Lindsay-Field v Three Chimneys Farm Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7134 of 2009

MARGARET CLAIRE LINDSAY-FIELD	Plaintiff
v
THREE CHIMNEYS FARM PTY LTD	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	25, 26, 27, 30, 31 August 2010, 1, 2 September 2010
DATE OF JUDGMENT:	29 September 2010
CASE MAY BE CITED AS:	Lindsay-Field v Three Chimneys Farm Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 436

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NEGLIGENCE – Industrial accident – Employee injured in course of work on stud farm – Employee required to remove afterbirth of a mare without assistance - Breach of statutory duty – Whether employer’s response to risk of serious injury adequate – Relevance of industry practice – Breach of duty established – Breach of statutory duty not established – Damages – Assessment of loss of earning capacity – Malec v Hutton principles.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards SC and Mr A Ingram	Clark Toop and Taylor
For the Defendant	Mr G Lewis SC and Mr J Batten	Thompsons

HIS HONOUR:

Introduction

On 28 September 2002 the plaintiff, Margaret Lindsay-Field, was kicked in the head by a mare, Sundance Girl,[1] at Newlands Stud, Avenel, where she was employed. She sustained a particularly nasty fracture of her facial bones and has been left with significant ongoing physical and psychological consequences to the extent that she has been unable to work since that time.
[1]Sundance Girl is referred to as “the mare”.

She now sues her employer, Three Chimneys Farm Pty Ltd, which operated the stud, essentially for its failure to provide adequate safety measures for its employees when engaged in the potentially hazardous task of removing the afterbirth from a mare who had just foaled.

Mrs Lindsay-Field carried out this task by herself, with the mare tied up to a fencing rail. She makes the following allegations relevant to her claim in both negligence and breach of statutory duty:

(a)That she should have been told that the mare had a proclivity to kick or, to use thoroughbred parlance, was “funny behind”. This would have resulted in the mare being placed in a crush so the afterbirth could be removed.
(b)That she should have been assisted in carrying out her work after the foaling by another employee; alternatively, that she should have been instructed to place the mare in a crush so that the removal of the afterbirth could have been accomplished without risk of injury; alternatively that she should have been provided with a helmet.
(c)That if no assistance or no crush was provided, then she should have been given precise instructions as to the safest manner in which to remove the afterbirth.

Three Chimneys denies negligence and contends that, consistent with industry practice, it was reasonable for Mrs Lindsay-Field to carry out her post-foaling tasks without assistance or the use of a crush. It also says that its employees had no knowledge of the mare being “funny behind” prior to Mrs Lindsay-Field being kicked.

Finally, on the question of damages, there was no issue that Mrs Lindsay-Field had suffered a significant injury; nor was there an issue that she was unable to return to work – rather the contest focused on what Mrs Lindsay-Field would have been likely to earn but for her injuries.

The trial

There are some aspects of the trial that need to be commented upon.

The trial commenced before a jury of six, but on 30 August, the jury was discharged as Mrs Lindsay-Field’s solicitors had failed to pay the jury fees and s 24 of the Juries Act mandated the (unfortunate) discharge of the jury. As required by this Act, the trial proceeded as a cause.

Mrs Lindsay-Field gave evidence, as did her two daughters, Sarah and Sophie, and her former husband Timothy Lindsay-Field. Viva voce evidence was adduced from a General Practitioner, Dr Peterson, and medico-legal experts, Drs Kaplan and Epstein (both psychiatrists), Mr Klug, (neurosurgeon) and Mr Behan (plastic surgeon). A number of medical reports were also tendered.

Two other expert witnesses were called by Mrs Lindsay-Field: Mr Andrew McLean, an expert in equine behaviour, and Mr Hugh Sarjeant, an Actuary. Mr Sarjeant’s evidence was partially completed when the jury was discharged and by agreement his report was tendered.

Three Chimneys called its Stud Manager Mr Richard Kerry and Mr Jarrod Byers, Mr Kerry’s assistant, at the time of the accident. It also called Mrs Janine Sweiboda, who has extensive experience in the thoroughbred industry, and had handled the mare both before and after Mrs Lindsay-Field’s accident.

