Gregory Spencer Ward trading as Ward's Stock Transport v Watson - [2021] WASCA 44

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GREGORY SPENCER WARD trading as WARD'S STOCK TRANSPORT -v- WATSON [2021] WASCA 44
CORAM:   QUINLAN CJ
MURPHY JA
VAUGHAN JA

HEARD:   7 DECEMBER 2020
DELIVERED          :   12 MARCH 2021
FILE NO/S:   CACV 111 of 2019
BETWEEN:   GREGORY SPENCER WARD trading as WARD'S STOCK TRANSPORT
Appellant
AND
KERRY ANTHONY WATSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   O'NEAL DCJ
File Number            :   CIV 2758 of 2017

Catchwords:

Appeal – Negligence – Common law – Workplace injury – System of work – Whether employer negligent in failing to instruct employees – Obviousness of risk – Experience of employee – Whether trial judge erred in assessing contributory negligence

Legislation:

Civil Liability Act 2002 (WA)
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA)

Result:

Appeal allowed in part

Category: B

Representation:

Counsel:

Appellant	:	T Lampropoulos SC
Respondent	:	T J Hammond

Solicitors:

Appellant	:	Greenland Legal Pty Ltd
Respondent	:	Perth City Legal

Cases referred to in decision:

AD & SM McLean Pty Ltd v Meech [2005] VSCA 305; (2005) 13 VR 241
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Best Bar Pty Ltd v Warn [2019] WASCA 15
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
East Metropolitan Health Service v Ellis [2020] WASCA 147
Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872
Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1
Goldsmith v Sandilands [2002] HCA 31; 76 ALJR 1024
Gors v Tomlinson [2020] WASCA 164
Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18
House v The King [1936] HCA 40; (1936) 55 CLR 499
Iannello v BAE Automation and Electrical Services Pty Ltd [2008] VSC 544
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Leichardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22
Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321
Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205
M R & R C Smith Pty Ltd t/as Ultra Tune (Osbourne Park) v Wyatt [No 2] [2012] WASCA 110
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
McLean's Roylen Cruises Pty Ltd v McEwan [1984] HCA 43; (1984) 58 ALJR 423
Nicol v Allyacht Spars Pty Ltd [1987] HCA 68; (1987) 163 CLR 611
Nikolich v Webb [2020] WASCA 169
O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Smith v Broken Hill Proprietary Co Ltd [1957] HCA 34; (1957) 97 CLR 337
Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51
Thompson v Woolworths (QLD) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Watson v Gregory Spencer Ward t/as Ward's Stock Transport [2019] WADC 118
Wreford v Lyle [No 3] [2021] WASCA 20
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Table of Contents

Introduction and overview

Background facts

Ward's Stock Transport

Respondent's employment with Ward's Stock Transport

Trailer configuration

Cattle

Loading livestock generally

Baulking cattle

Circumstances of the accident

Respondent's evidence in relation to the accident

Mr Page's evidence in relation to the accident

The 'three man method'

Respondent's case at trial

Primary reasons as to liability and contributory negligence

Grounds of appeal

Duty of care owed by an employer to an employee

Grounds 1 and 2 – foreseeability and the question of breach

Ground 1

Ground 2

Obviousness

Experience

Ground 2 – disposition

Ground 3 – causation

Ground 4 – the precise circumstances of the accident

Ground 5 – contributory negligence

Conclusion

JUDGMENT OF THE COURT:

Introduction and overview

On 18 February 2015 the respondent, Kerry Watson, was seriously injured when he was struck by a bull in the course of his employment with the appellant, Gregory Ward (the accident).
The appellant was the sole proprietor of Ward's Stock Transport and carried on a business of general livestock transport. As part of his employment with the appellant, the respondent drove road trains, mainly transporting cattle. The respondent had been employed by the appellant since 31 March 2014.
On the day of the accident, the respondent and three co‑workers, including Gary Page (Mr Page), were directed to transport cattle from the Cullalla feedlot in Gingin to Fremantle. Each of the employees had a separate road train.
As the trailers of Mr Page's road train were being loaded with cattle, one of the animals, a north‑west bull (the bull), baulked before entering the front pen of the trailer. The bull remained in the rear pen of the trailer. The respondent entered the rear pen to encourage the bull to move forward. The bull turned on him and forced him up against part of the loading dock, causing the respondent's injuries.
The respondent sued the appellant for damages on the basis that the appellant was in breach of his duty of care as the respondent's employer. The focus of the respondent's case at trial was that the appellant should have instructed his employees never to enter a pen with a baulked animal. There was, on the respondent's case, a safe method of dealing with a baulked animal, which the employees should have been instructed to use.
O'Neal DCJ found that the appellant's failure to instruct his employees never to enter a pen with a baulking animal was in breach of his duty of care and that the breach caused the respondent's injuries. The learned trial judge also concluded that the respondent was guilty of contributory negligence and reduced the respondent's damages by 20%, pursuant to the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA).[1]
[1] Watson v Gregory Spencer Ward t/as Ward's Stock Transport [2019] WADC 118 (Primary reasons).
On 12 December 2019 judgment was entered for the respondent against the appellant in the sum of $1,232,429.02 plus costs to be taxed if not agreed.
The appellant appeals from the learned trial judge's finding that the appellant was in breach of his duty of care to the respondent and that his breach caused the respondent's loss. In the alternative, the appellant contends that the reduction for the respondent's contributory negligence of 20% was manifestly inadequate.
For the reasons that follow, we would reject the grounds of appeal challenging the findings of liability and causation against the appellant. We would, however, uphold the appeal in relation to the reduction for the respondent's contributory negligence. In our view, the reduction for contributory negligence was manifestly inadequate.
In all of the circumstances the appropriate reduction for the degree of negligence attributable to the respondent is 40%. The appeal should therefore be allowed and the judgment substituted so as to reflect an apportionment of liability of 60% to the appellant and 40% to the respondent.
We turn first to the background facts that are not in issue.

Background facts

The following facts are taken from the factual findings made by the learned trial judge, supplemented where necessary from the evidence at trial. None of these background facts were challenged in the appeal.

Ward's Stock Transport

The appellant commenced the business of general livestock transport under the business name Ward's Stock Transport in about 2002 and operated continually until the date of the accident. The transport business operated out of Muchea in Western Australia. As the business grew, the appellant employed four or five drivers (in addition to driving himself).[2]
[2] Primary reasons [27] ‑ [28]; trial ts 249.
It was the appellant's policy never to employ anyone in the cattle carting industry who had less than three years experience.[3]
[3] Primary reasons [29]; trial ts 251.
The appellant did not provide his drivers with any formal training or induction.[4] In that regard, the appellant gave evidence that he relied upon the employees' prior experience, saying he 'would never employ anybody that didn't have the experience because of the high risk. It is not something that you would give anybody the opportunity to just have a go at'.[5]
[4] Primary reasons [30]; trial ts 252, 265, 268.
[5] Primary reasons [30]; trial ts 252.
Insofar as instruction was concerned, the appellant confirmed that it was a policy of his that 'all drivers stuck together'. He said that it was 'part of my instructions that we all stuck together. We all work together. I never asked anybody to do anything that I wouldn't do'.[6]

Respondent's employment with Ward's Stock Transport

[6] Primary reasons [36]; trial ts 252.

The respondent was born in New Zealand in 1963 and moved to Australia in 1985 at the age of about 22 years.
He worked in a variety of occupations, including a lengthy history as a truck driver.
In 1994, the respondent began working for Hampton Livestock Transport transporting sheep and cattle. Between 1996 and 1998 he worked for Treasures Transport doing the same kind of work. From 1998 to 1999 the respondent worked for Leeds Transport as a truck driver, transporting cattle. Between 2000 and 2007 he continued his work as a truck driver for several different companies, transporting a range of things from livestock, to general freight and dangerous goods.[7]
[7] Primary reasons [20].
In 2007, the respondent was involved in a motor vehicle accident and stopped working as a truck driver for about two years. From 2009 he again became involved in the transport industry working as a driver trainer and instructor. That lasted until 2012.[8]
[8] Primary reasons [20].
In 2012, the respondent again took up work as a truck driver, transporting general freight and, on 31 March 2014, began working for the appellant.
As in the case of other employees of the appellant, the respondent did not have any training, instruction or induction when he joined Ward's Stock Transport.[9] The appellant and the respondent knew of each other from the industry and, as the learned trial judge found, there was considerable mutual respect between them.[10]
[9] Trial ts 44.
[10] Primary reasons [35]; trial ts 251, 265.
The general informality of the appellant's business is reflected in the documentation prepared at the commencement of the respondent's employment, which was limited to a tax declaration and a pro forma letter signed by the respondent in the following terms:[11]
[11] Exhibit 14 (GAB 8).
Dear Staff,
You are entitled to 4 weeks annual leave. If possible we would like holidays taken during the quiet periods. Not necessarily all taken together.
If you have any medical conditions or take any medication that may effect your driving or work performance, we must be informed.
Any work related injuries are to be notified immediately if possible. A first aid kit is supplied in your truck and the workshop, please inform Karen if anything in them is to be replaced.
We do not tolerate driving under the influence of alcohol or drugs. Truck Drivers have zero tolerance in alcohol.
Misuse of fuel cards is also not tolerated.
Please ask permission before taking passengers in the truck.
Yours Sincerely
Greg Ward.

Trailer configuration

The learned trial judge described a variety of trailer configurations in use in the livestock transport industry in Western Australia. Those configurations include a variety of trailer sizes, which when arranged in tandem make up road trains. Relevantly, all of the trailers the subject of the evidence have an upper deck and a lower deck.
An example of what was referred to in evidence as a 'B‑train' is depicted in the following exhibit:[12]
[12] Exhibit 15 (detail) (GAB 12).
As can be seen, this configuration of a road train consists of a rig (or prime mover) at the far right of the photograph, to which are attached two trailers approximately 40 feet in length. These trailers were referred to as B‑Trailers. Each B‑Trailer has an upper and lower deck.
The B‑Trailer is divided into two 20 foot long pens on the lower deck and three pens of varying sizes on the upper deck. The reason for the variation on the upper deck is that the upper deck is accessed by a ramp that drops from the upper deck to the lower deck on one side of the trailer. The ramp is internal and cannot be seen in the above photograph.
The pens in the trailers are separated by gates. The gates, which are commonly called 'slam gates', are large gates that are hinged at one end, with a latch mechanism at the other end.
The inside of the lower deck of a B‑Trailer can be seen in the following exhibit:[13]
[13] Exhibit 4 (detail) (GAB 7).
As depicted in this photograph, the front pen is on the right of the photograph and the rear pen on the left. The metal gate is depicted in the open position. As can be seen, the hinge of the swinging part of the gate is joined to a fixed barrier (obscured in the photograph) between the pens. As a result, when the gate is in the open position it forms (viewed from above) a right angled triangle with the wall of the trailer and the fixed barrier.
As also depicted in this image (the relevance of which will be apparent later), there is a gap between the steel panels on the sides of the trailer and the 'ceiling' of the deck. That gap can also be seen, depicted from the outside, in the photograph at [25] above (although the gap does not extend fully to the rear of the trailers in that photograph). The top of the swing gate extends higher than the steel panel, such that it is possible to reach into the trailer from the outside, through the top gap in the side of the trailer, to open the gate for unloading.[14]
[14] Primary reasons [68].
On the upper deck of the trailers there is a catwalk that runs atop along the length of the trailer that is approximately 3 to 4 feet wide. From the catwalk it is possible to access the slam gates on the upper deck of the trailer without standing in the pens of the upper deck.[15]

Cattle

[15] Primary reasons [71].

