Coote v Forestry Tasmania

[2006] HCATrans 156

[2006] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H3 of 2005

B e t w e e n -

GRAHAM COOTE

Appellant

and

FORESTRY TASMANIA

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 23 MARCH 2006, AT 10.16 AM

(Continued from 22/3/06)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Ruskin.

MR RUSKIN:   Thank you, your Honour.  Before I make brief submissions in relation to the judgments, may I ask the Court to look at one further short passage of transcript which was not in my list of important passages and that is at page 81 of the book.  If I may ask the Court to look at line 35:

Let’s come back to the two saw trees, there were two saw trees fairly close together?

The appellant is being cross‑examined about the accident itself:

And you came up to those saw trees, what was their direction and lean, and what were the decisions which you had to make in relation to them, what was around them, can you describe it please?........There was the two saw trees, and I looked and they were leaning – I sort of thought I could get into that gap that was there, there was that pulp tree there and there was a regrowth spar on one side, and there was a regrowth spar on the other side, and there was a pulp tree just behind the regrowth spar.  And the pulp tree had a few big limbs poking out of it.  And I would have liked to have felled that pulp tree out of the way but because I couldn’t fall the pulp tree I left it there because I knew I was going to brush some limbs out of it.  So I felled the two saw logs into the gap that I could see that was there.

You felled the first saw log, did that make any contact with the pulp tree or any other tree? . . . 

In what way, did it barrel it, did it brush it, did it smash it, what happened?........It brushed it.

The second saw tree?........It brushed it as well.  It went basically through the same gap.

That is the passage.  Now, may I then take the Court to the judgment of the learned primary judge.

KIRBY J:   Just before you do that, could you help me with a few little things.  First of all, there is no challenge to the contributory negligence finding, is there?

MR RUSKIN:   That is so.

KIRBY J:   And we are not concerned in any way with the contribution findings which were made contingently?

MR RUSKIN:   That is so, your Honour.

KIRBY J:   Secondly, is there a photograph which shows a pulp wood tree and a saw log tree to such an extent that a lay person could understand the difference between them?  Maybe that can just be looked at and if you can find it that might be helpful to have a look at that.

MR RUSKIN:   Yes, certainly.

KIRBY J:   What is a skidder?

MR RUSKIN:   I imagine a skidder is a – it is a tractor with a big grab that pulls logs along and as it does that it can bang into trees and make them fall.

KIRBY J:   And a coupe?

MR RUSKIN:   A coupe is a big area of forest.

KIRBY J:   It is a delineated area that is the subject of the felling operation?

MR RUSKIN:   That is so, your Honour.

KIRBY J:   But a comparatively small one that is the subject on a particular day, is that ‑ ‑ ‑

MR RUSKIN:   Correct.

KIRBY J:   And to snig?

MR RUSKIN:   To snig is to drag the log along.

KIRBY J:   And barrel is to hit directly and brush is to strike while falling?

MR RUSKIN:   And hit a limb, may or may not hit a limb.

KIRBY J:   Yes.  I will let you go to the primary judge’s reasons now, but I do want some help later on this suggested distinction between the right to fell a tree, – a dangerous tree and the right to fell a potentially dangerous tree.

MR RUSKIN:   Yes, your Honour.

KIRBY J:   You draw that distinction which the respondent says is artificial or specious.

MR RUSKIN:   Yes.

KIRBY J:   I think I would like some more help on why there is a real distinction between that given the skills of the respondent.

MR RUSKIN:   Yes, your Honour.  Well, it is a distinction which we will come to logically in a moment, if that is acceptable.

KIRBY J:   Yes, very well.  You come to it in your own time, but it is the matter that is worrying me.

MR RUSKIN:   Yes.  To assist your Honour about photographs, 443 of the book, I am told, makes the difference.  It may or may not be available to the eye, but as I understand the evidence, if your Honour looks at the photograph on the – that looks like B – does your Honour see a little B?  That is a pulp tree and a saw tree is in the bottom of the left quadrant.

KIRBY J:   Could you explain to me the forestry reason for not taking pulp trees and concentrating on saw trees.  In short, is the reason one which is connected with reforestation or is it connected with money, that there is more money in bringing down the saw log trees and no money in bringing down – or little money in bringing down a pulp tree?

MR RUSKIN:   Yes.

KIRBY J:   Or is it because that is good forestry practice to leave the pulp trees and deal with them separately?  Was that explained in the evidence?

MR RUSKIN:   In the evidence, as I understand it, the – and it comes at 76.  The reason was the later contractor was going to do it.  It is at 73, I am sorry.  In the evidence it is – in a normal regrowth you take out all the pulp trees, and that came – to answer this ‑ ‑ ‑

KIRBY J:   Why not just go in, as I am sure they did in the old days, and just clear the whole area and then sort out which were pulp and which were the saw log trees, then there would be no danger of the kind that arose.

MR RUSKIN:   Yes.

KIRBY J:   Now, is it because we have become more environmentally concerned, or is it because the particular contractors were concerned to concentrate on saw log trees because there is more money in them?

MR RUSKIN:   It may be the latter, but to answer your Honour it is helpful to show you two short passages in the transcript.  At 55 your Honour – and this was part of the problem that made this a weird or unusual harvesting plan so far as the appellant was concerned.  He had been involved in clear felling and that is defined at 55, line 25 or thereabouts:

Describe how a clear felling operation works . . . Well in a clear fell situation you’ll get yourself a track down to the back of the block or wall, you know.  Say if sun’s rising – the sun rises where that window is there and I’m on the landing here the trees are all falling that way so the butts will be towards the landing, so you work – you basically cut yourself a track down to the back and then you fall all the trees towards the sun basically, clear fell, so there’s nothing in front of you –

which is what perhaps your Honour Justice Kirby was saying a moment ago.  That is clear felling.  You just take everything in front of you and there is no danger.  That is clear felling.

KIRBY J:   Why do they not do that?  I could concede that that might be because we have become more environmentally sensitive and we do not just devastate land, but do it more particularly by reason of the industry needs.

MR RUSKIN:   That might be, with respect, wishful thinking in this case, but the real reason is – exposed perhaps at 73 that is what the evidence might show.  Just before I go to that, can I give you what regrowth retention is and that is at 58 and:

re‑growth retention is where you take all the big saw logs out and you take all – most – all of the pulp trees out, you might leave the odd seed tree –

So again, if this was the normal clear fell or the normal regrowth retention you would not have had this accident, you would not have had this problem, your pulp trees would go before your saw trees were attacked or sawn.

HEYDON J:   Is the harvesting plan relevant on page 335?  It says:

This coupe is to be treated as a overstorey removal/shelterwood operation, however sawlog production is to be maximised.  Trees in the shelterwood section are to be retained at a basal area of 12m2 or approximately one tree every two tree lengths.

Is that relevant to the precise circumstances of this accident?

MR RUSKIN:   Not really, because it is the two lines down that made it unusual.  It exposed the unusual aspect because, your Honour, the first line is, it is an overstorey removal/shelterwood operation which would normally enable – it is another word for regrowth retention.  It would normally enable pulp trees to be removed in front of the removal of saw logs.  But the difference here – my learned junior says that it enabled the removal of very tall trees and enabled the growing trees to get sunlight and to become big saw trees in due course.

KIRBY J:   The growing trees, as you describe it, are pulp trees, are they?

MR RUSKIN:   They are saw log trees, as I understand it.

KIRBY J:   They are small saw log trees?

MR RUSKIN:   Yes, and you get rid of the big ones ‑ ‑ ‑

KIRBY J:   So why leave the pulp trees?

MR RUSKIN:   Well, that is the – I have been leading your Honour to that answer and I will take you to it if I can just ‑ ‑ ‑

KIRBY J:   You have not got me there yet.