I had, in the course of the trial, ruled that neither Mr Kerry nor Mrs Sweiboda would be permitted to give expert evidence by reason of the failure of Three Chimneys to comply with the provisions of Order 44 of the Supreme Court Rules. The two documents that were filed shortly prior to trial not only breached the Order in terms of filing date, but, more importantly, the documents appeared to be drafted on the basis that Order 44, in its pre-2003 incarnation, applied. There was total non-compliance with Order 44 in its current form.

There is one other matter that I should mention. This case, as I hope has become apparent, involved the handling of a mare with a newborn foal at foot. I have, over many years been involved with the management, training and handling of thoroughbred horses, including mares and foals (with marginal success and at significant expense). During the course of the trial, from time to time I asked questions based upon my own experience. I am, nevertheless, well aware of my obligation to act solely upon the evidence as adduced at the trial, subject to the provisions of s 144 of the Evidence Act dealing with matters of common knowledge.

The issues - Liability

Much of the evidence in the case on liability was non-controversial, and in particular there seemed to be common ground in relation to the following matters:

(a)That it was desirable, if possible, to have a mare foal alone in a designated foaling paddock.
(b)That no matter what the disposition of the mare, there is always a risk of a mare behaving in an untoward way after foaling.
(c)That risk may well involve the mare lashing out behind and thereby creating a risk of serious injury to anyone who happens to be in the line of fire.

The issues that were contentious were as follows:

(a)What was said between Mr Kerry and Mrs Lindsay-Field and her daughter Sarah a week or so after the accident? In particular, did Mr Kerry, in the course of that discussion, say words to the effect that “we should have warned you that the mare was ‘funny behind’ or ‘dangerous behind’”.
(b)What was standard industry practice in relation to the foaling down of mares, and particularly the provision of an extra person to assist in dealing with the mare and foal after birth? If the practice was not to have an assistant, then what effect does that have on gauging whether Three Chimney’s response to the risk of injury was reasonable?
(c)Was it necessary for Three Chimneys to give instructions to Mrs Lindsay-Field as to how to deal with removal of the afterbirth if she had to carry out this task alone?
(d)Were the occupational health and safety (manual handling) regulations engaged in a situation where there was no real risk to health posed by the action of physically removing the afterbirth, but rather the risk was that posed by the actions of the mare?

Mrs Lindsay-Field’s background

Mrs Lindsay-Field was born on 9 July 1944 and has just turned 66.[2] She was educated to Year 12 and initially worked as a secretary.
[2]T 41.

She married in December 1969 and originally lived at a property near Wagga. In 1980 she and her husband purchased a property known as “Tarcutta House” at Tarcutta and built up a thoroughbred agistment business.[3]
[3]T 43.

In 1996, and as a result of a disastrous business venture, the couple’s finances were “annihilated”,[4] and the business and the marriage disintegrated. Subsequently that year, Mrs Lindsay-Field and her two teenage daughters moved to Victoria to join her mother who was living at Nagambie at a property known as “Helvetia”.
[4]T 44.

Between 1996 and 2002, Mrs Lindsay-Field renovated, with the help of her daughters, the farmhouse at Helvetia and started a home olive business, as well as agisting cattle.[5] The financial strains were significant as the two children had been educated at private schools.
[5]T 45.

In 2002, Mrs Lindsay-Field felt that she “needed a decent job”.[6] At that time she was living at Helvetia with her youngest daughter, Sophie. Sarah, her elder daughter, was living in Avenel.
[6]T 47.

Circumstances surrounding the injury

Mrs Lindsay-Field commenced working at Newlands in early August 2002,[7] having obtained the job through her daughter, Sarah. She worked five or six days a week and was paid $13.00 an hour, working from 8.00pm to 8.00am.[8] Mr Richard Kerry was the Stud Manager to whom she was responsible. Mrs Lindsay-Field would commence work in the evening in the office and would speak to Mr Kerry and then go on a circuit of the property, checking the mares. She would carry a bucket and a torch.[9] The paddocks were floodlit – she had a foaling bucket and a two-way radio and she could call Mr Kerry at any time if she needed help.[10]
[7]T 48.
[8]T 48.
[9]T 50.
[10]T 107.