All livestock, cattle in particular, are unpredictable and potentially dangerous to work around; even steers, cows and heifers can be aggressive.[16] Moreover, cattle from stations in the north‑west (as in this case) are particularly dangerous to handle and should never be trusted; describing them as 'half wild' would be giving them too much credit.[17]

Loading livestock generally

[16] Primary reasons [54].

[17] Primary reasons [52].

The general process of, or system of work for, loading a B‑train with cattle involved the following steps.
The road train is positioned with the rear door of the rear trailer positioned adjacent to a fixed platform at the top of a ramp (called the 'racing ramp') leading from the yards containing the cattle. When the rear doors of the trailer are opened and locked in place, gates at the end of the racing ramp (the wing gates) extend to create a passage from the ramp into the trailer. There is another gate at the end of the racing ramp that can be opened and closed to control the passage of cattle onto the trailer.
The upper decks of both trailers are loaded first. All the internal gates are opened, the ramp in the rear trailer is dropped from the upper deck to the lower deck, and a 'run‑through' is extended between each trailer, like a drawbridge with side gates. The run‑throughs allow the cattle that run up the ramp to the top deck to run the full length of the trailers to the foremost pen.
As each pen is filled, the gate for that pen is closed, trapping the cattle in the pen. The gates on the upper decks are closed by the operator standing on the catwalk. When the last upper deck pen is loaded, the ramp is raised by a winch and the run‑throughs between the upper decks are retracted.
The lower decks are then filled. In order to close the gates between the pens on the lower decks, the driver would generally follow the draft of cattle into the trailer to close the slam gate for the pens.
The learned trial judge observed that it was physically possible to close the gates on the lower deck by reaching in from outside (through the gap described at [31] above) and swinging or pushing them closed. His Honour said, however, that this was awkward and interference could prevent the gate from closing and latching. His Honour also noted that, with sufficient personnel, a person could wait in the protective triangle created by the open gate (described at [30] above), but that this was 'unusual'.[18]
[18] Primary reasons [87].
The evidence at trial, which the learned trial judge evidently accepted, was to the effect that, in the overwhelming majority of cases, once the cattle had begun to run, they would continue to move forward as far as they could.[19]

Baulking cattle

[19] Trial ts 254.

His Honour said that it was fairly rare for cattle to baulk, that is, to stop short of the pen.[20]
[20] Primary reasons [88].
Nevertheless, of all the significant risks of personal injury arising in the work of cattle transport drivers, the risk of personal injury in dealing with baulking animals whilst undertaking the task of loading cattle 'stood out as particularly significant'.[21]
[21] Primary reasons [138].
There was a reasonably safe method to deal with baulking animals, described as the 'three man method'. That method is discussed in detail later in these reasons.
In light of this background, we turn to the circumstances of the accident, in relation to which the evidence was more contentious.

Circumstances of the accident

Evidence concerning the accident itself was given by the respondent and Mr Page. The parties and Mr Page also gave evidence in relation to other loading practices, to which we will also refer.

Respondent's evidence in relation to the accident

On 18 February 2015 the respondent, Mr Page and two other co‑workers (referred to in the evidence only as 'Lewis' and 'Kiley')[22] were directed to go to the Cullalla feedlot in Gingin to collect cattle for transport to Fremantle. The respondent was directed to take a B‑train.
[22] The learned trial judge rendered the latter name as 'Kylie', suggesting that he had the same given name as the mononymous Ms Minogue. As with the references to Mr Page as 'Pagey', the name was in all likelihood a diminutive of 'Kyle'. See trial ts 72 and 274 where 'Kiley' is referred to as a 'he' and as a 'gentleman'.
When they arrived at the feedlot the respondent and his co‑workers set up their trailers (opening the internal gates and lowering the ramp from the upper deck) and waited their turn in a line of trucks from other operators.[23]
[23] Trial ts 63.
While he was waiting, the respondent heard swearing and cursing and a door opening and slamming. The respondent said that he knew that it was Greg Page and he looked up and saw that Mr Page was having trouble. Mr Page's truck was backed up to the ramp.[24]
[24] Primary reasons [116]; trial ts 66.
The respondent said that he walked from where he was standing to where Mr Page was standing at the top of the ramp and asked 'what's going on?' to which Mr Page responded, 'I can't get this [expletive] bull in the pen'.
The respondent gave evidence that he said to Mr Page 'I'll have a look' and then walked through one of the wing gates and opened the rear door of the truck a couple of inches to have a look to see where the bull was. The bull, the respondent said, 'was on an angle across the gate and his butt was sitting on the gate, and he was trying to get into the pen on that angle'. That is, the bull was at the point of the final slam gate and the bull's head was facing into the forward pen.[25]
[25] Trial ts 67 ‑ 68.

The respondent gave evidence that he said to Mr Page:[26]
If we go in here, side by side and put pressure on him, he's going to get in there, because he's trying to get in now. He's going to force himself in there. We'll be able to close the gate.
[26] Trial ts 68.
The respondent said that he slid in through the rear door and 'Pagey slid in beside me'. He continued:[27]
I said, 'If we stay shoulder to shoulder, we can get this bull in, by putting pressure on him.' So he's seen us coming, the bull, and he's trying to force his way in there, Page has just dropped back off my left shoulder a little bit, so I said – I was hitting the prodder on the top of the room to scare him and he was trying to work his way in there. And he slipped off the reo bars, they're the bars that are on the ground…
He was slipping off – that's what I presumed, he slipped off one of those and made a stomping noise. And Page, he said, 'Wooh', so we stopped. And then I said, 'No, he's trying to get in, let's put' – so as he's moving in, he's pulling the gate around at the same time. The friction from his butt is pushing the gate around. So I saw that and I said, 'Let's keep the pressure on him because he's going to end up closing the gate for us'. And then he slipped and stomped again, which I thought was a stomping noise. The next thing, I hear the back door open. And I looked around and it was wide open, and the bull thought, 'Well, I'm out of here now'. And I was in between that and the bull and he just collected me on the way past.
[27] Trial ts 68 ‑ 69.
The respondent said that Mr Page had left the trailer without saying anything. He said that, prior to being hit by the bull, he heard the backdoor open and saw Mr Page go out and around the corner.[28]
[28] Trial ts 68 ‑ 69.
In cross‑examination, it was put to the respondent that, after he heard that Mr Page was having a problem, he walked into the back of Mr Page's trailer (where the bull was) without talking to Mr Page. The respondent answered:[29]
That's not what we're taught when you're – when you're helping someone else load their trailer.
I'm not asking you what you're taught. I'm asking – that's what he says happened?---Well, that's in my nature. You don't just go barrelling into someone else's trailer. You ask first.
[29] Trial ts 137.
The respondent agreed that it was he, and not Mr Page, who suggested that they go into the back of the trailer. He was then asked:[30]
Mr Page's evidence is he would never have ever gone into the back of the trailer side by side as suggested by you with somebody else to pressure a bull. You – you're saying that's wrong I assume?---Well, in situations like that you've got to be the dominant one. If you let the bull know that you – show weakness to the bull, they're going to pull it over you every time. They will – they will pin you up against a wall and do whatever. But if you let them know that you're not scared of them and don't show them weakness, you can – you can get it over them. Cattle – cattle are mainly scared of us to start with so we've got that in our favour.
[30] Trial ts 139.
Later in the cross‑examination there was the following exchange:[31]
And at the time you got to the top of the ramp before you went in and slid the door open and decided – did what you did, you knew this bull was playing up, didn't you?---Yes, correct. But when I assessed the situation he was all right.
No. You just said to us a moment ago that you had to be the dominance – you - - -?---Correct.
- - - you had to take – take the lead, be dominant and actually show the bull who's boss, is that correct?---Well, you don't show a bull who's boss. You don't let them know that you're scared of them, that's what I meant.
And you - - -?---Don't show them fear.
And you – you've had lots of experience, you're not actually scared of bulls, are you?---Well, it's not a matter of being scared, it's a matter of knowing what they're going to do. And if you show fear, of course, they'll get it over – they'll have it over you straightaway. Mr Ward can tell you that.
[31] Trial ts 140.
It was also the respondent's evidence that Mr Page's actions in leaving the trailer were what gave the bull the impetus to exit the rear of the trailer:[32]
He left me standing there and opened up a door. If that door swings open like it did and a bull sees it, that's his get out of gaol card. If you open a gate to any animal, they'll go through it.
[32] Trial ts 144.
We now turn to Mr Page's evidence.

Mr Page's evidence in relation to the accident

As the learned trial judge observed, Mr Page's account of the accident was in a number of respects quite different to that of the respondent.
Mr Page said that after he had told the respondent that he was having difficulty with an animal turning and did not want to go in to shut the gate, the respondent went into the rear of the trailer. Mr Page said that the backdoor remained open 'and it was only a matter of seconds that [the respondent] was back out of the back of the trailer into the slide gate on the ramp'.[33] Mr Page said he was standing very close to where the respondent landed on the ramp.
[33] Trial ts 298.
Mr Page denied that he had gone into the trailer with the respondent. In cross‑examination he denied that there was any plan discussed between himself and the respondent. He said that he would have refused to have gone in with the respondent because:[34]
I would not go in a truck crate two people, side by side. That is asking for trouble. You could trip on each other … and it gives the animal more opportunities.

The 'three man method'

[34] Trial ts 314 ‑ 315.

As we have noted above, in addition to the evidence as to the circumstances of the accident, the witnesses gave evidence as to another, safer method for dealing with a baulked animal. The learned trial judge referred to this as the 'three man method'.
The appellant's evidence in that regard was as follows:[35]
What in your experience given that refusal by the bull to get in or the difficulties that were being experienced, what would you say would have been an appropriate thing to do as an alternative?---Okay, the appropriate thing to have done would have been to actually call someone for assistance and have them go up on the side of the crate and move the cattle forward, which then would have allowed the bull to go in. …
And how – how – describe the process how you could do that from the outside?---Okay, all you do is, as you can see, there are gaps in the sides of the trailers where you can climb up the ladder. Not all of them have got ladders, but it's very - - -
…
Yes?---As I say, not all trailers have the ladder there to climb up, but it is easy just to climb up on the wheel and – yeah, get up on the side either on the mud guard or something like that to be able to move the cattle forward.
And when you say you go and enlist help from somebody else, how many people would you need to do that sort of thing?---One either side would be sufficient.
Were there any alternatives available other than taking those steps? Any other options open to get this bull into place?---I guess, the only other option would have been if – as I said, if – if Pagey had have decided to call for help either side of the crate to move them forward, that would have worked for sure.
[35] Trial ts 258. The appellant's reference to 'the crate' in this evidence is clearly, in context, reference to the trailer.
The three man method, therefore, involved the use of the gap described at [31] above, to coax the cattle forward of the gate to allow the baulked animal to move forward as well. As in the case of the process of loading generally, the three man method required a worker to enter the trailer to close the slam gate, although after the baulking animal had entered the required pen.
The respondent also gave evidence consistent with an understanding of the three man method:[36]
If you're familiar with what bulls could do why in the world even if your version is correct what you did with Mr Page, why in the world would you have done that in those circumstances?---Because there was a lack of personnel around to help us. If it was a perfect world I would have had someone on the other side standing on the side of the trailer and pushed the gate closed, someone on the other side to grab the gate and me at the back running to close it, in a perfect world, but that wasn't a perfect world.
Well, there were other people around. You've told us that there were other people - - -?---After.
That helped you afterwards?---After the bull hit me everyone seemed to appear.
[36] Trial ts 149.
The learned trial judge made an express finding that the three man method is the safest available method of dealing with a baulking animal.[37] There was no challenge to that finding in the appeal.[38]
[37] Primary reasons [102].
[38] Appeal ts 19, 42.
Before turning to the learned trial judge's reasons in relation to the issues of liability and contributory negligence, it is appropriate to make a number of observations in relation to the pleadings and the respondent's case at trial.

