Forestry Tasmania v Coote
[2005] TASSC 17
•23 March 2005
[2005] TASSC 17
CITATION: Forestry Tasmania v Coote [2005] TASSC 17
PARTIES: FORESTRY TASMANIA
v
COOTE, Graham
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 64/2004
DELIVERED ON: 23 March 2005
DELIVERED AT: Hobart
HEARING DATES: 1, 2 September, 2 November 2004
JUDGMENT OF: Underwood CJ, Crawford and Evans JJ
CATCHWORDS:
Torts – Negligence – Essentials of action for negligence – Duty of care – Special relationships and duties – Government and public authorities – Exercise of statutory power – Circumstances in which duty will arise.
Forestry Act 1920 (Tas), s8(1)(c).
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; Benning v Wong (1969) 122 CLR 249; Sutherland Shire Council v Heyman (1985) 157 CLR 424, applied.
Fisher v Ruislip-Northwood Urban District Council and Middlesex County Council [1945] KB 584, followed.
Aust Dig Torts [37]
Torts – Negligence – Essentials of action for negligence – Standard of care – Particular persons and situations – In the case of very experienced tree feller.
Aust Dig Torts [37]
REPRESENTATION:
Counsel:
Appellant: D J Gunson SC
Respondent: K E Read
Solicitors:
Appellant: Gunson Williams
Respondent: Hilliard & Associates
Judgment Number: [2005] TASSC 17
Number of Paragraphs: 73
Serial No 17/2005
File No FCA 64/2004
FORESTRY TASMANIA v GRAHAM COOTE
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD CJ
CRAWFORD J
EVANS J
23 March 2005
Orders of the Court
Appeal allowed.
Judgment dated 7 July 2004 is set aside and in lieu thereof it is ordered that judgment be entered for the appellant against the respondent.
Serial No 17/2005
File No FCA 64/2004
FORESTRY TASMANIA v GRAHAM COOTE
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD CJ
23 March 2005
Introduction
The respondent to this appeal was injured on 14 September 1998. His injuries were so severe that he is now a paraplegic. He was a very experienced tree feller. On the day of his accident, he was working in a logging coupe in a State forest at Roses Tier in northern Tasmania. He had just felled two sawlog trees both of which brushed another tree as they came down. After he had trimmed the sawlog trees, he walked under the tree that had been brushed and a branch fell from it and hit him.
The respondent commenced proceedings for damages against A R & G R Padgett Pty Ltd, Wesley Vale Engineering Pty Ltd, Forestry Tasmania, and the State of Tasmania.
· Proceedings against the State of Tasmania were discontinued at an early stage.
· Forestry Tasmania is a statutory corporation established by the Forestry Act 1920, ("the Act") s6(1). Its statutory duty is to manage forest land. It had entered into a contract with North Broken Hill Ltd, which entitled the latter to take timber from certain areas of State forests upon payment of royalties.
· North Broken Hill Ltd assigned its rights under the contract to Wesley Vale Engineering Pty Ltd.
· Wesley Vale Engineering Pty Ltd engaged A R & G R Padgett Pty Ltd to harvest timber from the coupe where the plaintiff was injured.
· A R & G R Padgett Pty Ltd engaged the respondent to fell the trees in the coupe.
Each of the three defendants issued notices of contribution against the other defendants. An order was made that the issue of liability be tried before the issue of damages. Before that trial began, the plaintiff settled his claim against A R & G R Padgett Pty Ltd and Wesley Vale Engineering Pty Ltd. The trial commenced on 23 April 2004. By virtue of the Wrongs Act 1954, s3(3), the issues for determination were:
· whether Forestry Tasmania is liable to pay the plaintiff damages and, if yes;
· whether there was contributory negligence on the part of the plaintiff;
· whether A R & G R Padgett Pty Ltd would have been liable to make a contribution to Forestry Tasmania;
· whether Wesley Vale Engineering Pty Ltd would have been liable to make a contribution to Forestry Tasmania;
· what apportionment of liability is just and equitable, having regard to the extent of each defendant's responsibility for the loss, injury and damage.
With respect to those issues, the learned trial judge found that:
· Forestry Tasmania was in breach of a duty of care it owed the plaintiff;
· the plaintiff's damages be reduced by one-sixth (16.6 per cent);
· A R & G R Padgett Pty Ltd would have been liable to contribute two-fifths (40 per cent) of the judgment sum against Forestry Tasmania;
· Wesley Vale Engineering Pty Ltd would not have been liable to contribute to the judgment sum against Forestry Tasmania.
In short, the learned trial judge ordered that the plaintiff recover damages against Forestry Tasmania, that such damages be reduced by one-sixth for contributory negligence and that for the purposes of the Wrongs Act, s3(3), A R & G R Padgett Pty Ltd would have been liable to contribute 40 per cent of the judgment.
The appeal to this Court
The appellant, Forestry Tasmania, has appealed against the whole of the judgment. There are eight grounds of appeal. In summary, the effect of the grounds are:
· the learned trial judge erred in finding that the appellant owed the respondent a duty of care;
· the learned trial judge erred in finding that the appellant was in breach of a duty of care;
· the learned trial judge made three erroneous findings of fact;
· the apportionment of contributory negligence and the apportionment as between defendants was erroneous.
A duty of care?