MR RUSKIN:   No, I know, I am getting your Honour – I have delayed your Honour and I am sorry.  Could we go to 73.  This seems to be the explanation and why I took you down this track was that it is unusual and why?  The answer seems to be at ‑ ‑ ‑

KIRBY J:   You say it is unusual, but there is evidence that says that it is not normal, but it is not unusual.

MR RUSKIN:   Yes, there is some funny language about that.  They say it is not common, but it is usual.  Or another way round, they might say it is usual but not common.  There is a funny language that seems contradictory.

KIRBY J:   The point is it is not completely exceptional to do what was done on this occasion.

MR RUSKIN:   Yes.  That might be the – the appellant had never seen it before.  The witness who said that ‑ ‑ ‑

KIRBY J:   Well, you had better take us to that passage in due course where the appellant says he had never seen this particular pattern before.

MR RUSKIN:   Yes.

KIRBY J:   Because the respondent in its submissions says there was nothing particularly unusual about this and gives evidentiary citations to support that.

MR RUSKIN:   Yes.  Well, if the Court would be kind enough to go to 73 at line 15:

All trees that are considered to be unsafe by the contractor are to be removed; did you believe that that gave you any obligation about unsafe trees?

I am sorry, I have gone too quickly.  I should take you to 70 because that is the appellant’s state of mind.  Page 70 and line 12:

Now could the witness please be shown PO2 -

which was the logging plan -

is that a copy of the logging plan that you had a look at on the first morning on the coup?......Yeah, that’s the logging plan.

When you looked at that on that morning did you notice anything unusual about it?......Yeah, I noticed, because I immediately went through to the – where it says “felling” because that was my part of the job, and it said to maxi – like, to maximum –

or maximise –

the soil –

the saw, not soil, saw –

logs.  In other words, I said something to Peter Johnson about falling the pulp trees and he said, “No, it was – evidently there was another logging contractor coming in to do that.  We were only there to take the soil logs only out,” and I thought that was a bit strange.  That’s what I thought at the time.

Had you worked in an operation at all previously in native forest where you had had to remove, where you had a felling prescription like the one that you’d seen?......No, never.

And had you worked in anything like that in a plantation forest?......No.

Do you recall thinking anything more about that plan when you looked at it?.........No, I just sort of thought it was weird and then – because it said – it sort of said one thing and yet we were told another.  It was sort of a bit ‑ ‑ 

What do you mean by that, Mr Coote?.........Well it sort of said it’s to be treated as over storey removal in a shelter wood operation, which means basically you take, you know, that’s basically like a retention regrowth –

the one I have told the Court about –

but it wasn’t that at all, it was a purely saw log only operation.

KIRBY J:   So it is purely saw log which would normally, as I understand this evidence be, to take out everything.  But on this occasion they said, no, leave the pulp trees because we have another contractor who is going to do them.  In a sense, your case, as I understand it, is that that increased the exposure of your client to the risk of – what is the word – brushing?

MR RUSKIN:   Yes.

KIRBY J:   Brushing and widow makers.

MR RUSKIN:   Yes.  It is said again, your Honour, at 73 where he says:

All trees that are considered to be unsafe by the contractor are to be removed –

and that is the reference in the logging plan, what did that mean?  And he said:

I was told by Peter Johnson that if there was – because of a previous accident some weeks before, or whatever, that on the logging track if there was a pulp tree, that the skidder had been pulling logs around, and it looked unsafe where the skidder had been pulling logs around it and dug the dirt up and it looked like it was going to fall over, well then I was to fall that tree.  And that’s basically all he said about unsafe trees.

That is the source then together with his evidence which we say the learned trial judge was entitled to accept about the discussion with Johnstone.  That is the origin of the limitation on what he could do.  In other words, if it is a tree that is going to fall, it is a very dangerous tree, whereas if it is a tree where you brush and you knock the branches off, that is not as dangerous, that is potentially dangerous.  The evidence he gave was, of course, at its height, and I took the Court just to it at 127 ‑ ‑ ‑

KIRBY J:   His response, as I understand it, was, “Yes, I was entitled to get rid of it if it was dangerous”, and, indeed, that would be self‑evident in this case.  But given this particular plan in this case, he did not walk under the tree for 20 minutes and he examined it, reached a view that it was not dangerous, but that the danger was presented by the plan which unusually left the pulp trees in position instead of clearing it when there would not be the risk of the type of accident that occurred, which must not be an unknown type of accident because they are known as widow makers.

MR RUSKIN:   Yes, indeed, and he said if I – in answer to one question in cross‑examination he said, “If I took out the” – learned counsel said to him, “But, why did you not take out this pulp tree?  You knew it was potentially dangerous.”  He said, “If I did that, I would take all the pulp trees out because I was doing this, I was brushing very often.”  That is the distinction, that is the source of the distinction.  In other words, by reason of the discussion he understood that if he – he had to limit what he would normally do in respect of pulp trees.  What he would normally do is get rid of them.  He could not do that because then he would not be obeying the plan and there is a penalty if you do not obey the plan as interpreted by the forestry officer.  So that passage at ‑ ‑ ‑

KIRBY J:   Mr Johnstone, a very experienced feller, asked him, a very experienced feller, why he had felled a particular tree which itself was only one incident, but one would have thought between two very experienced fellers, an unusual type of incident, except that Mr Johnstone had responsibility as a forestry officer by this stage.

MR RUSKIN:   Yes.  That is the passage in which he gives – it is an important passage in which he gives the explanation that said ‑ ‑ ‑

KIRBY J:   I am sorry to have asked those questions, but you just proceed with your argument.  I just wanted to get clear how you were putting the case.

MR RUSKIN:   Yes. 

KIRBY J:   I think I understand that now.

MR RUSKIN:   Yes, thank you, your Honour.  The passage that your Honour just raised is an important one because there – these men knew each other very well.  There is Johnstone with the metaphorical finger saying, “Why did you fell that pulp tree?”, and he answers, “Because I was going to barrel it or because it was directly in front of me”, and Johnstone moves on.  In other words, that is some evidence of acquiescence in the system.  Now, if I might then take the Court to the ‑ ‑ ‑

KIRBY J:   It is not an environmental reason to leave the pulp trees up?

MR RUSKIN:   No.

KIRBY J:   Because the intention in this case was to bring them down anyway?

MR RUSKIN:   That is indeed, so, your Honour.

KIRBY J:   But later and by a separate contractor?

MR RUSKIN:   That is it.

KIRBY J:   Who apparently was a pulp – or serving the pulp industry.

MR RUSKIN:   Yes, and that may be linked with money because if you concentrate your man, the appellant, getting rid of the saw logs you will get more done and will not be wasting time with the pulp trees because you are going to pay X to get rid of the pulp trees.  That may be the reason.  That, in fact, occurred, just to complete that, as my learned junior says, at 467.  It was common ground that Kevin Morgan Logging came later and, indeed, removed the pulp trees, so that there was corroboration of that arrangement.

GLEESON CJ:   Is the contract under which the saw‑logging operation was being done in evidence?

MR RUSKIN:   Yes, it was in evidence, but it is not in the appeal book.

GLEESON CJ:   Thank you.

MR RUSKIN:   Now, one of the crucial paragraphs in the learned primary judge’s judgment is at 479 and if I just may briefly bring that to the attention of the Court.  I have referred to it before.  That paragraph is informed – this is where the primary judge makes these crucial findings.  He says at line 10:

Mr Johnstone and the plaintiff both seemed to me to be practical men, and men of reasonable intelligence.  I do not think there was any real chance of a misunderstanding between them as to how readily Mr Johnstone wanted the plaintiff to fell pulp trees.

I pause to say, your Honours, that at transcript 63 and 67 – and I will not take the Court to it – is their evidence that Johnstone and the appellant had known each other and worked for many years before this event.  So that was going to inform the judge ‑ ‑ ‑

GLEESON CJ:   You took us through these reasons yesterday ‑ ‑ ‑

MR RUSKIN:   Yes, I did.