Respondent's case at trial

The Statement of Claim in the present case was more than usually uninformative and unhelpful. It was also apt to create false issues in the trial of the action.
In the first place, the pleadings as to the circumstances of the accident were very vague. Paragraph 10 of the Statement of Claim was in the following terms:[39]
On or about the material date an incident occurred at the premises.
Particulars of the incident
a.The Plaintiff was at the premises carrying out his duties as a driver.
b.The Plaintiff was assisting another employee of the Defendant to load stock ('the task').
c.As the Plaintiff assisted in the task the employee of the Defendant abandoned the Plaintiff and the Plaintiff was charged by a bull which struck him and rammed him into a trailer gate injuring him. ('the accident').
d.As a result of the accident the Plaintiff suffered injuries.
[39] Statement of Claim [10] (BAB 48 - 49).
A reasonable reader of this pleading would have little idea what it was that the respondent was said to have been doing at the time of the accident. It does not reveal that the respondent was endeavouring to deal with a bull that had baulked or, even, that the respondent was inside a trailer with the bull at the time. The significance of the pleading to the effect that a fellow employee (presumably Mr Page) 'abandoned' the respondent was also unclear.
Paragraph 12 of the Statement of Claim, which contained the pleadings as to breach, did not shed any more light on the respondent's case:[40]
[40] Statement of Claim [12] (BAB 49 ‑ 50). The particulars of the alleged breach of statutory duty, which were to similar effect, have been omitted.
The accident was caused by the breach of the common law … duty of the Defendant, its servants or agents in that they:
Particulars of the defendant's breach of common law duty
(a)failed to put in place systems of work such that the task could be carried out in a manner that did not expose the Plaintiff to foreseeable risk of injury;
(b)failed to provide the Plaintiff with the necessary information, instructions, training and/or supervision so the Plaintiff was not exposed to foreseeable risk of injury when carrying out the task;
(c)failed to assess the risks involved in carrying out the task in the manner that was required;
(d)failed to prevent the Plaintiff from carrying out the task in the manner he did, when it knew, or ought to have known, that the Plaintiff would thereby be exposed him to foreseeable risk of injury;
(e)failed to warn the Plaintiff of the risks involved in carrying out the task in the manner he did;
(f)failed to provide sufficient numbers of staff so the Plaintiff could safely carry out the task without foreseeable risk of injury;
(g)failed to provide adequate equipment so as to allow the Plaintiff to carry out the task safely and without foreseeable risk of injury;
(h)the fellow employee abandoned the Plaintiff without warning after having agreed to a system of work;
(i)failed to put in place systems that did or avoided doing those things specified in (a) ‑ (h) above.
As will be apparent these 'particulars' of negligence were not in fact particulars at all. Other than (arguably) particular (h), they made no reference to the actual facts and circumstances said to give rise to the appellant's breach. They were, rather, a pro forma list of failures expressed in entirely abstract terms.
The alleged failure to put in place 'systems of work', for example, deigned neither to identify the 'system' alleged to be lacking nor even the 'work' to be carried out. Similarly, the alleged failure to provide 'information, instructions, training and/or supervision' did not identify what information, instructions, training or supervision ought to have been given, nor which 'risk' any of those matters would have addressed.
Particular (h), which invoked the alleged 'abandonment' of the respondent by the fellow employee, did not identify how that fact was alleged to have constituted breach of the appellant's duty of care. Was the appellant alleged to be vicariously liable for the negligence of the fellow employee? If so, how so? The pleading does not say. The particulars referred to an 'agreed' system of work, but did not identify what the system of work was, or whether it was a safe system (the abstract reference to the absence of a safe system of work having been earlier pleaded at particular (a)).
The learned trial judge, when referring to the particulars of negligence, said that it was 'a sterile and unhelpful exercise to advance shopping lists of alleged breaches of duty without first considering the extent to which it can be shown that the alleged breach was causative of relevant harm'.[41]
[41] Primary reasons [134].
The appellant, in his written submissions, referred to this part of the Primary reasons in support of his contention to the effect that the learned trial judge impermissibly used 'hindsight' in determining the question of breach.[42] We will address that contention below in the context of the grounds of appeal.
[42] Appellant's submissions [18], [28] (WAB 8, 10). The appellant's submissions emphasises the words 'first considering'.
For present purposes, however, it is sufficient that we observe that, in our view, this part of the Primary reasons does not reflect any hindsight bias on the part of the learned trial judge. His Honour was not, in the passage reproduced at [75] above, describing his own process of reasoning in the case but, rather, offering an appropriate criticism of the pleader's failure to identify, with any particularity, what the issues of real substance were in the respondent's claim. Read in the manner intended by the learned trial judge the observation does not bespeak any error by his Honour.
The learned trial judge's criticism was well placed. The listed particulars of negligence were, indeed, sterile and unhelpful. The continued use of generic particulars, self-evidently derived from precedent documents and based on principles extracted from past authorities without consideration of or application to the facts of the particular case, is a blight in this area of the practice of the law and is to be deprecated.
By contrast, the particulars of contributory negligence pleaded in the Defence properly identified the essential allegations in relation to the respondent's own conduct, namely that he had entered the trailer and placed himself in close proximity to the bull:[43]
The plaintiff:
(a)failed to take any or any adequate precautions for his own safety when he, without any instruction, request or direction, entered the trailer where the steer was,
(b)failed to take reasonable precautions for his own safety by placing himself in close proximity to the steer when, as an experienced livestock transport operator he knew, or ought to have known, that he was exposed to a foreseeable risk of injury by placing himself in close proximity to the steer …
[43] Defence [12] (BAB 54).
When counsel for the respondent opened his case before the learned trial judge, it was apparent that the respondent's case, in relation to the alleged negligence of the appellant, had narrowed. Counsel (who was not counsel on the appeal) referred to the appellant's submissions (which were consistent with his plea of contributory negligence) and submitted that:[44]
It's the defendant's case that any reasonable person loading livestock, particularly experienced truck drivers specialising in carrying livestock, would have understood the folly and unsafe practise of getting into the trailer with a bull.
[44] Trial ts 5.
Counsel for the respondent continued:[45]
[W]hat could have been done is simply an instruction that one doesn't enter the trailer in circumstances such as that. That was not the case. … [N]o instructions were given.
And you'll hear evidence to the effect of the fact there was no training, there was no induction, there was no direction in relation to those things whatsoever by the defendant.
[45] Trial ts 6 ‑ 7 (see also trial ts 12).
Later in the opening, counsel for the respondent referred to the respondent's account of the accident and in particular the alleged actions of Mr Page:[46]
What we say is, that we were certainly never told not to [enter the trailer in the circumstances]. We were never presented with a system of work in terms of how one would avoid that position. We were deserted by a fellow employee, so there was never obviously – the fellow employee had agreed to a system to deal with this but then fled without warning, and that precipitated the bull's charge.
[46] Trial ts 12.
While the alleged actions of Mr Page were described in pejorative terms ('we were deserted'), counsel did not explain whether, or how, those actions were relevant to the allegation of negligence in failing to give the relevant instruction.
Counsel for the appellant (who, again, was not counsel on the appeal) also made opening submissions at the beginning of the trial. He said, in relation to the respondent's account of the accident:[47]
There is a [sic] entirely dispute of fact between the parties as to the circumstances in which this incident occurred.
…
So there's a complete factual dispute as to the circumstances which had occurred.
[47] Trial ts 25.
Counsel continued:[48]
[T]his appears to be the primary breach is that you failed to instruct this employee not to get into the back of a trailer with a bull who is stubborn and doesn't want to move, and that's what you should have told him before. And because you didn't, he's done that and that's the consequences.
[48] Trial ts 26; Primary reasons [136] (as extracted in the Primary reasons, this quote contains immaterial typographical errors from the transcript).
The parties therefore clearly joined issue in relation to the real issue of breach in this case, namely whether reasonable care required an employer in the cattle industry to instruct its employees never to enter a trailer with an animal that has baulked upon entry.
It is also clear, however, that the parties also joined issue as to whether Mr Page had entered the trailer with the respondent following a discussion between the two of them or, alternatively, whether the respondent did so alone. Whether that was a real issue in the trial that needed to be resolved is the subject of ground 4.

Primary reasons as to liability and contributory negligence

The learned trial judge commenced consideration of liability by identifying the relevant risk of injury:[49]
In this case it did not come as a revelation to any of the drivers who gave evidence that it was dangerous to work around cattle of any kind, and that it was particularly dangerous to work in close proximity to bulls from the north‑west. All of them were aware of the potential risk of serious personal injury posed by (at least) half wild, ill‑tempered 450 kg animals. No one, including the plaintiff, needed to be told of what was blindingly obvious.
[49] Primary reasons [135].