The Act, s8(1), confers functions upon the appellant. At the relevant time, subs(1)(c) provided that those functions include:
"(c) the exclusive management and control of ¾
(i) all State forest and, if the Director-General of Lands consents, forests on other Crown land; and
(ii) all forest products on State forest and, if the Director-General of Lands consents, on other Crown land including the processing, removal, selling or other disposition of those forest products; and
(iii) the establishment and tending of forests, and all forest operations, on State forest and, if the Director-General of Lands consents, on other Crown land; and
(iv) the granting of all permits, licences, forest leases and other occupation rights, and the making of all contracts of sale, under this Act;"
At the time of the respondent's accident, the Act, s12X, established the Forest Practices Board. It provided that the Board was a division of the appellant. The Forest Practices Act 1985 ("the Practices Act"), s4A, provided that the Board would consist of the Secretary of the responsible department, the director of Private Forests Tasmania and two directors of the appellant. Both the Act and the Practices Act have been extensively amended since the day of the respondent's accident, but I shall only refer to their provisions as enacted on that day, and accordingly, use the past tense. The Board's functions were prescribed by the Practices Act, s4C. They included the issue and maintenance of a Forest Practices Code, the oversight of standards for timber harvesting plans, the giving of advice to the Minister, and so on. The Practices Act, Pt3, Div1, dealt with timber harvesting plans. It was an offence to harvest timber other than in accordance with an approved timber harvesting plan. The Practices Act, s18, provided that anybody could prepare a plan and make an application to the Forest Practices Board for its approval. Subsection (2) made provision for the content of the plan. The Practices Act, s19, empowered the Board to approve, to refuse to approve, or to amend a plan.
The plan for the coupe in which the respondent was injured was prepared by Mr Peter Williams. The plan was approved on 16 August 1998 by a Mr M J Smith. There was evidence that both men were employees of the appellant. On the plan Mr Smith is described as a Forest Practices Officer. Neither Mr Williams nor Mr Smith gave evidence.
It appears that the terms of the plan were somewhat unusual. The felling prescription provided:
"(3) FELLING (See also – Conservation and Other Values section)
· 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. These trees retained are to be pulpwood quality.
· Category 2 & 8 sawlogs are to be maximised if markets exist.
· Remaining head logs are to be sold for pulp, however the aim of this operation is maximise sawlog production and minimise pulpwood.
· Sections that are high in pulpwood are not to be logged. These areas are to be treated at future harvesting operations.
· Direction from a Forest Officer will be supplied to help with selection.
· Habitat clumps are to be retained in high pulpwood sections.
· All trees that are considered to be un-safe by the contractor are to be removed.
· Sections of thinning areas to be excluded from logging are marked on the attached map, the Forest Officer will identify these patches to the faller. No falling of trees out of these areas.
· All regrowth of good form and vigour up to 60cm DBHOB will be retained where possible."
Evidence from expert forestry officers was to the effect that overstorey removal is a reference to the removal of larger trees, leaving the regrowth standing. Shelterwood is a reference to leaving the taller trees to provide seeds and shelter for seedlings and young trees. Apparently they are methods of logging often used in high areas such as the coupe in which the respondent was injured, because the seedlings struggle to survive in the snow and high winds. The reference to sawlogs or saw trees is, of course, a reference to trees, the timber from which can be used for building material. These logs are more valuable than logs that are only suitable for pulping. The evidence was to the effect that many trees comprise in part sawlog and in part, pulpwood.
The evidence was that "overstorey removal/shelterwood operation" was a common method of logging and one with which the respondent was familiar. The sawlog production prescribed by the plan was 2,850 cubic metres and the expected pulpwood production was 3,000 cubic metres which, as the learned trial judge found, represented an unusually high proportion of sawlogs to pulp logs. Although the objective of most logging operations is to maximise the valuable sawlogs, this plan was unusual to the extent that the proportion of sawlogs to be taken was very high compared to the proportion of pulp logs. This plan required the feller to leave a lot of the pulpwood standing.
The evidence was that the respondent knew that before felling a sawlog tree, a feller should consider where he could drop the tree. If he could not avoid the sawlog smashing into another tree as it came down, he should fell that other first so that it was out of the way. Not to do so would leave the tree smashed into unstable and dangerous. The plan envisaged the respondent felling as many sawlogs as he could in proportion to the pulpwood. This required an exercise of judgment on the part of the respondent. If a tree could be dropped so that it only lightly brushed another tree, the other tree need not be taken first unless the feller thought that the brushing might be so violent that it would make the other tree unstable. In his evidence, the respondent said that just before "smoko" on the day of his accident, he decided to drop two sawlog trees. He decided that he could drop both of them in a gap, but in doing so would be likely to brush another tree that he believed was a pulpwood tree. He said that he would have liked to have taken this tree out, but because he believed that he could not take pulpwood because of the terms of the timber harvesting plan and oral directions given him, he left it standing. The respondent felled the two sawlog trees. As they came down, both brushed the tree as he had anticipated they would. This was the tree from which the branch dropped and caused the respondent's injuries. The respondent does not remember the branch falling on him. He said that after he had felled the two trees, he trimmed them and called for the skidder to remove them. This was done. The respondent sharpened his saw and then walked forward to fell another tree when the branch fell on him. The danger inherent in maximising sawlog production is recognised by the line in the felling prescription in the plan that provides:
"All trees that are considered to be unsafe by the contractor are to be removed".
Mr Peter Johnstone was a senior forestry officer (harvesting) employed by the appellant. Within a few days of the commencement of logging, Mr Johnstone went to the coupe and discussed the plan with the respondent. Mr Johnstone told the respondent what sort of trees he should be felling. Contrary to the evidence of the respondent, to which I shall refer in more detail later, Mr Johnstone said that he did not direct the respondent not to cut pulpwood trees. For the purpose of considering whether the appellant owed the respondent a duty of care, it suffices to note that Mr Johnstone visited the coupe regularly and saw it as his function to exercise the powers conferred on a forest officer by the plan and the Act.
