, he would have felled the tree brushed by the sawlog trees before felling the two sawlog trees. He did not do that because he believed the tree he left standing was not a sawlog tree but was a pulp tree.
The appellant's claim
In 2001, the appellant brought action in the Supreme Court of Tasmania…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coote v Forestry Tasmania

Details

AGLC: Coote v Forestry Tasmania [2006] HCA 26
Case: [2006] HCA 26
Decision Date: 13 June 2006

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Full Court of the Supreme Court of Tasmania concerning a claim for negligence. The appellant, an experienced tree feller, suffered severe injuries, rendering him paraplegic, when a branch fell from a tree and struck him. The appellant alleged that the respondent, Forestry Tasmania, through its forestry officer, was negligent in issuing a direction that altered his usual method of felling pulpwood trees, thereby causing him to place himself in a position of danger.

The central legal issues before the High Court were whether the Full Court erred in finding no negligence on the part of Forestry Tasmania, despite a finding by the trial judge that the respondent's forestry officer had given the appellant instructions that varied his normal work system. The court also considered whether any error of judgment by the appellant was relevant to the issue of contributory negligence. The appeal involved an examination of the respondent's statutory duties under the *Forestry Act 1920* (Tas) and the *Forest Practices Act 1985* (Tas), particularly concerning timber harvesting plans and the supervision of logging operations.

The High Court allowed the appeal, setting aside the orders of the Full Court. The Court reasoned that the Full Court's conclusion of no negligence was not open to it in the circumstances, particularly in light of the trial judge's finding regarding the instructions given by the forestry officer. The High Court determined that the Full Court had not properly considered the centrality of this finding to the question of the respondent's negligence. The matter was remitted to the Full Court for determination of specific issues raised in the notice of appeal, with costs to be determined by that Court.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Supreme Court of Tasmania made on 23 March 2005.

3. Remit the matter to the Full Court of the Supreme Court of Tasmania for determination of the issues raised by pars 7 and 8 of the Notice of Appeal to that Court dated 28 July 2004.

4. The costs of the trial of the action and of the appeal to the Full Court of the Supreme Court of Tasmania should be in the discretion of the Full Court.

Background

Background to the litigation

Of central importance was s 21(1) which stipulated:"(1) Where a timber harvesting plan has been approved by the Board in respect of the harvesting of timber on any land and is in force under this Act:(a)any person who in the process of harvesting timber on that land or in the process of carrying out any operations associated with the harvesting of timber on that land contravenes or fails to comply with the provisions of the plan...is guilty of an offence and is liable on summary conviction to a fine not exceeding 150 penalty units or a daily fine not exceeding 10 penalty units".The facts As indicated earlier in these reasons, by the time of his accident the appellant was a very experienced tree feller. Prior to August 1998, he felled trees for Padgett according to harvest plans requiring clear felling as well as plans requiring selective logging or "regrowth retention". The appellant was aware of the need to comply with timber harvesting plans. Mr Johnstone had been the appellant's "bush boss" or logging foreman when he began to work for Padgett. Each respected the skills and abilities of the other. Mr Johnstone ceased working for Padgett some two months before the appellant's accident. He was then appointed an officer of the respondent. In August 1998, Padgett engaged the appellant to fell trees in the logging coupe situated at Roses Tier in a State forest. He commenced that work in mid‑August 1998. In this context, as before, he had occasion to work with Mr Johnstone. However, Mr Johnstone now exercised the respondent's statutory powers of supervision over the coupe in which the appellant was injured. Mr Johnstone visited the coupe regularly and saw it as his function to exercise the powers conferred on a forest officer by the Forestry Act and the applicable timber harvesting plan. The timber harvesting plan applicable to the coupe in which the appellant was working was an approved plan under Div 1 (ss 17‑26) of Pt III of the Practices Act. The plan was approved on 15 August 1998, approximately one month before the appellant was injured. It was drafted and approved by employees of the respondent and was to apply until 30 June 2000. Mr Michael J Smith, who approved the plan, appears to have been a forest practices officer. Mr Smith did not give evidence. The operation prescribed by the plan was identified as an overstorey removal/shelterwood operation. These terms have a settled meaning in forestry parlance as synonymous with regrowth retention. This involves the forest overstorey, previously retained to provide protection for new regrowth from climatic extremes, being reduced by harvesting so as to allow further growth of the new crop. Within the timber industry trees may be categorised as sawlog trees or pulpwood trees. Sawlog trees consist of those the logs of which are of a quality suitable to be milled, whereas pulpwood consists of wood suitable only for pulping. The evidence of the appellant was that a sawlog tree is "healthy looking", whereas a pulp tree might be "twisty" or bent or have rotten segments. One could generally tell a sawlog tree from a pulpwood tree by looking at it. The appellant had assessed the tree from which a branch fell and hit him to be a pulpwood tree.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, KIRBY, HAYNE AND HEYDON JJ GUMMOW J

However, this submission relies upon a selective use of the evidence and of the findings of the trial judge, resulting in a failure to keep the findings respecting the conduct of the appellant in a proper perspective. The appellant was correct to submit that the conclusion of Blow J respecting the respondent's negligence must be read in light of his Honour's acceptance that Mr Johnstone gave the appellant certain instructions and supervised their performance, and that those instructions required a variance to the system of work the appellant would otherwise have adopted.Conclusion The appeal should be allowed with costs. The orders of the Full Court made on 23 March 2005 should be set aside. The respondent should pay the appellant's costs of so much of the appeal to that Court as was determined by the orders of 23 March 2005. The matter should be remitted to the Full Court for determination of the issues raised by pars 7 and 8 of the notice of appeal to that Court dated 28 July 2004 with the question of the costs of the trial and of the further hearing of the appeal to the Full Court reserved to the Full Court.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, KIRBY, HAYNE AND HEYDON JJ, GUMMOW J

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