His Honour continued, in relation to the foreseeability of the risk of harm:[50]
The submissions filed for the defendant, although not the pleaded defence, sought to advance the proposition that the risk of harm from getting into a pen with a balking animal was so great and so obvious that, pursuant to s 5F and s 5O of the [Civil Liability Act 2002 (WA)], the defendant did not owe the plaintiff a duty to warn of that risk. The glaring problem of the failure to plead that defence fell away when, as set out above, the defendant conceded the provisions of the [Civil Liability Act 2002 (WA)] did not apply to matters of this kind. The defendant however relies on the obviousness of the risk in support of its plea of contributory negligence.
It follows that there is no controversy as to whether entering a pen with a bull in these circumstances posed a foreseeable risk of harm. Amidst all of the significant risks of personal injury arising in the work of cattle transport drivers, this risk stood out as particularly significant. The question then becomes one of breach. What did reasonable care on the part of the employer require, if anything, to mitigate this risk?
[50] Primary reasons [137] ‑ [138].
In relation to the circumstances of the accident his Honour made the following findings:[51]
The only matter of fact that was the subject of much controversy was how it was that the plaintiff came to be in the pen with the bull. Given the conflict in the evidence of the plaintiff and Mr Page, I was told that I had to reject the evidence of one or the other. There was little in the way of developed argument as to why I should do so in the case of either, or what consequences followed from the credibility finding I was being asked to make.
In my view it is difficult to accept that either Mr Page or the plaintiff are entirely right or wrong in their description of the events from the time that the plaintiff went to assist Mr Page. The evidence does not permit me to conclude that one or the other was deliberately untruthful. The reality in my view is that one or both are mistaken to some degree in their recollection.
This was an event that happened quickly. It was fast moving and ultimately traumatic. It is entirely possible that Mr Page misunderstood what the plaintiff was proposing and the plaintiff misunderstood what Mr Page had agreed to. It is quite possible that in the aftermath of these events each has persuaded himself to a particular view as to how and why this event unfolded as it did.
I am unable to determine who opened the door of the crate prior to the plaintiff entering, and who left it open to some extent. Nor is it possible to say whether the plaintiff entered the crate alone or with Mr Page.
The state of the evidence does not allow a positive finding as to the plaintiff's version of these specific events. This is not a case however where anything follows from that, despite the amount of time this issue occupied at trial.
Whether Mr Page agreed to provide some sort of support is not much to the point.
I accept the unchallenged evidence of the defendant and Mr Page that it was especially dangerous for two people to enter a pen with an animal.
The presence of two people in the pen would double the number of potential targets for an ill-tempered animal, and double the chances of someone being injured. The presence of each person would limit the range of movement of the other, and create the chance that one could get in the way of the other in the event of the need to move quickly. It would have been worse, that is, more dangerous in my view, if both had entered the pen.
[51] Primary reasons [139] ‑ [146].
In this context, his Honour made a passing reference to the 'abandonment' particular:[52]
Even if Mr Page had agreed to enter the pen with the plaintiff and then changed his mind as alleged, it is difficult to see how that could be the basis of any principled finding of breach of duty on the part of the employer.
[52] Primary reasons [146].
The learned trial judge then turned to consideration of breach:[53]
[53] Primary reasons [147] ‑ [157].
That the plaintiff went to assist Mr Page and entered the pen to try to shift the bull is not in dispute. The injury that he received was a consequence of that action. As the defendant's counsel accepted in opening, the real issue is whether the plaintiff should have been instructed by the defendant not to, or perhaps better, never to enter a pen in these circumstances. Having identified the issue in that way, the only answer ever offered on behalf of the defendant was that the risk was 'obvious'.
In my view, employees should have been so instructed.
According to the defendant it was a relatively infrequent occurrence that loading did not proceed smoothly. On the rare occasions that an animal balked there was a reasonably safe method available to deal with the problem, or at least, I find, a method that was safer than what the plaintiff tried to do. According to the defendant it was always practicable to have a person on either side of the crate urging the cattle forward, because there was always someone available to assist, including drivers from other companies. Even the plaintiff accepted that this method or something like it, was an alternative to entering the pen as he did, if others were available to assist.
On all of the evidence the defendant conducted his business, at least so far as his direction of his employee drivers, in what might be described as quite an old‑fashioned way. I suspect that the defendant is not unique in this industry.
The defendant made it a point to only hire drivers with lengthy experience in the industry. He did so on the assumption that, with that experience, a driver would know how to do the job. The actual conduct of the prime‑mover and trailer was of course the subject of a licence requirement in any event. It was the knowledge about handling livestock, and loading and unloading livestock, that the defendant believed came with experience.
It is not the case that the defendant thought that every driver would have exactly the same view about how particular work‑related situations should be dealt with. On the evidence he recognised that there were different views and it appears that he was content to leave some aspects of the work to the discretion of each driver. I have referred to the variation between drivers in encouraging cattle up the race.
It is not the case that the defendant never gave his drivers direction. There were some circumstances apparently where the defendant would give direction to his employees, or some of them. The defendant was asked whether he gave any instruction with respect to the use of cattle prods. He answered:
I would have said – not necessarily to Kerry, but to drivers, from time to time, and perhaps Kerry may well have been at the end of a conversation I had, but often used to say to the guys, 'do not use prodders unless it's absolutely necessary'.
The deference towards 'Kerry', the plaintiff, is revealing. In some earlier evidence, the defendant explained his satisfaction with the fact that he was able to hire the plaintiff:
When Mr Watson came to work for me, as an employee, I was elated to have him come on board because of his experience. He was held very high. His credibility is very high in the industry. He's a very, very experienced man. And a very good operator. And so therefore, as I said, without repeating myself, that with our protocol, we never employed anybody with any less than three years' experience in the industry. So to answer your question, there was no manual. If someone after 3 or 10 years needed a manual to do this job, then there's a problem.
There was no apparent cost, no downside, to a simple instruction to drivers to never enter a pen to deal with a balking animal. It appears that a method other than entering the pen was known to drivers, including the plaintiff. There was no apparent cost to the employer however to reinforce that knowledge with a plain instruction that that was the method to be used in these circumstances.
The defendant expected his experienced employees to know what to do. He particularly expected the plaintiff to know what to do. It may be that the defendant thought that it was presumptuous for him to tell the plaintiff how the job should be done or how it should not be done. It was however his duty as employer to give his employees, including the plaintiff, appropriate directions to carry out their work safely. His failure to do so here, by forbidding employees to enter pens in the circumstances described above was, I find, a breach of that duty of care.
I find that the failure to give this instruction to drivers, and to instruct them that the three man method was the only acceptable way to deal with a balking animal, was a breach of the defendant's duty at common law, and pursuant to the provisions of the OSHA to 'so far as practicable, provide and maintain a working environment in which the plaintiff was not exposed to hazards'. (emphasis added)
His Honour then addressed the question of causation:[54]
The failure to give directions of this kind was not based on some view that employees in general or the plaintiff in particular would not adhere to that direction. To the contrary, the plaintiff was regarded by the defendant as a good employee who followed instructions. There is no reason for me to reach a different conclusion.
I conclude that had the plaintiff been instructed to never enter a cattle crate with a balking animal, had he been instructed that in dealing with a balking animal he was never to enter the crate but was to use the three man method, he would probably have obeyed those directions. That is particularly the case on the occasion that he was injured. The problem with loading was that of Mr Page, not the plaintiff. It was properly a problem for Mr Page to resolve. I understand of course that from the plaintiff's perspective he was acting as part of the defendant's 'team' and trying to help a fellow driver.
Had the three man method been used on 18 February 2015, I conclude that the plaintiff would not have been injured.
And, while this is not part of any pleaded case, had such a direction been given there is a fair chance that Mr Page would not have behaved as indecisively as he did on this occasion, prompting the plaintiff's intervention.
I find that the defendant's breach of duty caused the accident here. In closing submissions the defendant accepted that 'the plaintiff sustained injuries in [the Cullalla accident] during the course of his employment'. (emphasis added)
[54] Primary reasons [158] ‑ [162].
Finally the learned trial judge dealt with the issue of contributory negligence:[55]
[55] Primary reasons [163] ‑ [176].
The plaintiff was completely alive to the risk that arose from entering the cattle crate in the circumstances here. He was completely aware of the unpredictability of all cattle, and the magnitude of the risk represented by a brindled north‑west bull. That knowledge somehow co‑existed with his beliefs that it was nonetheless possible, at least in some circumstances, to predict an animal's behaviour, to detect whether the animal was bluffing or in earnest, and to dominate an animal like this by force of will.
The plaintiff was aware that there were alternative methods for dealing with the situation and that one of them was the three man method described by the defendant in his evidence. With just one more person, that safer method could have been used, substantially reducing the chance of the kind of injury that happened here. Had it been used here I conclude that the plaintiff would not have been injured as he was.
The plaintiff's reason for not taking the time to find a third person or even a fourth person to assist is not persuasive. It must be observed that it should have been the role of Gary Page to organise that, but on all of the evidence, he was not dealing with the situation in a particularly sensible way. The plaintiff observed his inability to deal with the situation and, as part of the team, took responsibility to resolve it. It seems unlikely to me that he would not have asked for Mr Page's permission first, or at least told Mr Page what was planned, but that does not much matter. Given what was apparently a moment of indecision on Mr Page's part, it was open to the plaintiff to call for another driver, or two more if thought necessary, to deal with the situation in the safer way described by the defendant.
I have set out above the plaintiff's reasons for choosing one method rather than the other. There was obviously a degree of tension or perhaps inconsistency between the recognition on the one hand that a dangerous animal of this size is unpredictable, and the notion that it could still be dominated by force of will. The plaintiff's explanation that no one else was available to help him and Mr Page does not withstand close scrutiny. I accept however that with a strong sense of the need to get the job done, there may have been a natural human inclination to try to save time.
However, after the plaintiff was injured by the bull, Lewis and Kylie helped Gary Page finish loading. They were there because the defendant's four drivers had effectively arrived at Cullalla in a convoy. There was no evidence at trial as to how they finally managed to get the bull in the forward pen, after the accident.
The plaintiff acknowledged in his evidence that other employees of Ward's were at Cullalla. His evidence that 'they weren't in the same vicinity as I was' is called into question by his evidence that they appeared right after he was injured.
Kylie and Lewis helped the plaintiff load his trailers after he was injured. The plaintiff then drove to Fremantle Wharf and Kylie was behind him. Kylie helped the plaintiff unload at the Fremantle Wharf, 'plus the boys that are down in the wharf, they helped unload as well'. When the plaintiff returned to Cullalla for another load:
I backed up on the ramp and there was a bloke up there called Drew. Excellent bloke with cattle. He loaded it for me. And then I went and got my weigh bill and went back down and done my last load. When I got down there, Kylie helped me again cause he was behind me. That was the routine we were in.
In cross‑examination it was put to the plaintiff that it was open to him to ask for help in this situation and that with, 'a few minutes you could have rounded up the other people to help, couldn't you?' To this he answered, 'I could have, yes … that's – that was one – one way of doing it. But I assessed the situation and the situation didn't require that'.
I find that, if the plaintiff had taken a few minutes more, it would have been possible to organise a third or fourth person to assist Mr Page. I find that the failure to do so, and the method that the plaintiff chose to deal with the problem, fell below the standard of a driver acting reasonably for his own safety in the circumstances.
I find that the plaintiff's own negligence did contribute to the accident and the injury that he received.
Having determined that the plaintiff was contributorily negligent it is necessary to apportion the liability, reducing the damages that would otherwise be recoverable by the plaintiff, 'to such extent the court thinks just in accordance with the degree of negligence attributable to the plaintiff': Law Reform (Contributory Negligence and Joint Tortfeasors' Contribution) Act 1947 (WA), s 4(1).
That requires a weighing and a comparison of the conduct of both plaintiff and defendant. In making that comparison I am conscious of the fact that the plaintiff's exposure to this risk of harm arose out of the employment relationship and, '… the circumstances that the employment demanded, and obtained, the respondent's concentration upon it, and involved a risk of danger to which the respondent had become habituated …': The Commissioner of Railways v Ruprecht (1979) 142 CLR 563.
The plaintiff's conduct was, I am satisfied, motivated by a well‑meaning but ill‑advised desire to facilitate both his employer's work and the perceived demands of loading at the feedlot. By comparison, the defendant's breach of duty arose despite a seemingly clear and objective understanding of the risk and the means of alleviating it, and an apparently conscious decision to leave every employee to act at their own discretion to deal with these situations.
In my view an appropriate division of responsibility here is a finding of 80% liability to the defendant and 20% to the plaintiff.