In his reasons for judgment, the learned trial judge discussed the evidence and made a number of findings of fact. He then turned to the causes of action pleaded against the parties. With respect to the issue of a duty of care, his Honour set out the provisions of the Act, s8(1)(c), at par25, and continued at pars 26–27:
"Subject to the provisions of the timber harvesting plan, I think that s8(1)(c) gave the third defendant the power to control the way in which the plaintiff did his work as a faller in a State forest. Although there was certainly no employment relationship between them, I think the third defendant had about as much power to control how the plaintiff did his work as an employer has to control how its employees do their work. The third defendant was able to exercise that power of control by sending Mr Johnstone to supervise and direct the plaintiff's work. Officers of the third defendant were well aware that harvesting operations were being undertaken in the area of State forest where the plaintiff was injured. Timber harvesting operations involve risks not only of injuries being caused as the harvested trees fall, but also of injuries being caused when severed branches later fall from trees. Such branches are known in the forest industry as 'widow makers'. It follows that it was reasonably foreseeable on the part of the third defendant that someone involved in felling trees in the course of the harvesting operations in question might be injured if reasonable care was not taken in the carrying out of those operations, and in the third defendant's supervision, management and control of them.
There are a number of recent High Court decisions as to when a duty of care is owed for the purposes of the law of negligence, none of which contains a precise definition of the circumstances that will or will not give rise to a duty of care. The relevant decisions include PyreneesShire Council v Day (1998) 192 CLR 330; Brodie v Singleton Shire Council (2001) 206 CLR 512; Sullivan v Moody (2001) 207 CLR 562; and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. In my view it is not necessary to discuss any case other than Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1. In that case the High Court held that the Australian Stevedoring Industry Authority had owed a duty of care to waterside workers who had been employed not by it but by various stevedores. That authority had statutory responsibilities for safety on the waterfront, whereas the third defendant has no corresponding safety responsibilities. However I do not think Crimmins should be distinguished on that basis. Both in that case and in this case, it was reasonably foreseeable that, if the statutory authority in question failed to perform its functions with reasonable care, workers would be at risk of suffering injury. Like the authority in Crimmins, the third defendant had or should have had knowledge of the special risks to which workers in the relevant industry were subject, and was in a position to exercise its statutory powers so as to minimise those risks. As in Crimmins, there was nothing in the relevant legislation negativing the existence of a common law duty of care. It must follow that the third defendant owed the plaintiff a duty to take reasonable care for his safety in its supervision, management and control of the timber harvesting operations in which he was engaged."
The appellant attacked that finding. The essence of the attack was that the learned trial judge based his finding that the appellant owed the respondent a duty of care "entirely upon the provisions of Section 8(1)(c) of the Forestry Act". If this is correct, it would, as Mr Gunson SC, counsel for the appellant, contended, impose a very onerous burden on the appellant, viz, the statutory powers of exclusive management and control alone, imposed a duty to take reasonable care not to expose those persons whom the appellant knew or ought to have known were in a State forest to the risk of foreseeable injury. Ground 1 of the notice of appeal provides:
"The learned trial judge erred in law in holding that the Appellant owed the Respondent a duty to take reasonable care for his safety in its supervision of its management and control of the timber harvesting operations in which the Respondent was engaged because of the requirements of Section 8(1)(c) of the Forestry Act 1920."
Ground 1 asserts that the trial judge held that appellant owed the respondent a duty to take reasonable care for his safety in its supervision, management and control of the respondent's timber harvesting operations. That assertion is correct. The ground does not assert that there was error in finding that the appellant owed the respondent a duty of care. It asserts that error occurred in finding that the duty to take reasonable care in such supervision, management and control was because of the requirements of statutory powers conferred on the appellant by the Act, s8(1)(c). That assertion is incorrect. If a person supervises, manages and controls the work of another (and there is a reasonably foreseeable risk of injury), that person will be under a duty of care towards that other, regardless of any statute authorising such conduct and regardless of whether there is a relationship of employer and employee.
Mr Gunson's written submission was that:
· the learned trial judge appeared to concede that absent the Act, s8(1)(c), the appellant would not have owed the respondent a duty of care; and
· "the sole factual basis (sic) for the existence of the duty of care appears to be Section 8(1)(c)."
In his oral submission in support of ground 1 Mr Gunson contended:
· the conferring of control by statute did not confer a duty to take reasonable steps to avoid exposing the respondent, and people in the class to which he belonged, to the risk of foreseeable harm; and
· in any event, relevantly, the Act only empowered control via the medium of a timber harvesting plan.
As I understand the learned trial judge's reasons for judgment, he did not find that the duty of care arose solely out of the provisions of the Act, s8(1)(c). He held that s8(1)(c) authorised the appellant to supervise, manage and control the work of the respondent. He did not find that the right to control conferred by the Act, s8(1)(c), imposed any duty of care, but he did find that the exercise of that right, viz, the "management and control of the timber harvesting operations in which the Respondent was engaged", as asserted in ground 1 of the notice of appeal, did give rise to a duty of care.
It is now well settled that a public authority such as the appellant will be subject to a common law duty of care when exercising a statutory power, unless there is statutory immunity. See Fisher v Ruislip-Northwood Urban District Council and Middlesex County Council [1945] KB 584; Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; Benning v Wong (1969) 122 CLR 249; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 458. In Sutherland Shire Council Brennan J (as he then was) said at 479:
"There is a distinction between a case where the repository of a statutory power does something which creates or increases the risk of foreseeable damage and that damage occurs and a case where a person is able to foresee that damage might occur but does nothing to cause it. In the first case, if he takes no reasonable steps to prevent the occurrence of the damage, he is negligent; in the latter, he is not."