On her account, she was not given any instructions in relation to the work duties. She had never seen the document headed “Hospital procedure”[11] which Mr Kerry said had been provided to her.
[11]T 108.

The mare did not have any display in the form of a plastic collar indicating any problems behind, nor was there any written instruction on the board in the office to indicate that she was likely to kick.[12]
[12]T 76.

The broodmares were kept in a number of paddocks, but the mare, who was close to foaling, had been moved into a smaller paddock which had about eight other mares in it (all due to foal within days).[13]
[13]T 51.

The standard practice was that if a mare was perceived as being close to foaling, she was to be removed from that smaller paddock into a foaling yard, or foaling pen.[14]
[14]T 52.

On the evening of 28 September 2002, Mrs Lindsay-Field saw the mare lying down and then watched her as she foaled easily.[15] The foaling occurred very rapidly and she did not have time to move the mare into the foaling yard which would have been the usual practice.
[15]T 56.

Mrs Lindsay-Field agreed that she could get in touch with Mr Kerry if it was necessary by either two-way radio or mobile.[16] She also agreed there was no need to ring Mr Kerry as the foal was healthy and was up and she needed only to move her into the foaling yard which was very close across a laneway.[17]
[16]T 102.
[17]T 115.

Once the mare had foaled, Mrs Lindsay-Field’s plan was to stand the foal up, take her to the foaling yard, give her a hot feed, test the colostrum, make sure the foal was suckling and then tie up the afterbirth.[18]
[18]T 52.

The afterbirth is a generic description of the remnants remaining within or attached to a mare’s uterus and vulva after the foal has been delivered. It includes the amniotic sac which is usually attached to the umbilical cord, parts of the placenta and the allantoic sac. The usual process is to tie the amniotic sac back onto the umbilical cord and use gravity to help the mare to expel the rest of the allantoic sac;[19] in other words, to assist the natural expulsion of the remnants of the placenta.[20] Once the amniotic sac is tied back onto the cord (either using tissues or a piece of bailing twine), it hangs like a ball and maintains weight on the allantoic sac which usually will, with the balance of the placenta, be expelled.[21]
[19]T 404.
[20]T 54, T 404.
[21]T 405.

After the mare foaled, Mrs Lindsay-Field walked the mare and the foal over to the foaling yard, made up a mash and tied the mare up to a rail using a piece of bailing twine. It was then her intention to tie up the afterbirth, which she had done many times in the past. She said it was necessary to go down the nearside (left side) of the mare to reach her rump. She described the accident as follows:-

so I think I would have had the little thing of colostrum bile tester in my pocket. I think I would have had that and then I remember going down the left hand side of her and telling her, well, no, she’d had a beautiful foal and going down and heading towards tying up the afterbirth. And that’s quite – I don’t remember anything.[22]

She could not say where exactly she was standing behind the mare when she was kicked.[23] She just remembered flying through the air.

[22]T 57.

[23]T 106.

The only witness to the injury is Mrs Lindsay-Field herself. Mr Kerry and his assistant, Mr Byers, both attended the scene of the accident shortly afterwards, having been summoned by Mrs Lindsay-Field on the two-way radio.

Mr Kerry’s house was situated only 30 metres from the foaling yard,[24] and Mr Byers’ home about 600 metres away.[25] When they arrived, both Mr Kerry and Mr Byers saw the mare and the foal together loose in the yard. Mrs Lindsay-Field was obviously injured and she was attended to whilst the ambulance was called.[26]
[24]T 401.
[25]T 424.
[26]T 404, T 424.