Grounds of appeal

There are five grounds of appeal, which are follows:
1.(a) The learned trial Judge erred in law by articulating the risk of harm by reference to what the Appellant could have done to have avoided the accident; rather than identifying a risk on the basis of what was reasonably foreseeable (without hindsight);
(b)the risk which should have been articulated was whether it was reasonably foreseeable that an experienced cattle transport operator would choose to climb into an enclosed trailer to move a belligerent bull with his mere presence and without any barrier between them;
(c)the learned trial Judge should then have determined whether that risk was reasonably foreseeable in the sense that it was not farfetched or fanciful.
2.Further,
(a)the learned trial Judge erred in law in that he used hindsight to determine breach of duty by reference to what the Appellant could have done to have avoided the accident; rather than what a reasonable employer, in the exercise of ordinary foresight would have done, if anything, in response to the risk, and, inter alia, the degree of probability of it occurring;
(b)the learned trial Judge needed to consider whether in the exercise of reasonable foresight, and having regard to the obviousness and magnitude of the risk, and the improbability of an experienced operator taking such a risk, a reasonable employer would warn or direct an experienced operator never to get into an enclosed and confined trailer with a belligerent bull, and if so, the terms of any such warning or direction.
3.Further,
(a)the learned trial Judge erred in law and fact in the way he determined causation in that, having erroneously approached breach of duty on the basis of what the Appellant could have done to have avoided the accident, a finding of causation was almost inevitable;
(b)the learned trial Judge should have approached breach on the basis of what warning or direction, if any, a reasonable employer, would have given in response to the foreseeable risk of harm, and then determined what actually happened in the accident, and then assessed whether the warning/direction, in the terms that it should have been given, would have avoided the accident.
4.Further,
(a)the learned trial Judge erred in law and fact in not resolving the fundamental differences between the Respondent and Mr Page concerning the circumstances of the accident, which were relevant to breach (what actually happened), causation (what difference a warning or direction would have made to the outcome), and apportionment of liability (having regard to the actual conduct of the Respondent);
(b)the learned trial Judge should have found that the Respondent had failed to discharge his onus of proof in relation to his allegation that he entered the trailer with the bull because there were two of them (he and Mr Page), and his Honour should have decided the matter on the basis that despite claiming he had enlisted the assistance of Mr Page, the Respondent had entered the trailer on his own to intimidate and bluff a belligerent northwest bull despite the obvious risks, and without regard to the likely consequences if his approach failed.
5.The learned trial Judge erred in law and fact in apportioning liability in that a finding of 20% against the Respondent was manifestly inadequate having regard to the Respondent's experience, the obviousness and magnitude of the risk, his knowledge of the risk, his knowledge of an alternative safe method and his reckless conduct in relation to his own safety in entering the trailer with the northwest bull when it was unnecessary to do so (as he well knew).

Duty of care owed by an employer to an employee

There was no question in the present case, and no suggestion to the contrary in the appeal, that the appellant, as employer, owed the respondent, as employee, a duty to take reasonable care for his safety. It is necessary, however, in order to put the grounds of appeal in their proper context to make some brief observations in relation to the nature of that duty of care.
The duty of care in a case such as the present arises from the employment relationship between the appellant and the respondent and obliged the appellant to take reasonable steps to provide a safe working environment. It is a non‑delegable duty of care involving 'a special responsibility or duty to see that care is taken'.[56] The description of the duty as being non‑delegable in the employment context is a proposition of law concerning the nature or content of the duty.[57] The employer's duty at common law extends to giving the employee directions in the performance of the work where directions might reasonably be thought to be required to secure the employee from danger or injury.[58]
[56] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 687 (Mason J); Leichardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22 [6] (Gleeson CJ).
[57] Leichardt Municipal Council v Montgomery [6] (Gleeson CJ); cf. AD & SM McLean Pty Ltd v Meech [2005] VSCA 305; (2005) 13 VR 241 [29], where Nettle JA (Chernov JA & Hollingworth AJA agreeing) said, in effect, that other than with respect to the established categories of non‑delegable duty such as in the employer/employee relationship, the question of whether a defendant owed a non‑delegable duty of care is a question of fact.
[58] Best Bar Pty Ltd v Warn [2019] WASCA 15 (Best Bar Pty Ltd v Warn) [38] (Quinlan CJ, Murphy & Mitchell JJA).
In that context three features of the duty arising from the employment relationship are relevant to the issues in the present appeal.
First, an employer's obligation, in discharging its duty to take reasonable care, 'is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system'.[59] As the High Court said in McLean v Tedman:[60]
Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6^th ed. (1983), pp 480 ‑ 481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.
[59] McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 (McLean v Tedman), 313 (Mason, Wilson, Brennan & Dawson JJ; Gibbs CJ generally agreeing); Best Bar Pty Ltd v Warn [39] (Quinlan CJ, Murphy & Mitchell JJA).
[60] McLean v Tedman 313 (Mason, Wilson, Brennan & Dawson JJ)
Secondly, and relatedly, in devising a safe system of work, the employer must have regard to the possibility of error, and even carelessness, on the part of its employees. As the High Court stated in Czatyrko v Edith Cowan University:[61]
If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.
[61] Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 (Czatyrko v Edith Cowan University) [12] (Gleeson CJ, McHugh, Hayne, Callinan & Heydon JJ).
Similarly, the employer is bound to have regard to the risk of misjudgment by the employee in performing the allocated task.[62]
[62] Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872, 873 (Mason, Murphy, Brennan, Deane & Dawson JJ); McLean v Tedman 312.
Thirdly, it bears repeating that, as with any common law duty of care, the employer's duty is a duty to take reasonable care; it is not a duty to safeguard employees from all perils, or some more stringent requirement of prevention.[63]
[63] See Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41 [18] (Pullin JA; Martin CJ and Newnes JA agreeing); M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 (M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2]) [156] (Murphy JA). Best Bar Pty Ltd v Warn [38] (Quinlan CJ, Murphy & Mitchell JJA).
In this case, the duty was, in substance, to take reasonable steps to ensure that the loading and unloading of cattle was carried out in a safe manner.[64]
[64] Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 (Andar) [54] (Gleeson CJ, McHugh, Gummow, Hayne & Heydon JJ).
What is reasonable care is a question of fact to be determined in each particular case. Regard will be had (amongst other things) to the likelihood of danger, the gravity of injury and the means of avoiding it.[65] The standard of care is not a low one in an employment context.[66] As discussed below, it is in that context that issues of 'obviousness' of a risk and the experience of the relevant employees may be relevant.
[65] Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18, 26 (Dixon CJ & Kitto J).
[66] O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 (O'Connor v Commissioner for Government Transport) 230 (Dixon CJ, Webb, Fullagar, Kitto & Taylor JJ); Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 308 (Mason, Wilson & Dawson JJ).
We now turn to grounds 1 and 2.

Grounds 1 and 2 – foreseeability and the question of breach

It is convenient to deal with grounds 1 and 2 together. They are both concerned with the question of breach and, in particular, what was required by the exercise of reasonable care in the circumstances of the present case. Indeed, at the hearing of the appeal senior counsel for the appellant acknowledged that grounds 1 and 2 were not, in truth, separate grounds.[67]
[67] Appeal ts 15.
Much of the appellant's case in relation to grounds 1 and 2, with respect, paid insufficient regard to the nature or content of the duty of care owed by the appellant. The duty was to take reasonable steps to ensure that the loading and unloading of cattle was carried out in a safe manner. Performance of the duty could not be delegated to his workforce.

Ground 1

The gravamen of ground 1, as it was articulated in the appellant's written submissions, was that the relevant 'risk', properly identified, was whether it was reasonably foreseeable that an experienced cattle operator would enter a confined and enclosed trailer with a large and unpredictable animal in order to bluff the animal with his presence to move into a pen in the trailer.[68]
[68] Appellant's submissions [16] (WAB 8).
The appellant's approach, in this regard, commences the analysis of breach without sufficient regard to the anterior question of the content of the duty. Duties of care are not owed in the abstract – rather, they are obligations of a particular scope and may be more or less expansive, depending on the relationship in question.[69]
[69] Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 [43] (Gummow J); Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51 [47] (French CJ, Gummow, Hayne, Crennan & Bell JJ).
Further, the appellant's approach, as senior counsel acknowledged at the hearing of the appeal, is apt to confuse the issue of 'foreseeability' (as it relates to the identification of risks in relation to which there is a duty to take reasonable care) with the question of the likelihood of the risk eventuating (which forms part of the consideration of the response of the reasonable person to take precaution against that risk).
To explain what we mean by this it is necessary to return to Mason J's judgment in Wyong Shire Council v Shirt.[70]
[70] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, (Wyong Shire Council v Shirt).
As his Honour explained in that case, foreseeability of the risk of injury and the likelihood of that risk occurring are two different things and are relevant at different stages of the inquiry into breach.
In that context, 'foreseeability' is concerned only with the identification of those risks of injury in relation to which the defendant's general duty of care extends. The identification of a 'foreseeable risk' is the first step in the determination of whether there has been a breach of duty. The test for whether a risk of injury is 'foreseeable' in this context is relatively undemanding.[71] A 'foreseeable risk' is simply one that is not far‑fetched or fanciful.[72]
[71] Best Bar Pty Ltd v Warn [40] (Quinlan CJ, Murphy & Mitchell JJA).
[72] Wyong Shire Council v Shirt 48 (Mason J).
In assessing whether a risk of injury is foreseeable, it is sufficient if the class (or kind) of injury is foreseen as a possible consequence of particular conduct. It is not necessary to be able to foresee the particular injury. Nor is it necessary that the precise sequence of events leading to injury be foreseen.[73]
[73] Best Bar Pty Ltd v Warn [42] (Quinlan CJ, Murphy & Mitchell JJA).
In the present case, the duty was to use reasonable care to ensure that the loading and unloading of cattle was carried out in a safe manner. The relevant risk was the risk to employees of the appellant of injury arising from contact with cattle when undertaking the task of loading cattle into a B‑train trailer.[74]
[74] cf. Primary reasons [138].
The risk was not, as the appellant's written submissions initially contended, the risk that an experienced cattle operator would enter a trailer in those circumstances in order to bluff the animal with his presence to move into a pen in the trailer. Such an approach focuses too closely on the precise sequence of events in which the risk of injury might eventuate.
For that reason, ground 1 must be rejected.

Ground 2

It is ground 2 that, as senior counsel put it, was 'really the crux of [the] appeal'; namely, what steps a reasonable employer would take to avoid the risk of injury in the discharge of the duty.[75]
[75] Appeal ts 15.
As noted earlier, regard is had to the likelihood of danger, gravity of injury and the means of avoiding it. The question, whilst bearing in mind the nature or content of the duty, in substance concerns the second step identified by Mason J in Wyong Shire Council v Shirt in deciding whether there has been a breach of duty. Adopting and adapting what his Honour said in that case, having identified the foreseeable risk of injury:[76]
[I]t is then for the tribunal of fact to determine what a reasonable [employer] would do by way of response to the risk. The perception of the reasonable [employer's] response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable [employer] placed in the defendant's position.
[76] Wyong Shire Council v Shirt 47 ‑ 48 (Mason J) (rendered in terms of the reasonable employer).
It is in relation to this issue that the appellant's references to the 'foreseeability' of the respondent entering a trailer in the circumstances that he did, were in truth directed. That is, the appellant was referring to the extreme 'unlikelihood' of the probability of the occurrence of the risk as a critical consideration in determining what a reasonable employer would do by way of response to that risk. As this Court has previously remarked, references to 'foreseeability' in this context are apt to be misunderstood. When evaluating the response of a reasonable person to a foreseeable risk, the court is more concerned with the probability or the likelihood of the relevant harm than with its 'foreseeability'.[77]
[77] Gors v Tomlinson [2020] WASCA 164 (Gors v Tomlinson) [61] (Quinlan CJ, Murphy & Vaughan JJA).
In this context, the appellant's reliance on the unlikelihood of an employee entering a trailer with a baulked bull was part and parcel of the appellant's reliance upon the fact that the risk to the respondent in doing so was 'obvious'. Obviousness and unlikelihood were, in essence, two sides of the same coin. That is, it was the obviousness of the risk in entering a trailer in those circumstances that made it so unlikely that an employee would do so.
Related to this is the appellant's emphasis upon the respondent's experience (and the appellant's practice of only employing experienced drivers) as a basis for contending that reasonable care did not require that the appellant instruct his employees never to enter a trailer with a baulked animal but, rather, to use the three man method in those circumstances.
Finally, in this context, the appellant's reference in ground 2 to the learned trial judge having used 'hindsight' to determine the question of breach was, ultimately an emphatic way of submitting that his Honour was in error to conclude that a reasonable employer would give such an instruction. As the appellant submitted:[78]
Absent hindsight, it would have been almost unthinkable that an experienced operator would enter a confined pen in the circumstances and attempt to bluff such an animal, and a reasonable employer would have felt foolish in these circumstances telling experienced operators not to do so. It would be akin to an employer telling an experienced driver to never drive through an intersection without checking that there was no approaching traffic.
[78] Appellant's submissions [33] (WAB 12).
While ground 2 was expressed as an alleged error of law, properly understood, in our view, it raises an error of fact. The standard of the response to be ascribed to a reasonable employer in the position of the appellant was, ultimately, a question of fact to be determined in the context of the particular facts and circumstances of the case.[79]
[79] Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [15] (Buss P, Murphy & Vaughan JJA).
Of course, the learned trial judge's conclusion as to breach is no less appellable for being a finding of fact. Whether, on a given set of facts, negligence on the part of the defendant is established must be determined by an appellate court for itself, without the appellate restraint or deference that applies to discretionary decisions. The standard of appellate review is one of correctness. In deciding upon the correct conclusion, the appellate court gives weight to the primary judge's conclusion, but must reach, and give effect to, its own conclusion.[80]
[80] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551 ‑ 552 (Gibbs ACJ, Jacobs & Murphy JJ); Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205 [57] (Buss P, Murphy & Beech JJA); Nikolich v Webb [2020] WASCA 169 [123] (Murphy, Beech & Vaughan JJA).
While this question of fact must be determined in the context of the particular facts and circumstances of the case, it is useful to commence consideration of the question with some general remarks in relation to the issues of 'obviousness' and 'experience'.