In addition, there is authority to the effect that a statutory corporation may act in such a way that there thereby arises a duty to exercise a power that the corporation has in order to avoid foreseeable injury. See Sutherland Shire Council v Heyman (supra); Pyrenees Shire Council v Day (1998) 192 CLR 330. But currently, the vexed and unsettled question is, under what circumstances will a statutory corporation attract a common law duty of care to exercise one of its statutory powers? Obviously, no duty of care will arise unless it is reasonably foreseeable that there is risk of harm if the power is not exercised. But foreseeability of injury alone is not sufficient to give rise to a duty of care. What more is required was discussed at length in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 and other cases. There seems to be no unanimity on this issue amongst the members of the High Court. The learned trial judge referred to these cases, in particular Crimmins, when he held that the appellant owed the respondent a duty of care. Mr Gunson made lengthy submissions about these cases, but it seems to me that there is no need to examine the various recent views expressed by the members of the High Court about what must be established - vulnerability, reliance, proximity and so on - to give rise to a duty of care by a statutory authority, for all those cases were concerned with nonfeasance. This case was pleaded and conducted upon the basis that the appellant had a statutory power in the Act, s8(1)(c), it exercised that power by preparing and approving the timber harvesting plan and by directing and supervising the respondent's felling. Accordingly, it was the respondent's case that the appellant thereby owed him a duty not to expose him to the risk of foreseeable harm by the exercise of those powers. As the joint judgment of Dixon CJ, McTiernan, Kitto and Taylor JJ made plain in Caledonian Collieries Ltd v Speirs (supra) at 220:
"… the well-settled principle applies that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered; Great Central Railway Co v Hewlett (1916) 2 AC 511, at p 519 ; East Suffolk Rivers Catchment Board v Kent (1941) AC 74, at p 85 ; Cox Bros. (Australia) Ltd v Commissioner of Waterworks (1933) 50 CLR 108, at pp 119, 121)."
Notwithstanding the learned trial judge's reference to Crimmins and the other nonfeasance cases, the following passage at par26 of his reasons for judgment, that I have already set out, makes it clear that he found that a duty of care existed because the appellant exercised a statutory power that it had and it was reasonably foreseeable that unless it was exercised with reasonable care, the respondent was at risk of suffering injury.
"Subject to the provisions of the timber harvesting plan, I think that s8(1)(c) gave the third defendant the power to control the way in which the plaintiff did his work as a faller in a State forest. Although there was certainly no employment relationship between them, I think the third defendant had about as much power to control how the plaintiff did his work as an employer has to control how its employees do their work. The third defendant was able to exercise that power of control by sending Mr Johnstone to supervise and direct the plaintiff's work. Officers of the third defendant were well aware that harvesting operations were being undertaken in the area of State forest where the plaintiff was injured. Timber harvesting operations involve risks not only of injuries being caused as the harvested trees fall, but also of injuries being caused when severed branches later fall from trees. Such branches are known in the forest industry as 'widow makers'. It follows that it was reasonably foreseeable on the part of the third defendant that someone involved in felling trees in the course of the harvesting operations in question might be injured if reasonable care was not taken in the carrying out of those operations, and in the third defendant's supervision, management and control of them."
Ground 1 is not made out and the submissions made in support of it misunderstand the findings and conclusion of his Honour, perhaps because of the reference in the reasons for judgment to cases dealing with a failure to exercise a statutory power in circumstances where it was argued that there was a duty to do so.
Mr Gunson's submission that the Act only empowered control via the medium of a timber harvesting plan cannot be upheld. It was made in support of ground 2 of the notice of appeal. It provides:
"That the learned trial judge erred in law in holding that Section 8(1)(c) of the Forestry Act 1920 gave the appellant the power to control the way in which the respondent performed his work as a tree feller in a State forest."
The Practices Act introduced the concept of timber harvesting plans and created the offence of harvesting other than in accordance with an approved plan. There is no warrant for reading down the very wide powers conferred by the Act, s8(1)(c), because of the provisions of the Practices Act relating to timber harvesting plans. Of course, the appellant could not lawfully direct the respondent to harvest timber contrary to the terms of the timber harvesting plan, but many of the directions in the "Felling" section of the plan are vague, leaving ample scope for the exercise of the general power conferred by the Act, s8(1)(c). In addition, there is a statement in this section of the plan that direction from a Forest Officer with respect to the selection of trees will be supplied. Clearly, there was wide scope for the exercise of the general power conferred by the Act, s8(1)(c), to supervise and control the felling by the respondent. Ground 2 is not made out.
Was there a breach of the duty of care?
Ground 3 of the notice of appeal provides:
"3That his Honour erred in fact and in law in finding that the Appellant was in breach of the duty of care that his Honour found was owed by the Appellant to the Respondent namely that it was negligent in failing to instruct the respondent to fell first any trees that potentially posed a danger in that way and in failing, through supervision, to ensure that the Appellant did so."
Linked to this ground are grounds 4 and 5 which provide:
"4That his Honour erred in fact in finding that Mr Johnstone regularly supervised the Respondent's work and gave him instructions to the effect that he was not to fell pulp trees as readily as he ordinarily would have.
5That his Honour erred in fact in finding that the Respondent's decision not to fell the pulp tree was consistent with obedience to Mr Johnstone's instructions."
In order to understand these grounds, it is necessary to look briefly at the evidence concerning the background of the respondent and the appellant's servant or agent, Mr Peter Johnstone.
The respondent was 37 years old when he suffered his accident. He was born in New Zealand and left school at the age of 14. He immediately started working in the logging industry in the forests of New Zealand. At the age of 18 he was employed as a feller. He has worked as a feller continuously from then until his accident, nearly 20 years later.