GLEESON CJ:   ‑ ‑ ‑ and you got as far as page 485.

MR RUSKIN:   Yes, and the paragraphs 31 and 33 are the paragraphs in which the primary judge brings the strands together which we say was open to him:

I find that Mr Johnstone regularly supervised the plaintiff’s work, and gave him instructions –

That was open to him because of the evidence of the appellant, an example of which was given this morning, that he looked at the tree, that he was there on many days and he was making sure he did not take things out willy‑nilly.  So there is the regular supervision.  The instructions were the discussion and statements made consistent with acquiescing in that arrangement by asking questions and so forth.

The final aspect of paragraph 31 is the fact that there was “obvious damage” to branches having been knocked down.  Unless Mr Johnstone was asleep, he must have seen it.  In other words, it was open to the primary judge to infer that the system was as undertaken by – the appellant was known to Johnstone, and that it was foreseeable that if you restrict a person’s capacity to get rid of pulp trees, you invite widow makers, you invite danger. 

Finally is paragraph 33 where he encapsulates the negligence in failing to instruct him to first fell the potential trees.  It was necessary for the respondent to do that in these circumstances, that he had an unusual, relative to the appellant, logging plan which had minimised pulp trees.  The logging plan, as I pointed out, had a line in it which said the – and the Full Court looks at this.  The line at 335, it said:

Direction from a Forest Officer will be supplied to help with selection.

And against a background in which, if you accepted the appellant, he was so restricted, so he could not remove the potentially dangerous brushing trees ‑ ‑ ‑

KIRBY J:   Well, there may be a flaw in your argument because the final decision, as your expert, Mr Rigby, said, was, “You make the call”.  He was your witness and he said, “You make the call”.  This is relevant to the causation issue, that even if you accept duty of care and even if you accept a better system could have been implemented, in the end the argument for the respondent is, because you make the call, that the causal link is severed and that you, as a very experienced feller, make the decision and therefore if, unfortunately, you make a wrong decision as an independent contractor, then it is on your head, literally and legally.

MR RUSKIN:   But the answer to that is, your Honour, is as follows.  First of all, this was an unusual logging plan and Johnstone had actively taken steps to, on the appellant’s case, impose a regime of restrictive removal of pulp trees.  As the Full Court noted, section 21 of the Forestry Practices Act made it a penalty to disobey the harvesting plan, as to which, by reason of section 8 of the Forestry Act, the respondent had exclusive management and control.  I will take the Court to the Full Court’s analysis of the content of the duty.  That is the first answer, that if the Forestry Officer has exclusive management and control in the implementation of the harvesting plan and if you are liable to a penalty if you do not obey it, then, whatever Mr Rigby says, the fact is that you are restricted in what you can normally do.

Now, the question really was whether a cause of the accident was the restrictive regime of pulp cutting imposed on the appellant by the respondent.  Like in that case of Thompson v Woolworths (Qld) Pty Ltd which we refer to, merely because the appellant might participate in his downfall does not exclude the causal breach of the respondent in these unusual circumstances, because it is not an error of judgment to say, “I’m not going to take this pulp tree down.  I’m doing it day in and day out, and you know it, and you approve it and you acquiesce in it”.  Now, it might be said, “Well, you could have defied him”.  Well, if he had defied him, he would have got into trouble, and he said that in his evidence.  So that might go to an argument about his responsibility, but it does not dismiss the responsibility of the respondent.

HEYDON J:   There is an inconsistency I think between that submission and the trial judge’s reasoning.  He says as a minor part of the contributory negligence reasoning that the only reasonable course was for the plaintiff to have defied Mr Johnstone, so it is a reasonable course to break the law.

MR RUSKIN:   Yes.  Well, we would respectfully say that is a finding that is at least unusual.  It is a very hard judgment to ask a person in the position of the appellant, who could face penalty and trouble, to defy the – how would that be a matter of contributory negligence to defy the person who is in charge of you?

KIRBY J:   Well, I suppose the answer is (a) because of his skill and (b) because of his ultimate human obligation to protect himself, but the primary judge concluded that taking a matter of justice and equity as the apportionment statute permits, it was not a very big apportionment to him – it was one‑sixth – and that is not challenged as an assessment.

MR RUSKIN:   No, it is not, your Honour.  But we submit that the passage that we were attracted to in the Thompson Case which is relevant here is really the passage at, if we may, because it is convenient – I think it is paragraphs [36] and [37], if the Court would be kind enough to look at that:

The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response.  In the case of some risks, reasonableness may require no response.  There are, for instance, no risk‑free dwelling houses . . . This is not a case about warnings.  Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care.  The whole idea ‑ ‑ ‑

KIRBY J:   This is not a warning case though.

MR RUSKIN:   No, it is not a warning case.  It is a direction case, but it is the passage which is in [37]:

The factual judgement involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations.  The weight to be given to any of them is likely to vary according to circumstances.  If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence.  On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.

So we say that it would be in the circumstances of this case where what he was doing was so systemic – he was doing it all the time to the knowledge and in the acquiescence of the respondent – it would be not a case in which the obviousness of the danger, as it were, severs the causal connection at all, because what is informing the control here in the respondent is the harvesting plan and the exclusive control and management that it brought to the respondent when you looked at the two people involved.  It is, in other words, glib to say, “Well, you’re the tree fellow.  You’re the man on the spot”, and so forth.

GLEESON CJ:   You were going to tell us what was the error in the Full Court’s reasoning.

MR RUSKIN:   Yes.  There are three observations about that.  If I may take the Court to the content of the duty of care; that was not an error., if I may just take the Court to that.

HAYNE J:   Why do we need to go to it, Mr Ruskin?

MR RUSKIN:   We do not, your Honour, but it ‑ ‑ ‑

HAYNE J:   Then why?

MR RUSKIN:   ‑ ‑ ‑ has been raised as part of the ‑ ‑ ‑

HAYNE J:   Well, what is the error?

MR RUSKIN:   The error comes at 56.  The Full Court held at 48 that the findings about “Mr Johnstone [giving] the plaintiff a direction to the effect that he was not to fell pulp trees as he normally would”, said the Full Court, “Those findings are in accordance with the oral evidence”.  Further, the court a little earlier, at 47, had found that “it was entirely appropriate for the learned trial judge to accept the respondent’s evidence” – that is in fact the appellant’s evidence – “of what Mr Johnstone said to him”.  Now, here was the error, we say, at 56.  At 55 the Full Court looks at what the primary judge concluded, “I find that” ‑ ‑ ‑

HAYNE J:   We have read that.

MR RUSKIN:   Yes, and then at 56:

In so concluding, I am of the respectful view that the learned trial judge fell into error.  The appellant, by its agent Mr Johnstone, did not need to tell the respondent “to first fell any trees that potentially posed a danger”.  He already knew that, and as I have said, perhaps repetitiously, that was common ground.

Now, it was not common ground.  He knew he would like to fell potentially dangerous trees, but it was not common ground that he had the right to, and it is the use of the words “as I have said, perhaps repetitiously, that was common ground”, and that is the error that ‑ ‑ ‑

HAYNE J:   Well, does it come to this, that the trial judge’s conclusion reproduced at paragraph 55 has to be understood in the light of the trial judge’s conclusions at paragraph 11 of his reasons, and the finding of the trial judge at paragraph 33 of negligence has to be understood as connected with and no more than a mirror image of the conclusions at paragraph 11 about direction to the effect that the plaintiff “was not to fell pulp trees as he normally would”?

MR RUSKIN:   Precisely.

HAYNE J:   Well, is there more to it than that?