Obviousness

There is no question that the risk in the present case was obvious. Indeed, the fact that it was obvious underscores the fact that it was foreseeable. A risk of harm that is obvious is, plainly, foreseeable.[81]
[81] Gors v Tomlinson [60] - [61] (Quinlan CJ, Murphy & Vaughan JJA).
It is also the case that the fact that a risk is obvious will be relevant to the perception of the reasonable person's response to that risk. As Murphy JA observed in M R & R C Smith Pty Ltd t/as Ultra Tune (Osbourne Park) v Wyatt [No 2]:[82]
The obviousness of the risk and the remoteness of the likelihood that others will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response to a foreseeable risk. In some circumstances, reasonableness may require no response to a foreseeable risk.
[82] M R & R C Smith Pty Ltd t/as Ultra Tune (Osbourne Park) v Wyatt [No 2] [162] (Murphy JA). See also Best Bar Pty Ltd v Warn [40] (Quinlan CJ, Murphy & Mitchell JJA).
The obviousness of a risk is, however, only one of a number of considerations relevant to the assessment of reasonableness. It is not, on its own, determinative. As the High Court said in Thompson v Woolworths (QLD) Pty Ltd:[83]
The factual judgment 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 one 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.
[83] Thompson v Woolworths (QLD) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [37] (Gleeson CJ, McHugh, Kirby, Hayne & Heydon JJ).
Similarly, in Vairy v Wyong Shire Council, McHugh J observed that:[84]
Leaving aside cases of volenti, however, it is not the law that a defendant has no duty to take reasonable care for the safety of the plaintiff or that no warning is required if the risk of injury is, or ought to be, obvious to the plaintiff. The logical consequence of such a proposition would be that, except in those cases where the danger was unknown to or unobservable by the plaintiff, the defendant would not be required to take any action to eliminate the most dangerous risk of injury. In most cases, the greater the danger, the more obvious is the risk of injury.
Discharge of the defendant's duty requires the defendant to eliminate a risk – whether or not it is obvious – whenever it would be unreasonable not to do so. .... The obviousness of the risk goes to the issue of the plaintiff's contributory negligence, rarely to the discharge of the defendant's duty.
[84] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [45] ‑ [46] (McHugh J).
Accordingly while the obviousness of a risk is a relevant consideration in the assessment of what a reasonable person would do in response to that risk, the weight to be accorded to obviousness will vary from case to case, in light of the other considerations relevant to that assessment including the content of the duty.
An obvious risk in the employment context which materialises may give rise to contributory negligence on the part of the employee,. but it does not exculpate the employer insofar as the risk is one which the employer was required to guard against by taking reasonable steps to provide a safe system of work.[85]
[85] Nicol v Allyacht Spars Pty Ltd [1987] HCA 68; (1987) 163 CLR 611 (Nicol); Andar [54] (Gleeson CJ, McHugh, Gummow, Hayne & Heydon JJ).
On the other hand, an employee who fails to take reasonable care for their own safety in circumstances where the employer has discharged its obligations to the employee, including by the provision of a safe system of work, cannot recover in negligence against the employer. See, for example, O'Connor v Commissioner for Government Transport[86] and Smith v Broken Hill Proprietary Co Ltd.[87]
[86] O'Connor v Commissioner for Government Transport 229 ‑ 230 (Dixon CJ, Webb, Fullagar, Kitto & Taylor JJ).
[87] Smith v Broken Hill Proprietary Co Ltd (1957) 97 CLR 337, 343 ‑ 4 (Taylor J).
Of course, these common law principles are subject to alteration by statute. In this State, for example, the law has been changed, such that (in many circumstances) a person will not owe a duty of care to another person to warn of an obvious risk. That is the effect of s 5O of the Civil Liability Act 2002 (WA) (Civil Liability Act).[88]
[88] See generally, Gors v Tomlinson and Nikolich v Webb.

As the learned trial judge observed in the present case, however,[89] s 5O of the Civil Liability Act has no application to a claim by an employee for damages caused by the negligence of the employee's employer.[90]
[89] Primary reasons [137].
[90] Civil Liability Act, s 3A; Workers' Compensation and Injury Management Act 1981 (WA), pt IV div 2.
The principles of general law identified above, therefore, applied in the present case.
In any event, the issue in the present case is not simply whether there should have been a warning; the alleged breach was concerned with a failure to instruct – it was concerned with a failure to implement a safe system of work for an aspect of the work that was to be performed by the respondent's drivers. Again, it must be recalled that the general duty of care in the present case was owed by the appellant as employer. In that context the question of reasonableness will be answered by reference to the appellant's duty to provide a safe system of work and his capacity to instruct the employees to use that system (and to enforce those instructions).
It has been sometimes said, for example, that the employer's duty includes a duty to warn, particularly in relation to 'unusual or unexpected risks'.[91] Those references, however, should not obscure the broader nature of the employer's duty to provide a safe system of work, and to maintain and enforce that system.
[91] O'Connor v Commissioner for Government Transport, 229 (Dixon CJ, Webb, Fullagar, Kitto & Taylor JJ); McLean's Roylen Cruises Pty Ltd v McEwan [1984] HCA 43; (1984) 58 ALJR 423 (McLean's Roylen Cruises), 425 (Gibbs CJ; Mason, Wilson, Brennan & Dawson JJ agreeing).
The importance of this distinction was recognised by the High Court in Czatyrko v Edith Cowan University:[92]
Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land. The case for the appellant was not that he should have been warned by his employer that if he fell off the truck he might suffer injury, or that if he stepped off the back of the truck into space he would fall. It was not a question of warning the appellant of a risk. It was a question of creating a risk by failing to adopt a safe system of work.
[92] Czatyrko v Edith Cowan University [14] (Gleeson CJ, McHugh, Hayne, Callinan & Heydon JJ).
As the passage recognises, to characterise a failure to provide a safe system of work (by instruction or otherwise) as merely a 'failure to warn' fails to acknowledge the nature of the prior relationship between employer and employee and implies a degree of choice (or freedom of action) on the part of the employee that the employment relationship does not warrant.

Experience

As with obviousness, the experience of an employer's employees may also be a relevant consideration in evaluating the perception of the reasonable person's response to a particular risk.
In that regard the appellant referred to the decision of the High Court in McLean's Roylen Cruises Pty Ltd v McEwan. In that case, the plaintiff was employed by the owner of a barge. As the barge approached a jetty, the plaintiff, who was a deckhand, threw a line to secure the barge against the side of the jetty, and his arm was caught against the jetty. The Court said:[93]
The learned trial judge was clearly correct in saying that 'Making a line fast in the course of coming alongside is one of the commonest of the tasks a deckhand is called to perform'. Moreover, it should be obvious to anyone who has performed such a task that there is a danger that if the deckhand allows his arm to extend beyond the rail of the vessel it may be caught between the vessel and the jetty to which it is being made fast. It is not reasonable to expect that the employer of an experienced deckhand should be obliged to warn him of a danger which is obvious, and of which he is in fact already fully aware, unless there is some circumstance that indicates that a warning is necessary – and there was no circumstance of that kind in the present case. … [There was nothing] in the evidence that supports the view that the [employer] failed to take reasonable care for the safety of [the deckhand] when it did not ensure that [the deckhand] was warned of the danger involved in tying up the barge to the jetty.
[93] McLeans Roylen Cruises, 425 (Gibbs CJ; Mason, Wilson, Brennan & Dawson JJ agreeing); see also, albeit in the context of an independent contractor, Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 [72] (Heydon JA; Meagher JA & Foster AJA agreeing).
The Court also recognised in that case that 'no detailed rules can be laid down', and that the question was 'simply' whether in the circumstances of the case the taking of reasonable care required the particular step to be taken.[94]
[94] McLean's Roylen Cruises, 425 (Gibbs CJ; Mason, Wilson, Brennan & Dawson JJ agreeing).
As with obviousness, the experience of employees is one factor relevant to the assessment of reasonableness and is not, on its own, determinative. Indeed, in our view, depending upon the circumstances, there may be real dangers associated with solely relying upon the experience of employees. Employees, despite their experience, may nevertheless be of varying abilities and may, indeed, have developed poor or idiosyncratic habits in relation to the performance of particular tasks. Just as an employer, in devising a safe system of work, must take into account the possibility of thoughtlessness, inadvertence or carelessness on the part of employees, so too an employer should be alive to the possibility of hubris or complacency.
In this respect, in our view, the following remarks of Forrest J in Iannello v BAE Automation and Electrical Services Pty Ltd are instructive:[95]
It matters not that an employee is experienced, or for that matter has played a part in devising the system of work, as was the case in Andar. The obligation rests squarely upon the employer to devise and implement a safe system of work.
As I have said, an employer cannot avoid that duty by relying solely upon the expertise of the employee. It may be that experience is a matter to take into account when formulating the system of work – but there must be consideration of the issue. Further, it may, in an appropriate case, be a relevant consideration to the issue of contributory negligence, but experience, simpliciter, of an employee cannot, and must not, relieve an employer of its obligation to give appropriate consideration to devising and implementing a safe system of work where there is, as there was in this case, a real risk of serious injury.
[95] Iannello v BAE Automation and Electrical Services Pty Ltd [2008] VSC 544 [76] ‑ [77] (Forrest J).
It is to be recalled, in this context, that while the general duty of care is owed by the employer to each individual employee (in this case by the appellant to the respondent), insofar as the obligation to provide a safe system of work is concerned, that obligation is to provide such a system to the employer's employees generally.
Accordingly, while the experience of an employer's employees generally will be relevant to the formulation of a system of work, ultimately, a safe system of work is one that is safe for an 'average' worker within the employer's enterprise. It is not a system which is safe only for those of superior skill whose attention never wanders.[96]
[96] McLean v Tedman 312 (Mason, Wilson, Brennan & Dawson JJ).
In light of these general observations, we turn to the particular circumstances in the present case.