In 1985 he and his wife came to Tasmania for a visit. He stayed on to work as a tree feller in this State. In 1987 he started work as a feller for A R & G R Padgett Pty Ltd and, apart from a period of four years when he returned to New Zealand to work as a feller in that country, and a short period when he worked in this State as a feller for Chuggs Logging, he worked for Padgett until his accident in 1998.
For most of the time the respondent worked for Padgett his immediate bush boss was Mr Peter Johnstone. He, too, was a very experienced timber worker. The two men got to know each other well and the evidence makes it clear that each respected the skills and abilities of the other. Mr Johnstone left the employ of Padgett just two months before the respondent's accident. He was appointed a senior officer (harvesting) and a forest practices officer of the appellant. He exercised the appellant's statutory powers of supervision over the coupe in which the respondent was injured.
The following extract from the cross-examination of the respondent demonstrates the extent of his skill and experience:
"You regarded yourself as a competent tree feller didn't you? ... I was – I knew how to fall trees but this particular coupe was a bit of a worry.
You regarded yourself as a competent tree feller? ... Yes.
And had felled tens of thousands of trees? ... Yes.
Tens of thousands of hardwoods? ... Yes.
You had been assessed by the industry regulator, correct? ... Yes.
And you received your Certificates every time you were assessed, you were passed, got your ticket? ... Yes.
Correct? ... Yes.
You knew how to inspect a tree didn't you? ... Yes.
You knew how long you should remain out of a haul line didn't you? ... .Yes.
You knew how to fell trees into gaps? ... Yes.
That's all part of the day to day existence of a tree feller isn't it? ... .Yes.
You knew how to use wedges? ... Yes.
And you knew how to use wedges to assist in directional falling? ... Yes.
And you were carrying wedges on that day weren't you? ... Yes.
We saw them in the photograph in the film of you using them, you knew how to use them properly? ... Yes.
You knew how to assess whether a tree posed a potential danger? ... Yes.
And you knew how to maximise the potential for falling trees into gaps didn't you? ... Yes.
And I think you've already said you didn't need a supervisor to supervise you while you did your falling? ... No."
There was undisputed evidence that to fell one tree so that it crashed into another created a dangerous situation. The danger was a risk of the occurrence of an event like the one that injured the respondent. Obviously, this risk could be eliminated by a clear felling operation, but that was prohibited by the plan. The plan directed an overstorey removal/shelterwood operation with a high production of sawlogs and, in effect, a consequential low production of pulp logs. Ideal execution of the plan would see only sawlogs taken, but that, of course, was not possible. It was not possible because of the danger that it would create and which I have just mentioned. It was also not possible because it is sometimes difficult to identify which trees are sawlog trees and which trees are pulpwood trees, and, as mentioned, sometimes a tree will contain both sawlog wood and pulpwood.
The operation in which the respondent was engaged called for a considerable degree of judgment, firstly as to whether a tree was a pulpwood or a sawlog tree and, secondly, whether safety considerations called for the felling of a pulpwood tree or trees before felling a sawlog tree. Such judgment would, in some instances, require an assessment of the risk of a falling sawlog tree merely brushing the outer limbs of a standing pulpwood tree or fairly heavily hitting those limbs, or crashing into those limbs and so on. The learned trial judge found, at par8 of his reasons for judgment:
"It is common ground that the plaintiff's injury could have been prevented by him felling the pulp tree before felling the two sawlog trees that collided with it. It is also common ground that the plaintiff had the right to fell any tree that he considered too much of a danger to leave standing, at least subject to any specific directions as to situations in which trees were not to be felled."
The respondent said in his evidence that Mr Johnstone said to him on the first morning of logging in that coupe that he was "only there to take the sawlogs only out" because another contractor was coming in later to take out the pulpwood. The respondent said that he found this "weird", as the plan referred to a standard overstorey removal/shelterwood operation, but at the same time Mr Johnstone told him only to take out sawlogs. The respondent said that Mr Johnstone also told him to fell any trees that the skidder had been pulling logs around and looked unsafe because apparently there had recently been an accident involving such a tree. The respondent said that Mr Johnstone said nothing else about taking out pulpwood. Nonetheless, it is clear that the respondent knew that he could fell a pulpwood tree if he felt that a failure to do so would create a danger by crashing a sawlog tree into it.
The respondent said that Mr Johnstone was on the coupe at least once a week but apart from one occasion when he questioned why there was so much pulpwood on the landing, the respondent's evidence was to the effect that after the first visit to the coupe, Mr Johnstone did not tell him what trees to fell and what trees not to fell.
The respondent gave the following description of felling the two sawlog trees:
"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." [Emphasis added.]
The learned trial judge accepted the respondent's evidence "that he would have liked to have felled the pulp tree before felling the two sawlog trees, but that he believed he was not allowed to fell it because of the provisions of the timber harvesting plan". [Par4]
In his cross-examination, the respondent accepted that he was entitled to remove pulpwood trees if not to do so would create a dangerous situation, but he repeated that Mr Johnstone "wanted me to fall sawlogs only". He said that Mr Johnstone said "when we first got to the block that it was sawlog only".
In his evidence-in-chief, Mr Johnstone said that he discussed the timber harvesting plan with the respondent, and that on "most occasions … we'd talk about tree selection … we'd talk about basically the type of tree we were looking at taking out". He was then asked this question and gave this answer:
"Thank you. Mr Coote -- just let me get this correct -- Mr Coote alleges that you gave him directions that he was not to fall any trees that were suitable for pulpwood in the coupe … No, that's incorrect."