MR RUSKIN:   No.  That is the error and that is how the case went off the rails in the Full Court.  Now, unless we can assist further, your Honours, we can draw the strands together in one sentence if that is helpful, and then we would seek to conclude what we have to say.  The sentence goes like this.  The conclusions of the primary judge were amply supported by the evidence, that being the plan itself, the positive conduct of Johnstone in implementing the plan, demonstrated by the substance of the discussions, restricting the appellant in the way he did the job, the consequent dangerous system of work regularly undertaken by the appellant, known, checked and acquiesced in by Johnstone.  The findings of the trial judge should therefore not have been disturbed.

GLEESON CJ:   Thank you, Mr Ruskin.  Yes, Mr Curtain.

MR CURTAIN:   If the Court please.  Could I deal with a couple of housekeeping matters first, if I could call them that.  Your Honour Justice Kirby asked if contributory negligence was an issue.  In fact, the respondent here did appeal the finding of contributory negligence and because it was successful in the Full Court, that matter ‑ ‑ ‑

KIRBY J:   But I was looking for a notice of contention.  There is no notice of contention or argument in this Court on contributory negligence.

MR CURTAIN:   No, there is not, your Honour.

KIRBY J:   It looks as if that finding was a sort of advisory opinion of the judge, perhaps for private purposes of the litigants, because we do not have Padgett before us and we do not have the employer or the other company before us.

MR CURTAIN:   That is true.

KIRBY J:   Therefore all we have to concentrate on is as between the appellant and Forestry Tasmania an error has occurred in the reasoning and orders of the Full Court.

MR CURTAIN:   That is true, your Honour.

HAYNE J:   But is your appeal to the Full Court against contribution still undetermined?

MR CURTAIN:   Well, we would say it is, your Honour, yes.

HAYNE J:   Does it follow that if the appeal were to succeed – what do you say would the consequential order be if the appeal of the appellant were to succeed?

MR CURTAIN:   We would say it should be remitted to the Full Court for deliberation of that aspect of the case.  Another matter your Honour Justice Kirby raised was the question of the pulp trees and the saw logs being removed.  My instructions are that the reason for leaving pulp trees and maximising saw logs was partially financial because saw logs, as I understand it at the time, were a more financially rewarding process than pulpwood, but in addition to that, the pulpwood provided over‑storey protection for the growing trees, and there is an environmental aspect to the reason for leaving as many pulp trees as one can safely do.

KIRBY J:   But in this case was that a factor ‑ ‑ ‑

MR CURTAIN:   Yes, it was.

KIRBY J:   ‑ ‑ ‑ given that there was a contractor who is named and referred to on page 467, going in very shortly afterwards to take out the pulp trees?

MR CURTAIN:   Your Honour, it is not very shortly afterwards.  In fact, it was May 2000.  You will see that from point 2 on page 467.  You will see that it was logging carried out by Kevin Morgan and they say at the second point 2:

the nature of the logging operation to shelter wood/over storey removal regime (this is still a form of selective logging);

So, in fact, the evidence by the appellant that it was removing all the pulp trees is not reflected in the correspondence about that, which correspondence was not challenged at all by the appellant in this case.

KIRBY J:   The accident to the appellant happened in August 1998 so that it is not all that much time before the proposed contractor going in and taking out the pulp trees.

MR CURTAIN:    I suppose in terms of tree growing it is not, your Honour.  Now, at the start of this appeal the Chief Justice asked my learned friend if he maintained a criticism of the forest harvest plan.  My learned friend, Mr Ruskin, said he did.  He said it was ambiguous and that it contained weird and unusual language.  In fact, in his reasons for judgment, Justice Blow specifically found that there was nothing wrong with the forest plan. 

The judgment that my learned friend seeks to defend is one in which Justice Blow dealt with the particulars of negligence at page 484 and, in fact, he went to the trouble of reciting them in full and then dealing with the ones that he said remained.  At the foot of page 484 he dealt with (g) and (h), which are providing a timber harvesting plan, et cetera, and failing “to direct that the coupe be clear felled”.  They are at lines 45 to 47 on page 484.  His Honour said about line 51:

As to (g) and (h), the evidence establishes that selective logging of the coupe in question would have been reasonably safe provided all pulpwood trees likely to have branches torn out of them by trees being felled were first felled themselves in order to avoid the risk of someone being injured –

So he finds against the allegations the plaintiff makes in that decision and, indeed, one only has to look at the rest of it.  He says at paragraph 30 on 485, having eliminated most of the particulars of negligence, “           However I do see merit in the few remaining parts”, and they are the second part of item VII in subparagraph (a), which is a failing to provide any training or instruction, and merit in the allegation in subparagraph (b), failing to supervise or adequately supervise.  That is drawn together in paragraph 33 of that page when he says:

I find that the third defendant was negligent in failing to instruct the plaintiff to fell first those trees which potentially posed a danger in that way, and in failing, through supervision, to ensure that he did so.

And that is all to do with Johnstone.  It is nothing to do with the harvest plan.

GLEESON CJ:   The essence of the case against you, as I understand it, right or wrong, is related to that proviso on the top of page 485, as I understand it. 

MR CURTAIN:    I accept that, your Honour, completely.

GLEESON CJ:   What is argued is that Johnstone, whatever the forest plan might have said, actually conducted himself in such a way as to prohibit or inhibit the appellant from removing pulpwood trees only on the ground that they were “likely to have branches torn out of them”.

MR CURTAIN:    I accept that completely.  When distilled to its purest form, the appellant’s case is Johnstone, by his language, instructed the appellant to such a degree that the appellant perceived he was prohibited from removing pulp trees unless he was going to barrel them.  That is the appellant’s case here and that is all it is.

HAYNE J:   Whereas the fact is the plaintiff/appellant would have removed other pulp trees had he had his way.

MR CURTAIN:    Exactly.

HAYNE J:   In particular, he would have removed the tree that ultimately fell on him ‑ ‑ ‑

MR CURTAIN:    Exactly.

HAYNE J:   ‑ ‑ ‑ and he did not because he understood, and the trial judge found as a fact, that he had been instructed not to.

MR CURTAIN:    By Johnstone.

HAYNE J:   Just so.

MR CURTAIN:   Not by the harvest plan, but by Johnstone.

HAYNE J:   Maybe.  What does it matter if the instruction was by Johnstone rather than the harvest plan?

MR CURTAIN:    Your Honour, it matters in this way, that the entire evidence of what the plaintiff said he was told by Johnstone which gave rise to that belief is contained in the transcript.  There is nowhere that Johnstone, according to the appellant, says that and it is our submission that when Mr Coote was pressed about it he was not able to point to any instruction from Johnstone that could reasonably be said to raise that inference.

HAYNE J:   Do you say that the trial judge could not make the finding of fact which he did at 479, paragraph 11, lines 19 and following?

MR CURTAIN:    Yes, we do.  We say that there is some ‑ ‑ ‑

HAYNE J:   Do you say the Full Court overturned that finding of fact?

MR CURTAIN:    We say that the Full Court said that his Honour fell into error in making that finding of fact.  My learned friend’s authorities talk about ‑ ‑ ‑

HAYNE J:   Paragraph 48, page 508 seems at odds with what you have just put:

Those findings are in accordance with the oral evidence and supported by the written evidence –

Now, if that includes the findings, so you have concurrent findings at trial and on appeal that Johnstone gave the plaintiff a direction to the effect that he was not to fell pulp trees as he normally would.  Is that not so?

MR CURTAIN:    Your Honour, if you read on, the Full Court deals with it:

It seems to me that that passage is in accordance with the evidence except for the words, “that the plaintiff rightly perceived Mr Johnstone’s direction as prohibiting him from felling the pulp tree from which a branch ultimate[y] fell and hit him”.