Ground 2 – disposition

The learned trial judge's ultimate finding of breach in the present case had two essential aspects to it, namely that the appellant was negligent in:
(a)failing to instruct his employees never to enter a trailer with a baulking animal;[97] and
(b)failing to instruct his employees that the three man method was the only acceptable method for dealing with a baulking animal.[98]
[97] Primary reasons [155] ‑ [156].
[98] Primary reasons [157].
Two observations should be made in relation to this finding.
First, the two aspects of the finding are clearly related and complementary. It is the availability and practicability of the three man method that enabled the finding to be made that reasonable care required that there be a prohibition on employees entering a trailer with a baulking animal.
Secondly, the failure found by the learned trial judge was not simply a failure to issue a warning. It may properly be described as a failure to establish, and maintain, a safe system of work. The putative instruction never to enter a trailer with a baulking animal was part and parcel of the only safe system of dealing with a baulking animal (namely, the three man method).
The issue raised by ground 2 is, therefore, whether the learned trial judge erred in concluding that the failure to so instruct his employees (including the respondent), was a failure to take reasonable care in all of the circumstances.
We are not satisfied that the learned trial judge erred in so finding. In light of all the facts and circumstances, in our view, the learned trial judge was correct to conclude that the appellant was in breach of his duty of care as the respondent's employer.
We have reached that conclusion for the following reasons.
First, the incidence of cattle baulking whilst being loaded was well recognised in the industry, albeit that it occurred fairly rarely. Moreover, cattle baulking stood out as 'particularly significant' amongst the serious risks of injury to those loading cattle, particularly cattle from the north‑west.
Secondly, the magnitude of the risk in the present case was very high. It may be properly described as grave. While the evidence at trial included reference to the particular risks associated with north‑west bulls, such as that involved in the accident,[99] close confinement with cattle of any kind posed risks of serious injury or even death.
[99] See Primary reasons [49] ‑ [54].
Thirdly, the appellant relied solely upon his employees' experience and left it entirely to them to devise a system of work.[100] As the learned trial judge found, while the appellant may have believed that his employees' knowledge as to safety would come from experience, this was necessarily an assumption on his part.[101] His Honour also found that the appellant recognised that there were different views as to how particular work-related situations should be dealt with and he was content to leave many, if not all, aspects of the work to the discretion of each driver.[102] In those circumstances, the appellant was not in a position to reasonably conclude that all of the potentially divergent approaches to avoiding or managing risks adopted by employees would align with, or be as equally efficacious as, the system or safeguards which he was required to devise or provide pursuant to his non‑delegable duty of care.
[100] The only evidence of any instruction is the emphatic prohibition on driving while under the influence of drugs or alcohol (and the misuse of fuel cards) on the letter of engagement (see [23] above).
[101] Primary reasons [151].
[102] Primary reasons [152].
In that context, in our view, it was significant that, on any view of the evidence, there was a recognition that in some circumstances it was necessary for a driver to enter a trailer with livestock. The obvious example, which all witnesses accepted, was that in the ordinary course of loading cattle, the driver would follow the draft of cattle into the trailer to close the slam gates on the lower decks (see [38] above). Indeed, the three man method itself required a worker to enter the trailer to close the slam gate, after the baulking animal had entered the required pen (see [64] above).
In these circumstances, of course, the evidence supported the conclusion that the risks associated with contact with the cattle were sufficiently low that those practices could be conducted safely. Those practices, nevertheless, underscore the fact that it is necessary to draw a distinction between those circumstances in which it was safe to enter a trailer with livestock and those circumstances in which it was not. It is not obvious that all operators would necessarily draw that line in precisely the same way.
For example, as the learned trial judge also found, one of the variations in practice which the appellant left to the 'discretion of the driver' was whether to run behind cattle on the loading ramp itself.[103] Variations such as this in the ordinary course of loading livestock, in our view, pointed to the need for a system to be established and maintained in relation to those circumstances, such as the baulking of an animal, that could properly be described as unusual.
[103] Primary reasons [86], [152]; trial ts 254.
Similarly, even accepting that a risk can properly be characterised as obvious, different persons may well have a different perception of the magnitude of the risk and whether, in certain circumstances, such a risk is worth taking. For example, while we are acutely conscious of the need not to engage in hindsight, in the present case the respondent clearly made an assessment that the risk of entering the trailer with the bull was acceptable (see [56] above). This is not to suggest that the respondent's assessment was reasonable (far from it). It simply illustrates the fact that different people may well assess risks in different ways and that it may be dangerous for an employer to assume to the contrary.
Fourthly, there was a recognised method in the industry which was accepted to be the safest method available for dealing with a baulking animal, namely the three man method. There was, objectively, no expense, difficulty or inconvenience in providing instructions that an employee was not to enter a trailer with a baulking animal, and that such a potentially hazardous situation was to be addressed by adopting the three man method. The appellant's submissions to the contrary cannot be accepted.
A theme that lay beneath the appellant's submissions was the notion that to have given an instruction to an experienced employee in relation to an obvious risk, such as the risk in the present case, might be seen as almost patronising to an experienced operator.[104] As noted earlier, the appellant said that it would be similar to an employer telling an experienced driver 'never to drive through an intersection without checking that there was no approaching traffic'. As the written submissions put it, 'a reasonable employer would have felt foolish in these circumstances telling experienced operators not to' take such a risk.[105]
[104] Appeal ts 15.
[105] Appellant's submissions [33] (WAB 12).
That submission, with respect, diverts attention from the real issue. The hazard, relevantly for present purposes, was the risk of injury in loading and unloading cattle. It was that aspect of the driver's employment by the appellant that called for the exercise of care in provision of a safe system of work. It is not to the point to refer to putative directions which might be given once the trailer is loaded and on the road. Also, for the purposes of the suggested analogy, driving through an intersection without checking for oncoming traffic is a simple task that the employer would reasonably expect any employee to undertake without instructions. It would be fanciful to regard the protection against such casual acts of negligence as requiring direction or supervision by the employer.[106]
[106] cf. O'Connor v Commissioner for Government Transport, 230 (Dixon CJ, Webb, Fullagar, Kitto & Taylor JJ).
By contrast, an employer, even with a highly skilled workforce, ought have in contemplation the means by which his employees are to safely load unpredictable 'half wild, ill‑tempered 450 kg animals'.[107] In that context, the mild embarrassment that an employer may feel at, sometimes, having to tell their employees how to 'suck eggs' is a burden that on occasion the employer must bear in the discharge of his or her duty of care.
[107] Primary reasons [135].
Against that minor inconvenience, as the learned trial judge found, there was no apparent cost or downside to issuing the instruction identified by his Honour in the present case.
In all of the circumstances, the potential consequences of the risk were so great and the expense, difficulty and inconvenience of taking appropriate action so slight, that notwithstanding that it was quite unlikely that an employee would place themselves in the position of danger that the respondent did, a reasonable employer would have ensured that such conduct by an employee was expressly prohibited.
In failing to do so, the appellant was in breach of his duty and the learned trial judge correct to so find.
Ground 2 must be rejected.

Ground 3 – causation

Ground 3 challenges the learned trial judge's finding in relation to causation, namely that:[108]
[H]ad the [respondent] been instructed to never enter a cattle crate with a balking animal, had he been instructed that in dealing with a balking animal he was never to enter the crate but was to use the three man method, he would probably have obeyed those directions.
[108] Primary reasons [159].
This was a finding of fact. In so finding, the learned trial judge properly recognised that the test of causation in these circumstances was a subjective one, namely what would this employee have done if so instructed.[109] His Honour relied upon the general character and personality of the respondent, to the effect that he was a good employee who would follow instructions, and the working environment on the day of the accident.[110]
[109] Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 (Rosenberg v Percival) [24] (McHugh J); Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474 [48] (Ipp J; Wallwork & Parker JJ agreeing).
[110] Primary reasons [158] ‑ [159]; Rosenberg v Percival [24] (McHugh J).
Ground 3 does not squarely challenge this finding of fact, although the appellant did submit that the learned trial judge failed to make a finding as to 'what actually happened' and that, had his Honour done so, it would have led to a different outcome.[111]
[111] Appellant's submissions [42] ‑ [43] (WAB 14).
The reference to 'what actually happened' in this context was a reference to the unresolved contest, on the evidence, as to whether the respondent entered the trailer with Mr Page (as the respondent said) or whether (as Mr Page maintained) the respondent entered the trailer on his own. Whether the learned trial judge erred in not resolving that issue is the subject of ground 4, to which we shall turn next.
Insofar as it relates to the finding of causation, however, we will deal with the issue now.
The appellant submits the distinction between the differing accounts of the accident were relevant to causation because, as the appellant submitted, 'it seems that the Respondent would not have entered the trailer on his own, but it seems (or at least his evidence suggested) that if there were two of them, that was otherwise safe'.[112] So, the submission continued, what if the respondent thought that the instruction did not apply if two persons entered the trailer?[113]
[112] Appellant's submissions [41] (WAB 13).
[113] Appellant's submissions [41] (WAB 13).
Alternatively, the appellant submitted, if Mr Page's account was accepted, and the respondent entered the trailer on his own, a direction (telling the respondent what he already knew) would not have made any difference.[114] Accordingly, the appellant submitted, the respondent would have entered the trailer in any event.
[114] Appellant's submissions [42] (WAB 14).
Neither of these submissions reveal error on the part of the learned trial judge.
As to the first submission, the required instruction was to never enter a trailer with a baulked animal at all and to use the three man method. Clearly it is inherent in the finding as to breach that the response of the responsible employer would have been to provide an instruction as to the safe system of work that was clear and unambiguous. To posit, as part of the counterfactual required to determine what would have occurred had the employer fulfilled its duty of care, that the employer's conduct would have remained deficient or ambiguous would be contrary to the purpose of that counterfactual.

Whether the respondent entered the trailer on the day of the accident alone, or with Mr Page, was therefore irrelevant to the counterfactual.
As to the second submission, the issue of causation was not whether the respondent would have entered a trailer in circumstances in which he was aware of the risk of doing so. Clearly the learned trial judge found that this was precisely what the respondent did. His Honour could not have made a finding of contributory negligence in the absence of such a finding. In determining what difference an instruction would have made, it was not enough for the appellant to point to what the respondent did in the absence of that instruction.
The issue of causation was whether the respondent would have entered the trailer if he had been instructed not to do so and to use another method. The answer to that question did not, ultimately, turn on whether (as the appellant's submissions tended to suggest) the respondent was careless, over-confident or an unnecessary risk-taker. The answer to that question ultimately turned on whether the respondent was disobedient.
Again, the nature of the breach informs the question of causation. The issue is not, as in the case of a mere failure to warn, whether the plaintiff would have ignored a warning. The issue is whether, having been issued with a lawful instruction by his or her employer, the plaintiff would have defied that instruction.
The learned trial judge found that the respondent probably would have obeyed the instruction. His Honour has not been shown to be in error in making that finding. The finding was based on the learned trial judge's essentially unchallenged intermediate factual findings referred to at [172] above. In that respect the learned trial judge had previously referred to the appellant's evidence that the respondent was 'a good employee who followed instructions'.[115]
[115] Primary reasons [35].
Ground 3 must be rejected.