I interpolate that the respondent did not so allege in his evidence-in-chief. He did allege that Mr Johnstone told him to only take out sawlogs, but that direction was given with a common unspoken understanding that pulpwood trees must be felled if not to do so would create a dangerous situation. With respect to the critical issue of what Mr Johnstone told the respondent, the former's evidence continued:
"I remember having discussions with Graham about, as I've said, tree selection. And if there was a problem tree then he would – had his full rights to take that tree out, if there was a problem. Yes, it's a long time ago.
Thank you. But you deny that you told him that he could not fall the pulp trees? … I've never said that."
In the circumstances, it would be unthinkable that Mr Johnstone would tell the respondent that he was never to fell a pulp tree, for to do so would place him in extreme danger, something both men knew very well.
There was no other evidence-in-chief on this critical issue of what Mr Johnstone told the respondent. Under cross-examination, Mr Johnstone agreed that although he knew what he would not have said to the respondent, he could not recall "specific conversations word for word what [he] said to [the respondent] 5½ years ago". There was no further cross-examination on that issue.
With respect to the important question of what Mr Johnstone said to the respondent, the learned trial judge found that it was not correct that Mr Johnstone told the respondent he was not to take out any pulpwood trees. He said that Mr Johnstone was asked very little about what he did say to the respondent. That observation is entirely consistent with the evidence, as can be seen from the parts of it to which I have referred. The learned trial judge then said, at par10 of his reasons for judgment:
"In particular, he was not asked to comment on the proposition that the plaintiff was, generally speaking, not allowed to take pulp trees, subject to exceptions when landings and snig tracks were being installed, and when a pulpwood tree was likely to be directly hit and smashed to pieces by a falling tree."
That observation is also entirely consistent with the evidence. Once Mr Johnstone told his cross-examiner that he could not remember specifically what he said to the respondent, his cross-examiner, perhaps wisely, left the subject matter alone.
In these circumstances, it was entirely appropriate for the learned trial judge to accept the respondent's evidence of what Mr Johnstone said to him. He did so in these terms at par11:
"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. There may have been some inaccuracy on the plaintiff's part in recounting what Mr Johnstone said to him on that subject. There may have been some inaccuracy on his part as to when his initial conversation with Mr Johnstone at the coupe in question occurred. But with those reservations, I accept the plaintiff's evidence as honest and generally reliable. Mr Johnstone may not have told him, in absolute terms, that he was not to fell any trees that were suitable for pulpwood in that coupe. However I am satisfied that Mr Johnstone did give the plaintiff a direction to the effect that he was not to fell pulp trees as he normally would;"
Those findings are in accordance with the oral evidence and supported by the written evidence in the harvesting plan prescribing the proportion of sawlogs to pulp logs that were to be taken. Immediately following the above passage, his Honour said:
"… that the plaintiff rightly perceived Mr Johnstone's direction as prohibiting him from felling the pulp tree from which a branch ultimately fell and hit him; that when Mr Johnstone visited the plaintiff at the coupe from time to time, he did so for the purpose of checking that his direction was being complied with; and that the plaintiff rightly perceived that Mr Johnstone was supervising him with that purpose in mind."
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 fell and hit him".
The difficulty about that phrase lies in the incontestable finding that "it was common ground that the plaintiff had the right to fell any tree that he considered too much of a danger to leave standing". The phrase would be in accordance with the evidence had it read:
"Provided the plaintiff did not regard it as dangerous to leave the pulp tree standing while he felled the sawlogs, the plaintiff rightly perceived Mr Johnstone's direction as prohibiting him from felling the pulp tree from which a branch ultimate fell and hit him."
At par28 of his reasons for judgment, the learned trial judge examined the pleaded particulars of negligence and dismissed the majority of them. With respect to the small remainder, he said, at par30:
"… I see merit in the allegation that the third defendant was negligent in failing to provide any instruction to the plaintiff to fall first those trees that posed a potential danger. Insofar as the allegation of lack of supervision in subpar(b) relates to the felling of trees which posed a potential danger, I think that allegation also has merit. There is also merit in subpar(c), to the extent that it alleges that the plaintiff should not have been allowed to continue working until he was instructed to fall first those trees that posed a potential danger."
I pause to observe that the terms of that paragraph do not completely accord with the terms of the particulars, but no point was made of that on the hearing of the appeal. The learned trial judge then made the finding of fact complained of in ground 4 in the notice of appeal. Although there was not a great deal of evidence to support the finding that Mr Johnstone "regularly supervised [the respondent's] work", there was ample evidence to support the essential finding that Mr Johnstone told the respondent "not to fall pulp trees as readily as he ordinarily would". Ground 4 is therefore not made out, but that is not the end of the matter.
As I have already said, the undisputed evidence was that the respondent is a very experienced tree feller. The learned trial judge made findings to that effect. At par29, his Honour found:
· The respondent had "sufficient experience to ensure his own safety adequately".
· The respondent's experience "suggested he should have felled the pulp tree".
· "The evidence establishes that [the respondent] was a very experienced worker, and that he did not need any additional training".
· The respondent "already knew how to assess which trees posed a potential danger".
The learned trial judge found that the respondent's decision not to fall the pulp tree was "consistent with obedience to Mr Johnstone's instructions". However, that finding needs to be read and understood in the light of the learned trial judge's conclusion that it was common ground that the respondent "had the right to fell any tree that he considered too much of a danger to leave standing". That common ground is reflected in the words of the harvesting plan and consistent with everyday safe practice in the forest.
The learned trial judge relevantly concluded, at par33:
"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 in failing, through supervision, to ensure that he did so."