The difficulty about that phrase lies in the incontestable finding –

et cetera.  The Chief Justice then says what the phrase should have read if his Honour had accurately summed up the evidence:

“Provided the plaintiff did not regard it as dangerous to leave the pulp tree standing while he felled the sawlogs, the plaintiff rightly perceived –

et cetera.  We say that the Chief Justice is correct and we say when one trawls through the evidence that Mr Coote gave about the conversations with Mr Johnstone, nowhere is there any direct evidence that he was proscribed from hitting a tree which he thought posed a danger or a potential danger and it was an inference that the appellant said he drew which we respectfully submit he was not entitled to draw from what Mr Johnstone said.

KIRBY J:   It is a little awkward because both of them said they cannot put it in the first person.  Neither of them could say exactly and they were reconstructing.  To some extent you have to leave a leeway for judges to work out what in the circumstances was said and to draw inferences as to what was said.  That is something Justice Blow did and there was some evidence to support it.  There was the unusual, though not exceptional, provision of the forest plan and there was the unusual, as I would infer, step of Mr Johnstone to query the appellant as to why he had felled one particular tree, which does not sound like the sort of thing you would normally have a person of their equivalent skills asking to the appellant.

MR CURTAIN:    But when one looks at what Mr Coote said were the conversations with Mr Johnstone, he never says, “He told me not to do it”.  The closest he gets, as my learned friend, Mr Ruskin, said, was at page 127 when he is being cross‑examined at line 15:

It’s not your understanding that the timber harvest plan that says anything in there about barrelling, does it?.........In ‑ it is a bi[t] hard to explain.

Well please try to explain –

and instead of talking about the timber harvest plan, he says:

I was told by Peter Johnson that it was saw log only –

and this is something he adds to what he has previously given in evidence‑in‑chief –

and to not take any pulp trees out unless I was going to hit them, you know, like barrel.

But did Peter Johnson say “barrel” to you?.........No, he never used those words.

It is clear the appellant is not talking about the word “barrel” but those words.  So when he is asked to explain he gives an explanation which he says was not what Johnstone said.

GLEESON CJ:   Mr Curtain I think there may be a problem – whether it is your problem or your opponent’s problem is another question – but a problem about the way the evidence was actually taken in this case.  The evidence‑in‑chief and the cross‑examination consisted of a substantial amount of psychoanalysis.  The witness kept being asked what he understood, what was buzzing around in his own mind, and Justice Blow solved that problem at the end by the device of saying – and I do not use that word critically – “These two men were so well known to one another that I don’t think there would have been any misunderstanding”, and he seems to have drawn inferences from the evidence of what the plaintiff said he understood about what must have been said to him on the ground that the he thought it was unlikely that the plaintiff would have misunderstood him.

MR CURTAIN:    Yes.  If that is right ‑ ‑ ‑

GLEESON CJ:   That is a slightly unorthodox method of leading evidence about conversations.

MR CURTAIN:    We agree with that and it was, of course, the appellant’s job to establish his case about this, but the appellant in his evidence‑in‑chief was qualified in what he said.  We have set out all those conversations in our summary of argument, and I can take the Court to them, but essentially he was asked about safety.  Johnstone at page 73 – he was being asked about the plan, it is clear, on line 16, and he said at about line 19:

I was told by Peter Johnson that if there was ‑ because of a previous accident some weeks before, or whatever, that on the logging track if there was a pulp tree, that the skidder –

et cetera.  I will not read all that.  This is not the sort of tree in question but one that has been damaged by a skidder around it.  That is basically all he said about unsafe trees.  Then he was asked what “you understood”, as your Honour the Chief Justice has said, “that sentence to mean”, and he said:

Well if I was going to be working right beside it, or if it was going to be in my – if I was going to head it in any way, like smack it well then I’d fall it.  But apart from that I wouldn’t – I wasn’t no.

KIRBY J:   You see, in most trials the witnesses, under the instruction of judges and lawyers, go along with our game.  They reinvent what was said and they put it in inverted commas and they play our game.  But here were two witnesses, and certainly the appellant, who was not prepared to play our game and he was in a sense being more honest and saying, “Well, I can’t remember what I said and all I know is this is what I was taking him to mean”, and then Justice Blow in paragraph 31 makes findings which the question, I suppose, ultimately becomes, “Well, is there no evidence to support that or is that the province of a trial judge to do the best with the imperfect and rather unusual evidence as it came out and to make the findings that he does?”  Because he is very clear what he says:

I find that the plaintiff’s decision not to fell the pulp tree was consistent with obedience to Mr Johnstone’s instructions.

And in the earlier sentence:

I find that Mr Johnstone regularly supervised the plaintiff’s work, and gave him instructions to the effect that he was not to fell ‑ ‑ ‑

MR CURTAIN:   Yes, but then you look at paragraph 33, your Honour, and it is interesting that it is couched in the negative:

I find that the third defendant was negligent in failing to instruct the plaintiff to fell first any trees that potentially posed a danger in that way –

and I pause to say Mr Coote, the appellant, never said that.  He never used the term “potential”. 

The special leave point was never the subject of evidence from any witness in the case but a distinction drawn by his Honour the trial judge.  But in face of the clear written mandate in the harvest plan, any trees considered unsafe are to be removed by the contractor, which Mr Coote, the appellant, acknowledged he was aware of, and time after time he acknowledged he had that right of it.  As your Honour Justice Kirby has correctly pointed out, the expert witness from the appellant and the expert witness from the respondent, both said words to the effect that it was the responsibility of the contractor, the person on the ground.  I may be overstating it when I talk about the respondent’s expert, but he certainly said things unhelpful to the appellant’s case.

KIRBY J:   Mr Rigby said the final call is for the feller, but the argument against you is that that is a final call within a paradigm of an unusual felling plan which, by the terms of the forest plan and by the action of Mr Johnstone in going up, and it is suggested the production targets, was unusual in that they were differentiating the saw log trees and the pulp trees and this was a case where the strategy of clearing which was the one that Mr Coote was most familiar with was not being pursued.

MR CURTAIN:    There are a couple of things about that.  First of all, it might be Mr Coote would prefer – his job would certainly be easier if he could clear fell, but one suspects those days are gone.  Secondly, there is reason, environmentally, for not doing it that way.  But when Mr Coote is asked what he means by it being weird or unusual at page 70, line 39, he said:

Well it sort of said it’s to be treated as over storey removal in a shelter wood operation, which means basically you take, you know, that’s basically like a retention regrowth type situation but it wasn’t that at all, it was a purely saw log only operation.

Well, it was not ‑ ‑ ‑

KIRBY J:   Now, read that differently:

but it wasn’t that –

an environmentally friendly clearance –

at all, it was a purely saw log only operation.

MR CURTAIN:    I agree with that.  I had not meant to differentiate ‑ ‑ ‑

KIRBY J:   No, I know, but that is what I took that to mean.  This was unusual, this was saw log only and presumably it was because there was this separate contractor who was coming in, no doubt for separate contractors down the line, to take pulp trees, as distinct from saw log trees which would be more valuable.  Saw log trees would have a greater value than mere pulp trees.

MR CURTAIN:    The unusual aspect of it is not that it is a saw log only operation, but it is an operation intended to maximise saw logs.  Mr Coote is wrong about that when he says that.  In fact, as it turns out, almost 50 per cent of the trees removed for pulpwood and that is in the evidence at page 420.  I think the appellant gave that evidence himself, but if you have look at the timber harvesting plan at page 420 – and it is imperfectly reproduced – but if you have a look at the fourth box from the bottom you will see clearly typed “Operation description” “Overstorey Removal” “2  Shelterwood – First cut”, then lower down it has the word “2850”.  That is “Sawlog (cu. m/t):  2850” and “Pulpwood (cu. m/t):  3000”.  So they are only 5 per cent or something different.

HEYDON J:   This is all clear on page 334.

MR CURTAIN:    Thank you, your Honour.  I do not think that matters too much.

GLEESON CJ:   Mr Curtain, did the saw logs and the pulpwood have a different destination?  The saw logs presumably would go for milling to a timber mill?