Ground 4 – the precise circumstances of the accident

Ground 4 contends that the learned trial judge erred in failing to resolve the differences between the respondent and Mr Page in relation to the circumstances of the accident. We have already addressed this issue as it relates to causation in the context of ground 3.
A trial judge is, of course, required to deal with all of the evidence and facts that are required to determine the issues in the trial. As this Court has recently remarked, in the context of conflicting expert evidence, a trial judge should not be timorous in using his or her full advantage in seeing and hearing the witnesses to resolve conflicting evidence where there is no other way of doing so. Not only must an appeal court give respect to the advantage of the trial judge, the effective discharge of the appeal court's function will often depend upon it.[116]
[116] East Metropolitan Health Service v Ellis [2020] WASCA 147 (East Metropolitan Health Service v Ellis) [396] (Quinlan CJ, Mitchell & Beech JJA).
Nevertheless, as the Court of Appeal in Victoria said in Fletcher Construction v Lines Macfarlane & Marshall:[117]
The duty to deal with facts or evidence is not absolute. The evidence must be significant in the sense that, unless disposed of, it stands in the way of the Court's conclusions. The Court need not deal in terms with evidence when its importance falls away because of the manner in which the Court disposes of the case.
[117] Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1 [157] (Charles, Buchanan & Chernov JJA); East Metropolitan Health Service v Ellis [389] (Quinlan CJ, Mitchell & Beech JJA).
In the present case, there is no doubt, as we have previously set out, that there were a number of differences between the respondent and Mr Page in relation to the events leading up to the accident. The issue raised by this ground is the extent to which the learned trial judge was required to resolve those differences. While there are various aspects of the differences between the respondent and Mr Page we will deal with them under the umbrella of the respondent's contention that he was 'abandoned' by Mr Page.
As will be apparent from the summary of the respondent's case at [68] ‑ [87], while the respondent pleaded, and opened, his case on the basis that the respondent had been 'abandoned' or 'deserted' by Mr Page (and the parties apparently joined issue as to whether that occurred), it was never made clear whether, or how, the resolution of that issue was relevant to the real issues in the trial.
Certainly, the respondent's opening, which identified the real issue as being whether the appellant was in breach of his duty of care in failing to issue an instruction as to a safe system of work, did not identify how the resolution of the different accounts of the accident would assist in the resolution of that issue. In relation to the 'abandonment' allegation, it would appear that counsel for the respondent simply started a hare, and counsel for the appellant pursued it, without either of them giving real attention to its significance.[118]
[118] Goldsmith v Sandilands [2002] HCA 31; 76 ALJR 1024 [1] (Gleeson CJ).
Even in closing, the learned trial judge sought to have counsel identify the significance of the 'abandonment' allegation, but with little success.[119]
[119] Trial ts 323, 360 ‑ 361.
It may be that the matter was pursued because the respondent, in his own mind, appeared to attach significance to the fact that, on his account, Mr Page had opened the door of the trailer causing the bull to run (see [57] above). Indeed, it was one of the peculiar features of the case that, notwithstanding the accident having occurred, even when he gave evidence the respondent still appeared to remain of the view that what he did was appropriate, if only Mr Page had not left the trailer.
That was not, however, the manner in which the respondent's case was presented by counsel at trial. It was not suggested that two persons entering a trailer together to deal with a baulking animal was a safe alternative method of work. Quite the contrary. The case was conducted on the basis that to do so was unsafe and unreasonable. The respondent's unreasonable belief that it was appropriate to enter the trailer was, therefore, not relevant to whether the appellant should, in the exercise of reasonable care, have instructed the respondent never to do so and whether the respondent would have obeyed that instruction.[120] In the latter respect, as explained in relation to ground 3, a rejection of the respondent's evidence would not have provided a platform to find against the respondent on the question of causation in any event given the learned trial judge's other unchallenged findings – particularly insofar as those findings were based on the appellant's own evidence.
[120] In addition, it could hardly be suggested, and it was not suggested, that Mr Page's alleged actions in opening the trailer door to enable the bull to escape was a novus actus interveniens.
It was therefore not necessary for the learned trial judge to reach a conclusion as to whose evidence he preferred as to whether there was discussion between the respondent and Mr Page and whether they entered the trailer together. It was sufficient, for the purposes of liability, that the respondent had entered the trailer in circumstances in which, had he been properly instructed, he would not have done so.
When it came to the issue of contributory negligence, it was arguably relevant to the 'degree of negligence attributable' to the respondent,[121] that the respondent believed it was possible, in some circumstances, to predict an animal's behaviour and to dominate the animal by force of his will. That belief was relevant to the intentional and deliberate act of the respondent in entering the trailer with a baulking animal.
[121] Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, s 4.
The learned trial judge did, however, make a finding to that effect in the context of contributory negligence. What Mr Page did, or did not do, after that point could not affect the respondent's own culpability.
In all of the circumstances, in our view, having regard to the manner in which the learned trial judge disposed of the case, it was not necessary for his Honour to reach a finding as to whose version of the events leading up to the accident he preferred.
Ground 4 must fail.

Ground 5 – contributory negligence

Ground 5 contends that the learned trial judge erred in law and fact in apportioning liability in that a finding of 20% against the respondent was manifestly inadequate.
The general principles in relation to apportionment under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 were recently considered by this Court in Wreford v Lyle [No 3].[122]
[122] Wreford v Lyle [No 3] [2021] WASCA 20 (Wreford v Lyle [No 3]) [136] (Quinlan CJ, Murphy & Pritchard JJA).
A trial judge's decision on apportionment was a discretionary one to which the principles in House v The King apply.[123] In O'Connor v Insurance Commission of Western Australia,[124] Buss JA (as his Honour then was) summarised the general principles in the following terms:[125]
[A]n appellate court will not interfere with a trial judge's decision on apportionment unless the judge has made the kind of error that would justify an appellate court setting aside a discretionary decision. See Penningtonv Norris (1956) 96 CLR 10 (Pennington) (15 ‑ 16). Error may be inferred from the outcome if it is outside the range of a reasonable judgment. See Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 [73].
…
An assessment of the culpability of a plaintiff and a defendant, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. See Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65, 68.
A finding on a question of apportionment, as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197, 201. It is well‑established that such a finding, if made by a judge, is not lightly reviewed. See Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, 494; Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 [84], [157]; Anikin v Sierra [2004] HCA 64; (2004) 211 ALR 621 [50] (Anikin).
[123] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[124] O'Connor v Insurance Commission of Western Australia [2016] WASCA 95 (O'Connor v Insurance Commission of Western Australia).
[125] O'Connor v Insurance Commission of Western Australia [59] ‑ [63] (Buss JA; McLure P & Mazza JA agreeing).
It involves a consideration of the degree to which the respondent departed from the standard of conduct expected of someone in his position.[126]
[126] Nicol, 618 (Mason CJ, Toohey & Gaudron JJ).
In making an assessment of contributory negligence in the context of a workplace accident, it is relevant that, as has been explained above, the employer's duty to exercise reasonable care to provide a safe system of work requires that the employer have regard to the possibility of error, misjudgment or carelessness on the part of its employees. In that context it may be that mere inadvertence or error on the part of an employee may not be sufficient to constitute contributory negligence.[127]
[127] Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321 (Liftronic) [88] (Kirby J).
In the present case, however, as the learned trial judge found, the respondent's conduct went beyond mere inadvertence; it fell below the standard of a driver acting reasonably for his safety.[128] It was therefore necessary to apportion responsibility having regard to the comparison of the culpability of each party and the relative importance of the acts of the parties in causing the damage.[129]
[128] Primary reasons [171].
[129] Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 (Podrebersek), 494 (Gibbs CJ, Mason, Wilson, Brennan & Deane JJ).
The fact specific nature of that exercise is such that little assistance is to be gained by a comparison of previous decisions. It is, however, relevant to observe that, even in a workplace context, the courts have made (and upheld) significant deductions for contributory negligence on the part of employees, even to the extent of attributing to a negligent employee the majority of the responsibility for the harm caused. In Podrebersek the High Court upheld a discount for an employee's contributory negligence of 90%. Similarly, in Liftronic, the High Court (by majority) reinstated a deduction by a jury of 60% for an employee's contributory negligence. In Nicol, the reduction for contributory negligence was 40%.
In weighing and comparing the conduct of the parties in the present case the learned trial judge characterised the conduct of the respondent as 'motivated by a well‑meaning but ill‑advised desire to facilitate both his employer's work and the perceived demands of loading at the feedlot', whereas he characterised the appellant's conduct as involving 'a seemingly clear and objective understanding of the risk and the means of alleviating it, and an apparently conscious decision to leave every employee to act at their own discretion'.[130]
[130] Primary reasons [171].
Expressing the comparison in that way, in our view, failed to give sufficient weight to the respondent's own appreciation of the nature and magnitude of the risk in the present case and the degree to which, objectively, he departed from the standard of conduct expected of someone in his position. In that regard, earlier in the Primary reasons, the learned trial judge had found that the respondent was 'completely alive to the risk that arose from entering the cattle crate in the circumstances' and 'completely aware of the unpredictability of all cattle, and the magnitude of the risk represented by a brindled north‑west bull'.[131]
[131] Primary reasons [163].
In that regard, the respondent was in no different position to that of the appellant. This was not a case in which there was any distinction able to be drawn as to the parties' knowledge as to the risks involved. Their knowledge was the same and their experience was comparable.
The real difference between the parties was that the appellant was in a position to command adherence to a safe system of work for dealing with a baulking animal (of which the respondent was aware) and to enforce that command. This was not a case in which the respondent needed to be warned as to the particular risk; it was a case in which he needed to be instructed that he must not take that risk.
So understood, the risk taken by the respondent was intentional and deliberate, driven, at least in part, by his 'belief' that the animal (a stomping bull) could be 'dominated' by force of his will and that the bull was just 'bluffing'.[132] In all of the circumstances, the respondent's deliberate decision to enter the trailer with the baulking animal was a serious departure from the standard of conduct expected from someone in his position. It was a matter that significantly increased his culpability. Indeed, as a measure of the respondent's willingness to take the risk of entering the trailer, on his own account the respondent also encouraged Mr Page to do so. While the learned trial judge did not, finally, resolve the question as to whether Mr Page entered the trailer with the respondent, there was no question that that was the respondent's intention.
[132] Primary reasons [132], [163], [166].
While recognising the importance of the need to exercise appellate restraint in relation to a finding such as this, we are unable to avoid the conclusion that to attribute 20% of the responsibility for the harm caused to the respondent was outside the range of a reasonable judgment as to what was 'just and equitable'.
In our view, given the relative state of the knowledge of the parties and their comparable experience, the culpability of the parties was similar. Given the appellant's greater capacity to enforce adherence to his instructions, it is appropriate the appellant should bear a greater proportion of the responsibility for the harm caused in the present case. Otherwise, in light of their comparable culpability, the apportionment of responsibility should approach parity.
In all of the circumstances, in our view, the appropriate reduction for the degree of negligence attributable to the respondent is 40%.

Conclusion

In light of the success of ground 5, the appeal should be allowed in part.
The orders made by the learned trial judge should be varied such that the judgment for the respondent be substituted so as to reflect an apportionment of liability of 60% to the appellant and 40% to the respondent.
We would hear from the parties as to the precise form of orders.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
12 MARCH 2021