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. Further, because of the respondent's wide knowledge and experience, he did not need Mr Johnstone to supervise him to ensure that he did fell any trees that potentially posed a danger. This is made clear from the following passage taken from the cross-examination of the respondent:
"But you were in no doubt that as the feller working on the ground, that if you considered any tree to be unsafe, you could remove it ... Yes.
And that included saw trees and it included pulp trees, didn't it? … Yes.
And it included any other species that might be in there, some of the minor species if you considered one of them to be dangerous you could remove, couldn't you? … Yes.
So that was the regime under which you were working, wasn't it? You're the man on the ground … Yes.
Your job primarily is to remove sawlogs – correct? … Yes.
If you found any tree that was unsafe you could remove it? … Yes."
The totality of the evidence leads to the conclusion that in the light of the instruction that this was a sawlog operation, the respondent assessed that the danger posed by leaving standing the tree from which the branch fell was not sufficiently high to require him to fell it first. It was an error of judgment on his part. The findings that the appellant breached its duty of care by failing to give a general instruction to fell any tree that posed a danger, and by failing to supervise the respondent to ensure that he did so, cannot stand. Ground 3 is made out. It is unnecessary to consider the other grounds of appeal.
Proposed order
I would allow the appeal, set aside the judgment dated 7 July 2004 and in lieu thereof, order that judgment be entered for the appellant against the respondent.
File No FCA 64/2004
FORESTRY TASMANIA v GRAHAM COOTE
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
23 March 2005
I agree with the reasons for judgment of the Chief Justice but wish to add some comments of my own concerning whether the appellant breached the common law duty it owed to the respondent.
The duty that was identified by the learned trial judge was to take reasonable care for the safety of the respondent in the appellant's supervision, management and control of the timber harvesting operations in which he was engaged. A few lines earlier, the learned judge stated that "it was reasonably foreseeable that, if the statutory authority in question failed to perform its functions with reasonable care, workers would be at risk of suffering injury". As explained by the Chief Justice, the duty of care existed in circumstances where the appellant was exercising its statutory powers and it was reasonably foreseeable that if it did not take reasonable care when doing so, the respondent or other forestry workers in his position, would be put at risk of suffering injury. It was not a duty to supervise the work of the respondent, to manage and control his work, so as to ensure, so far as reasonable steps might achieve it, that he was not injured. He was not the appellant's employee, nor its contractor. The duty was to take reasonable care to avoid foreseeable risks caused by the performance or exercise by the appellant of its statutory powers, not those caused merely by an omission to perform or exercise them.
After referring to the necessity, in the interests of safety, to fell all pulp trees that were likely to have limbs torn out of them by other falling trees prior to felling those other trees, the learned trial judge found the respondent's breaches of duty to have been as follows:
"I find that the [appellant] was negligent in failing to instruct the plaintiff to fell first any trees that potentially posed a danger in that way, and in failing, through supervision, to ensure that he did so."
His Honour then found:
"… that these breaches of duty caused the injury to the plaintiff since they resulted in him not felling the pulpwood tree, felling other trees in such positions that they hit the pulpwood tree, the dislodging of a branch when those trees were felled, the later falling of that branch, and its collision with the plaintiff."
Central to the finding that the appellant was guilty of the breaches of duty was another finding that as a result of directions given to the respondent by Mr Peter Johnstone, an employee of the appellant, the respondent rightly perceived that he was prohibited from felling the pulp tree from which the branch ultimately fell and hit him.
The timber harvesting plan that applied to the coupe in which the respondent was working did not prohibit the felling of such a tree. It did make clear that the aim of the overstorey removal/shelterwood operation was to "maximise sawlog production and minimise pulpwood" and that "direction from a Forest Officer will be supplied to help with selection", but it also made clear that "all trees that are considered to be un-safe by the contractor are to be removed". That last mentioned requirement that the contractor was to remove all trees that he considered to be unsafe, was in conformity with a longstanding industry practice that was required to be performed in the interests of safety of forest workers. The respondent, who had worked as a feller for close to 20 years up until the accident, was well aware of the practice. The learned trial judge referred to it being common ground that the respondent had the right to fall any tree that he considered too much of a danger to leave standing, at least subject to any specific directions as to situations in which trees were not to be felled. Accordingly, a critical issue concerned the directions given to the respondent by Mr Johnstone.
The respondent gave evidence that he spoke to Mr Johnstone on the first morning that he worked at the coupe in question, about a month before he was injured. He had noticed that one of the specifications of the timber harvesting plan was to maximise sawlog production and minimise pulpwood production and therefore mentioned the subject of falling pulp trees. He said, both in his evidence-in-chief and cross-examination, that Mr Johnstone told him that another logging contractor was coming in to fell pulp trees and that "we were only to take sawlogs out". He thought that was "a bit strange … it was weird". He was not used to what he described in evidence as "a purely sawlog only operation". He was asked what he understood was meant by the prescription in the timber harvesting plan to fall unsafe trees, without regard to what Mr Johnstone had said to him, and his response was:
"… 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."
However, at another point in his evidence he maintained a belief that the plan's requirement to remove trees that were considered by the contractor to be unsafe meant that all pulp trees should be removed because "all pulp trees are dangerous".
It was not the respondent's evidence that Mr Johnstone instructed him not to fall any trees, whether or not pulp trees, that were considered by him to be unsafe or dangerous. According to his evidence, his state of mind was that in view of having been told that it was a sawlog recovery operation only, he should only fell pulp trees, in the interests of safety, if he expected to directly strike them or "barrel them" with another tree, and that he should not fell them if he expected only that they would be "brushed" by the tree he was felling. It was his evidence that the pulp tree from which the limb fell onto him had been brushed by two other trees that he had felled.