MR CURTAIN:    That is right.

GLEESON CJ:   Would the pulpwood go somewhere different?

MR CURTAIN:    I think it goes to Japan, your Honour.  I think the evidence says it goes to Japan.  I will get the ‑ ‑ ‑

GLEESON CJ:   Does that mean that it would be undesirable to knock down pulpwood unnecessarily because the people who are going to transport the timber that had been felled wanted so far as possible to transport only saw logs because their destination was only going to deal with saw logs?

MR CURTAIN:    I do not know the answer.

GLEESON CJ:   The alternative, presumably, would have been to leave the pulpwood lying around the ground if it were felled.

MR CURTAIN:    I do not know the answer to that.  Of course, your Honour, a saw log tree is one that has more than 50 per cent saw log in it, but it has pulp in it.  So there are obviously value judgments about those things, in any event.  We say it does ‑ ‑ ‑

KIRBY J:   I get an impression that a saw log tree is like Senior Counsel/Queen’s Counsel whereas the pulp is down like an articled clerk or a judge’s associate.

MR CURTAIN:   I hate to disagree with any proposition elevating Senior Counsel, your Honour.  The evidence discloses that the tree that is the offending tree is at page 451.  I cannot turn to the transcript about that, but I will be able to point it out.  You will see on photograph B there, under the B, there is a finer Senior Counsel type of tree which will be a saw log, and to the right of that there is a tree that seems to lean a bit and disappear behind another tree, and I think the plaintiff said that was the pulpwood tree that he brushed.  But you will see that the beauty of the saw log tree is it is long and straight, not gnarled, and has a long barrel.

GLEESON CJ:   Well, it is for milling and the other is for pulping.

MR CURTAIN:   Yes, that is right, and of course the crowns of saw logs were pulped anyway.  I am instructed that the pulp trees were left for two reasons:  one, dependent on the market, they would harvest them at the most financially opportune time; and secondly, they could be left for environmental purposes to give protection to the growing trees.

KIRBY J:   But it was only temporary environmental protection because they were destined for the pulping anyway within a short time, as tree growing goes.

MR CURTAIN:   As most trees seem to be, your Honour.  So we get back to the conversations between Mr Johnstone and the appellant and when your Honour the Chief Justice, if I may say so, correctly said that a lot of his evidence was what he understood the instruction to be rather than what the instructions were, when one goes through the instructions Mr Johnstone is never said to have told the plaintiff never to take out pulp trees, and Mr Johnstone – excuse me - Mr Coote did not say he was told – he did not take out the tree that caused him injury because of an instruction to maximise saw logs or not to take out trees he was only going to brush.  He says directly that he did not take out that tree because he was told not to remove pulp trees.  I will give your Honour the reference for that – I am sorry, I do not have it here - but he specifically gave that explanation for it.

HAYNE J:   Page 81, line 40 through to 82, line 5.

MR CURTAIN:   Yes, but he was asked why he did not fell that tree and I am sure I have it here – and I am afraid I have too many notes.  I will come back to that, if I may.

GLEESON CJ:   Mr Curtain, I think you said a little time ago that what in fact decided this case was the Court of Appeal’s rejection of the primary judge’s critical finding of fact.  Is that rejection on your case to be found in paragraph 57?  The key sentence in the reasoning of the Court of Appeal, as I understand it, is in the first sentence of paragraph 57, although attention so far seems to have been concentrated on 56.  The Court of Appeal seems to have found as a fact – and I take this to be contrary to what the trial judge found – that the reason the appellant did not cut down the tree that he brushed was not because of any instruction that he had been given by Mr Johnstone, but because of his own personal judgment or assessment about the level of danger posed by that tree.

MR CURTAIN:   That is right.

GLEESON CJ:   Whether the decision of the Court of Appeal was right or wrong, that seems to be the factual basis on which it stands or falls.

MR CURTAIN:   That is right, and my learned friend said yesterday this man was not stupid, and we do not say Mr Coote was stupid.  What befell him was tragic and no one would have anything but great sympathy for him.  But the fact is that as an experienced tree feller, knowing that he had brushed this tree in a way that the experts say was more than brushing, no matter what word one wants to use, it is likely to have broken green limbs, he then within 20 minutes walked under it and was operating a chainsaw cutting up the tree that he had fallen, or felled, in circumstances where he is in a position where he puts himself in the most grievous of danger.

HEYDON J:   But you are drifting into 100 per cent contributory negligence as distinct from ‑ ‑ ‑

MR CURTAIN:   I am saying, your Honour, that ‑ ‑ ‑

HEYDON J:    ‑ ‑ ‑ the position in relation to the tree.

MR CURTAIN:   I am sorry, your Honour.

HEYDON J:   You are talking about an error of judgment on his part shortly before the branch hit him, as distinct from an error of judgment on his part in deciding what to do about the tree that was left standing 20 minutes earlier.

MR CURTAIN:   With respect, what I am saying is that my learned friend has put it too favourably to the appellant when he said he dismissed the proposition that it may have been through negligence, or stupidity, the word my learned friend used, when it is clear that he made a grave mistake, a grave error of judgment in going under the widow maker knowing that there were green limbs broken.

GLEESON CJ:   But there is an anterior question.  The Court of Appeal, rightly or wrongly, found as a fact that the decision to leave the tree standing was not the consequence of any instruction he received or any pressure he was under from Johnstone, but a consequence of his own assessment of the level of danger posed by the tree.

MR CURTAIN:   I agree.

GLEESON CJ:   That appears from the first sentence of paragraph 57.

MR CURTAIN:   I agree with your Honour, but I say I am not really focusing on what he did afterwards but I am saying if he was capable of making the mistake that he made going under the tree, why could he not be found, as against what Mr Ruskin urges, to have made a similar error, a similarly serious error, in judging that the tree was safe to only brush rather than to fell before he felled the two saw log trees.

KIRBY J:   Well, he said, and the primary judge accepted him, that he made that earlier decision conformably to a forest plan as implemented by your client that was not the one that he was used to, that it was unusual, it was enforced by Mr Johnstone’s visit, it is confirmed by the terms of the forest plan, and that was in part at least for the economic benefit of your client to concentrate on saw log timber and to leave the other pulp timber to another and later date, and that is really what it comes down to.  Was it open to the primary judge to make that conclusion?  Now, there are words there in the words of the plaintiff that do appear to support that, and then you have to somehow displace the acceptance by the primary judge of that conclusion in the terms that he expressed it.

MR CURTAIN:   Could I repeat that the primary judge exculpated the plan.  He specifically found that the allegations of negligence involved in the plan are not substantiated.  So it is not the plan that is implicated, and we are left then with the conversations between Johnstone and the appellant.

KIRBY J:   No, but the plan is said to be consistent with his statement of what Mr Johnstone was saying to him.

MR CURTAIN:   But the plan says – I accept what your Honour has said and I am not – I want to go back to this.  The plan specifically says any trees considered unsafe are to be removed by the contractor.

KIRBY J:   It does, but he says that was to be read in the light of the, as it were, elaboration, clarification of that statement that he was really to concentrate on the saw log timber and, in effect, only to take down a pulp tree if it was directly in the way.

MR CURTAIN:   Yes, and he perceived it to take down only a pulp tree that was directly in his way because he never said he was told that, and there is nothing wrong with saying, “Concentrate on saw logs”.  He might be told on another occasion, “Concentrate on pulp trees”.  It is a matter of everyday practice and, as the expert said, nothing particularly unusual about that.  Mr Johnstone said there was nothing unusual about that and he was not cross‑examined about that at all.  His evidence about that seems to have been accepted by the appellant.  So we are left with what he did say, and Mr Coote’s evidence about what he did say is so scant that it could not be said by any reasonable listener to amount to an admonition that he was not to take pulp trees that posed a danger to him.