Mr Johnstone denied that he told the respondent that he could not fall pulp trees and he was not challenged about that in cross-examination. He accepted that "I can't remember specific conversations word for word what I said … 5½ years ago", but asserted that "I know what I wouldn't have said". Asked whether he recalled conversations with the respondent on the subject of pulp trees, he said:
I remember having discussions with Graham about, as I've said, tree selection. And if there was a problem tree then he would – had his full rights to take that tree out, if there was a problem."
That was not challenged in a cross-examination that contained only four questions.
All trees have pulpwood in them, even if only in the head or in a section of the butt. What has been referred to as the pulp tree in question in this case had sawlog material in it. According to the respondent's evidence, if at least 50 per cent of the barrel or trunk was millable, it was a sawlog tree, and if less than 50 per cent was millable, it was a pulp tree. Other witnesses did not use those definitions. The respondent said that a feller would need to exercise his own judgment concerning whether a particular tree was a saw tree or a pulp tree and frequently the making of the judgment would be proven wrong once the tree in question had been felled, for it was only then that the true nature of the tree's contents could be discovered. The timber harvesting plan in this case specified that expected sawlog production from the coupe was 2,850 cubic metres and expected pulpwood production was 3,000 cubic metres. Notwithstanding that more pulpwood than saw wood was expected to be recovered, the learned trial judge thought that even so, the figures represented an unusually high proportion of sawlogs.
The respondent's evidence was that over the period of one month prior to the accident, during which he worked in the coupe in question, he felled maybe 100 trees a day, of which he estimated about 10 per cent were pulp trees and the remainder were saw trees. He accepted that overall, of the trees he felled, about 50 per cent of the contents were saw wood and the other 50 per cent pulpwood.
The learned trial judge thought that Mr Johnstone gave evidence in a credible manner. He thought that both Mr Johnstone and the respondent were practical men and of reasonable intelligence. His Honour did not think there was any real chance of a misunderstanding between them as to how readily Mr Johnstone wanted the respondent to fell pulp trees, although he accepted that there may have been some inaccuracy on the respondent's part in recounting what Mr Johnstone said to him on that subject. Nevertheless he accepted the respondent's evidence as "honest and generally reliable". His Honour continued:
"Mr Johnstone may not have told him, in absolute terms, that he was not to fell any trees that were suitable for pulpwood in that coupe. However I am satisfied that Mr Johnstone did give the plaintiff a direction to the effect that he was not to fell pulp trees as he normally would; that the plaintiff rightly perceived Mr Johnstone's direction as prohibiting him from felling the pulp tree from which a branch ultimately fell and hit him; that when Mr Johnstone visited the plaintiff at the coupe from time to time, he did so for the purpose of checking that his direction was being complied with; and that the plaintiff rightly perceived that Mr Johnstone was supervising him with that purpose in mind."
Upon a review of the evidence I have concluded that the finding of the learned trial judge that the respondent rightly perceived that what Mr Johnstone had said to him prohibited him from felling the tree in question was not open. It was clear from the evidence that a prescription calling for selective logging of trees, so that some trees were to be preferred over others, was not unusual in the industry. Evidence was given by Mr Dale Bramich, a director and the operations manager of AR & GR Padgett Pty Ltd, the company for which the respondent was working as a contractor, that there was nothing unusual about the prescription in the timber harvesting plan to maximise sawlog recovery and he had seen it in other harvesting plans. Mr Bramich's evidence was not challenged. He was not cross-examined at all. The evidence showed that a preference for sawlogs over pulp logs was not uncommon. Sawlogs were more valuable. Although there may have been an unusual aspect about the ratio of sawlogs to pulp logs it was desired to achieve in this case, there was no reason to think that whatever was said by Mr Johnstone to the respondent amounted to a direction that the respondent was not to follow the usual safe practices of fellers that were well known to him and others who worked in the industry. His evidence was that he would have adopted those practices and fallen the pulp tree from which the limb fell, before he felled the two trees that struck it, if it had not been for Mr Johnstone's direction to him. In my view, there was no basis for him thinking that in light of the direction he was prohibited from falling that tree first although it was in order for him to fell pulp trees that he expected to directly hit or "barrel". There was no justification for him failing to apply commonly accepted safe practices. There was no basis for Mr Johnstone to foresee that what he said to the respondent would be interpreted in the way the respondent claimed to have interpreted it.
The respondent said that after falling the two trees that brushed the pulp tree, he saw that some limbs had been broken out of it, but he did not see any loose branches hanging from it. He agreed that hitting the pulp tree with the other two trees, as occurred in this case, was not in accordance with accepted safe practices. Mr Johnstone's evidence was to the same effect. He said that the respondent should have felled the pulp tree first and then felled the other two trees. He also said that having struck the pulp tree, the respondent should not have moved underneath it. Mr Johnstone had considerable experience in the industry. Evidence was given by a private contractor who also had considerable experience in the industry, Mr Gregory Howard, to the same effect. He said that if he had assessed the respondent for the purpose of a commercial tree feller's practical examination, he would have failed him having regard to what he did in this case, which was "unacceptable". The evidence of Mr Bramich was that it was a matter for the individual feller to assess whether he was creating a dangerous situation and whether he should avoid it.
For the reasons I have given, I agree with the Chief Justice that the third ground of the appeal has been established. I would therefore allow the appeal, set aside the judgment and order in lieu that judgment be entered for the appellant against the respondent.
File No FCA 64/2004
FORESTRY TASMANIA v GRAHAM COOTE
REASONS FOR JUDGMENT FULL COURT
EVANS J
23 March 2005
I have had the advantage of reading the reasons for judgment prepared by Underwood CJ; I agree with them and the orders he proposes.
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