GLEESON CJ:   Mr Curtain, I would like to understand a little better than I do the first sentence in paragraph 57 on page 509.  What is meant by the statement that the assessment of the danger was made “in the light of the instruction that this was a sawlog operation”?  What was the relevance of the fact that this was a saw log operation to an assessment of the level of danger posed by leaving the pulpwood tree standing?

MR CURTAIN:   I do not know the answer to that.  It could be said that it might mean that Mr Coote understood that a saw log operation meant “remove less pulp trees if you can”, but ‑ ‑ ‑

GLEESON CJ:   It does seem to reflect a view, does it not, that the assessment of sufficient danger to justify removal of the pulpwood tree was to take account of the fact that this was a saw log operation, which is only another way of saying, is it not, you would remove fewer pulpwood trees on grounds of danger than you would if this were a different kind of operation?

MR CURTAIN:   Yes.

GLEESON CJ:   Right.  Well, having got that far, what kind of dangerous pulpwood tree would you leave standing in a saw log operation that you would not leave standing in a different kind of operation?

MR CURTAIN:   None, because the adjective that your Honour the Chief Justice puts in front of it means that it should be removed.  That is the basic admonition.  Anybody knows – anybody who has ever been involved in the timber industry knows that widow makers are a great source of danger and often mortality, apart from injury, and Mr Coote knew that and Mr Johnstone knew and Mr Coote said time after time, “I knew I had the right to remove any tree that posed a danger”.

KIRBY J:   But it comes down to a very small point.  Was it open to the primary judge to conclude in the light of what was said and his drawing of inferences from what was said that that overriding entitlement was shackled by the nature of this as a saw log operation and by the admonition not to take down the pulp now because that was going to be done later.

MR CURTAIN:   Yes, your Honour.  I agree with that.  It does come down to a very small point.  What I was going to say was that it is such an important part of felling that widow makers can kill or seriously injure tree fellers and others working around ‑ ‑ ‑

KIRBY J:   That cuts both ways, though.  If you are the timber operator or the timber inspector or whatever he was working for Forestry Tasmania, because they are widow makers and because it is dangerous it may be said that Mr Johnstone should have made it clear that, of course, this is subject to there being any risk at all because it is pretty clear according to the evidence of the appellant that he took it to mean that he was to do this in a somewhat different and unusual way and not to take down the pulp trees but to leave them as far as he could for the future and on this occasion he made an error of judgment which sounds in contributory negligence but not in removing any liability on your part because that is essentially what you are arguing.  No liability at all.

MR CURTAIN:   The learned trial judge found what Mr Johnstone was was guilty of omission not commission.  It was what he failed to instruct and failed to supervise that founded the tort.  So he really did not accept that what Mr Johnstone said constituted an admonition not to knock the pulp trees over or to fell the pulp tree but he should have supervised the appellant and instructed him and that is clear from paragraph 33 of his reasons ‑ ‑ ‑

HAYNE J:   If you take 33 and read it divorced from everything else I can understand that.  What do you say to the contention which lies at the heart of your opponent’s case that 33 is to be understood in the light of what is said in paragraph 11.

MR CURTAIN:   Well, I agree that ‑ ‑ ‑

HAYNE J:   The failure to instruct relevantly is the obverse of the particular instruction given.

MR CURTAIN:   Yes.  I accept what your Honour says about that, that it should be read in the context of that and perhaps what the learned trial judge was doing was tying it to the particulars of negligence but ‑ ‑ ‑

HAYNE J:   Now, do I understand as a matter of fact that widow makers are a particular problem in the case of trees that have been brushed?

MR CURTAIN:   Yes, because ‑ ‑ ‑

HAYNE J:   It is not the whole of the problem but it is the problem at its most acute.

MR CURTAIN:   It is because when they are brushed the tree remains standing and limbs which are 30 or 40 feet high remain up there.  They are usually the size of an arm in inches in diameter and when they fall they fall with great force and they cannot be seen readily in the canopy.  Mr Coote knew that and time after time he said he knew about it, he said he did not need to be instructed, he did not need to be supervised, and when you look at the evidence of what he said he was told, given the notorious danger of widow makers, for there to be an oral overriding of the written instructions together with the conceded advice he did get from Mr Johnstone, if a tree was a problem he had the right to take it out, and his knowledge of that in any event, anything which was going to be said to him to override those, for him to have the perception he said he did must have been in the clearest terms or should have been in the clearest terms and it was not. 

When one trawls through the evidence my learned friend says that page 127 is the height of the appellant’s case, but when one looks at that the answer Mr Coote gives to the next question is that Mr Johnstone did not say those words.

KIRBY J:   I think we have the problem now and as you say it is quite a narrow problem.  It is just going to be a matter of looking through the transcript and coming to a conclusion ‑ ‑ ‑

MR CURTAIN:   There are a couple of other matters that I want to deal with.  One is that Mr Rigby said that it is not right to describe what Mr Coote described as just brushing.  A point is made in the reply that Mr Rigby was not there.  Of course he was not there but what was put to him was a summary of what the appellant had said about it and Mr Rigby, the expert called on behalf of the plaintiff, said, “That is not brushing”.

KIRBY J:   You make a number of powerful points in your submissions about Mr Rigby’s evidence.

MR CURTAIN:   We do and we say that for that - and he had the same sort of knowledge as the appellant had.  The appellant was very experienced.  For there to be an overriding of the written mandate - and what we would say was rule number 1 for survival for tree fellers you would need to find a lot more than is found in the evidence of Mr Coote.  Mr Johnstone’s evidence was not tested about that and we say that was a forensic tactic, without doubt.  We also, if I could deal with the Browne v Dunn point, so-called, we respectfully submit that there was really nothing in Mr Coote’s evidence that needed much of a challenge because his evidence was amorphus, because it was mind reading, rather than direct evidence of what was said.

GLEESON CJ:   The cross‑examiner actually framed the question in terms of the particulars of negligence.

MR CURTAIN:   But he was not the only guilty party, your Honour.  The examiner did the same to a degree.

KIRBY J:   Yes, I would not criticise either side in this matter.

MR CURTAIN:   I accept that.  I accept that, but what the learned ‑ ‑ ‑

KIRBY J:   If we push Browne v Dunn too far it becomes absolutely formalistic.

GLEESON CJ:   You cannot criticise counsel.  I mean, if you were going to criticise counsel for anything, you would criticise him for not putting the particulars of negligence to the witness.

MR CURTAIN:   Yes, your Honour.  Now, I just have not turned up that page which says he did not fall it because he was instructed not to and I want to do that before I sit down, if I may.  I apologise for not having it.

HEYDON J:   Do you want to say anything about section 8 and section 21, is it?  The appellant argues that, in effect, it was imperative to follow Mr Johnstone because it would be a criminal offence not to or something attracting a penalty if it were not done.

MR CURTAIN:   We do not accept that and we say that there is no doubt that if Mr Coote was given instructions by Mr Johnstone, he should have obeyed them and if he did that and they were negligently given we would accept responsibility.  We do not need to get into anything more sophisticated than that.  But we do say that it is relevant that Mr Coote, not only did he not challenge anything Mr Johnstone said, but he never raised it with his employer or anyone else.  My learned friend also relies on the report that is contained at page 425 as evidence that Mr Johnstone should have known that the appellant was not felling trees in the way he should have done.  He says that the forest operations report is evidence of that. 

I want to point out that that forest operation report was generated by North which was a party placed between the appellant and the respondent contractually.  Secondly, it was signed by Mr Bramich at page 425, line 35, an officer of the appellant’s contracting party.  It may be evidence of negligence by them, and there was obviously an apprehension of that because those parties settled up with the appellant, but it is not evidence again my client.  You will see under the first box on page 424:

(A “No” answer requires a comment and/or a follow up action within a specified time frame).

On page 425, question 21 is elaborated on in comment because that is a “No” and my learned friend points this out to this Court:

Damage extensive due to falling prescription.  Some trees potentially dangerous.

Action by:

Will be addressed by Dale Bramich by end of this week.

That is a week in August.  The report is dated 25 August.  One would expect then that that action will have been addressed by about two weeks before this incident occurred and we respectfully submit it could not be used in those circumstances as any evidence of Mr Johnstone’s knowledge of what Mr Coote was doing, if he was, as a general rule.

KIRBY J:   If you cannot find that evidentiary note now, I have no doubt you can send it in to the Court.  I have been looking for it and I cannot find it.  If you can find it ‑ ‑ ‑

MR CURTAIN:   I will find it before I leave here and I will communicate it to the associate.  I do apologise.

KIRBY J:   If the Chief Justice agrees, I am sure that can be done.

MR CURTAIN:   I would seek that indulgence from the Court and I will point it out to my learned friends, of course.

GLEESON CJ:   Yes, certainly.

KIRBY J:   Can I ask, what happens about – assuming that the appeal is allowed, the trial judge has not dealt with damages?

MR CURTAIN:   That is right.

KIRBY J:   So it has to go back to somebody for that to be determined?

MR CURTAIN:   Yes.

KIRBY J:   The issue of liability was just severed, was it?

MR CURTAIN:   Yes.

GLEESON CJ:   The Court of Appeal has not dealt with contributory negligence?

MR CURTAIN:   No, it did not.

KIRBY J:   Chief Justice Underwood says in the light of his conclusion on the primary ground he did not have to deal with the other grounds.  Can we take it that the other grounds do not have to be dealt with?  I am just trying to clarify what is to happen?

MR CURTAIN:   I take it your Honour is talking about contributory negligence in that regard?

KIRBY J:   Yes.

MR CURTAIN:   If there was a finding by this Court that the appeal should succeed, then the question of contributory negligence remains to be dealt with and it would go back to the Full Court to be dealt ‑ ‑ ‑

GLEESON CJ:   It seems to be common ground between the parties that if the appeal succeeds it has to go back to the Full Court to deal with contributory negligence.

MR RUSKIN:   We did not address it, I understand, in the order, your Honour, but it seems logical that that would have to happen because for the obvious reason they did not deal with it.

GLEESON CJ:   Yes, thank you.

MR CURTAIN:   Unless there are any further questions from the Court, they are the submissions on behalf of the respondent.

GLEESON CJ:   Thank you, Mr Curtain.  Yes, Mr Ruskin?

MR RUSKIN:   Thank you, your Honour.  In relation to the 127 piece of transcript about the “I was told by Peter Johnstone”, it would be quite reasonable and open to the trial judge not to interpret this exchange in the way the respondent says, rather, all that is being said is that the appellant is not in a position to recall the verba ipsissima.

KIRBY J:   Yes, we understand that.

MR RUSKIN:   Therefore, if that is correct, then ‑ ‑ ‑

KIRBY J:   This was a very unusual litigant or witness.  He just would not go along with our way of doing things.

MR RUSKIN:   No, and all that means is therefore there was evidence that whether he used the word “barrelling” or whether he used the words “striking in front” or whether he used the same expression about the snigging, hitting and falling, he said it and it was open to the judge to say that.

GLEESON CJ:   Mr Ruskin, you opened this appeal by saying the critical error is that contained in the third sentence of paragraph 56. 

MR RUSKIN:   Yes.

GLEESON CJ:   A possible point of view is that the key sentence in the reasoning of the Full Court is that in the first sentence of paragraph 57.

MR RUSKIN:   Yes, we accept that, your Honour, and we say that is an error in two ways.  First, it is difficult to understand, but if it is saying – its problem is it ignores Johnstone altogether, but it does not say it does.  It does not sit happily with what is in 48.  What we submit Justice Hayne is correct about, that is, that there is a concurrent finding about Johnstone giving the direction to the effect he was not to fell the tree as he normally would, that is a concurrent finding.  The reservation is in respect of another aspect.  But 57 does not sit happily with 48. 

The second problem with it is it suffers from a Thompson v Woolworths defect, that is, even if it was correct, and there does not seem to be any evidence to justify this line, but even if it was, it does not replace the finding at 48 which says Johnstone directed him not to do it in the way that he normally would.  Step two, he would normally remove this pulp tree.  That is the respondent’s responsibility.  If somehow there is an error of judgment, then that does not defeat the major claim.  Justice Thompson said it did not.  But where is the error of judgment?  There was not an error of judgment about potentially to lie.  He knew it was potentially dangerous.  But to know it is one thing, but he was prevented from doing it.  That was his whole case.

GLEESON CJ:   The problem is that there are degrees of danger and that sentence in paragraph 57 seems to proceed on the basis that in a saw log operation a higher degree of danger might be acceptable than in a clear felling operation, but the reasoning seems to be that ultimately it was for your client uninhibited by any instructions he was given from Johnstone to decide tree by tree whether there was sufficient danger to remove it.

MR RUSKIN:   The difficulty with it is that there was evidence from the appellant which has not been dealt with here that said, “Well, if I did it that way I would cut down every pulp tree.  I would cut down numerous pulp trees”, which is not consistent with the plan.  But it may be that the real answer is that it is very difficult to unravel the sentence.  It is, we submit, not supported by the evidence and is inconsistent with 48 and Thompson.  That is really what we have to say about that. 

Your Honour, the next point is the Rigby point.  Rigby was the expert, but when he said, “You are the man at the coalface”, that cross‑examination did not include the ingredient, “But what if your forest officer was telling you to do it in a particular way?”  The cross‑examination was all about that general thing that barristers love which is to ask general questions, “Now, you are at the coalface, you can cut things down”, and so forth and so forth, but the ingredient that changed this picture was the involvement of the forest officer and his powers.  The third point is that there was a reference to the ratio at 232, the ratio of log and sawmills.  The witness of the respondent at 232, Mr Howard, said this of ratio at the bottom of 231:

And if you look there also in that box, you’ll see “total expected” and you’ll see “saw logs, two thousand eight hundred and fifty cubic metres, and pulp wood, three thousand cubic metres”…..Yes, I can see that.

Can you make any comment as to that?........That is a very high percentage of saw log in comparison with pulp wood.

Yes……..For the majority of coupes in Tasmania anywhere.

Then we respectfully say Justice Kirby has dealt with the argument that the plan was exculpated in some way - the raw argument that it was an unreasonable plan was not made out, but it was part of a stratum of fact which gave rise to the problem in the case.  Those are our submissions in reply.

GLEESON CJ:   Thank you, Mr Ruskin.

MR CURTAIN:   Before the Court rises?

GLEESON CJ:   Yes, Mr Curtain.

MR CURTAIN:   If I could interrupt.  I am not seeking another go, but could I just take the Court’s attention to page 148 about line 35.  The appellant is being asked in cross‑examination – there is other discussion but it is about the tree, the subject of this claim:

So to get rid of this tree – it posed a danger to you, and it wasn’t safe enough to cut it down – you could have used – or had somebody use the excavator and bring it down……..No.  Before I felled the two saw logs, I could have fell it.

Yes……..But because I wasn’t allowed to take pulp willy nilly, I couldn’t take it.

And over the page 149, line 5:

Was there anything physically to prevent you cutting down that saw tree – sorry, the pulp tree, before you felled the pulp trees? 

There is some transposition, but I am sure the Court knows what he means:

Was there anything stopping me?

Yes……..No.  Only the fact that I wasn’t allowed to fall pulp trees.

So he puts it not that it was not much of a danger, but there he says he did not do it because he was told not to fall pulp trees simpliciter.  Thank you, your Honour.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn until 10.15 am on Tuesday, 4 April in Canberra.

AT 11.49 AM THE MATTER WAS ADJOURNED