Subsequently, Mr Kerry, with Mr Byers, went to the paddock where the mare had foaled and retrieved the amniotic sac which was lying on the ground.[27] They then caught the mare, and with Mr Byers holding the mare using a lead rope attached to the headstall, Mr Kerry tied the amniotic sac back onto the umbilical cord which had dropped down from the vulva.[28] This was carried out without incident.
[27]T 426.
[28]T 402, T 426.

This description of the events was not the subject any controversy at the trial, and I make the following findings relevant to the question of liability:

(a)That Mrs Lindsay-Field was kicked by the mare while she was in the process of endeavouring to tie up the afterbirth.
(b)That at the time she was kicked, she was in close proximity to the hindquarters of the mare, having walked down the nearside.
(c)That she performed the task unaided and with no instructions as to how to carry it out.
(d)That the exact movements of the mare immediately prior to Mrs Lindsay-Field being injured are not known, however it is likely that they were quick and unexpected.
(e)That after the injury Mr Kerry and Mr Byers, together, attached the amniotic sac to the umbilical cord.

Was Three Chimneys in breach of its duty to Mrs Lindsay-Field?
Principles – generally

The duty owed by Three Chimneys to Mrs Lindsay-Field was described by the High Court in Czatyrko v Edith Cowan University[29] as follows:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. 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 [citations omitted].

[29](2005) 214 ALR 349, [12].

It was recently stated by the High Court in Leighton Contractors v Fox[30] in the following terms:

An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee.

[30](2009) 258 ALR 673 [21].

In determining whether there has been a breach of duty, a court applies the test laid down in Wyong Shire Council v Shirt[31] by Mason J as applicable in an industrial setting:

A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone,[32] may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man'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 man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

Did Mr Kerry know that the mare was “funny behind” or “dangerous”?

[31](1980) 146 CLR 40, 47-48 (Shirt).

[32][1951] AC 850.

A significant part of Mrs Lindsay-Field’s case turns upon the proposition that the mare was known to Three Chimneys to be “funny behind” or “dangerous behind”. Therefore, it is contended that Mrs Lindsay-Field should have been warned of such a propensity and instructed not to handle the mare alone and/or to effect the removal of the afterbirth in a crush.

The only evidence that an employee of Three Chimneys had such knowledge is to be inferred from a conversation Mrs Lindsay-Field says that she had with Mr Kerry about a week after the incident at Newlands.

On that occasion, Mrs Lindsay-Field went with her daughter Sarah to pick up her pay. She was sitting in the passenger seat of the car parked in the driveway[33] when Mr Kerry approached and, on her account, said:

something to the effect ‘Margie, I’m very sorry this happened. It shouldn’t have. We should have warned you this mare was dangerous behind.’[34]

[33]T 75.

[34]T 74-75.

Mrs Lindsay-Field said that if she had been told that the mare was dangerous behind, she would not have gone near her hindquarters until somebody else was there, or alternatively she would have carried out the procedure in a crush.[35]
[35]T 75.

In cross-examination, she agreed that she had sworn on a previous occasion to a different version of the conversation, in which she asserted Mr Kerry said, “We should have had her in a crush. I wish we’d told you.”[36]
[36]T 98.

Sarah described Mr Kerry’s words in the following terms:

And just more of a general discussion around the incident and he said to me ‘Look – which I can recall very vividly – we should have told you she was a bit funny behind’ and I was taken aback and I didn’t question him on that.[37]

She understood that reference to mean that someone working with the mare needed to watch out or be careful.[38] In cross-examination, she had no doubt that the words used were not “a bit dangerous behind”.[39]

[37]T 245.

[38]T 246.

[39]T 255.

Mr Kerry gave evidence that the mare had been on the property for a number of months, and that she had never shown any proclivity to lash out or be regarded as dangerous or a bit funny behind.[40] He readily acknowledged that he had a conversation with the Lindsay-Fields, but to the following effect:

And what conversation was there? – Basically just asked Maggie how she was and, and you know what the outcome was at the hospital
Yes? – and I said to her ‘I’m sorry that you’ve been injured’
Yes? – ‘it shouldn’t happen to anyone and I then I told her that I’d warned the other staff just to be careful of the mare’

He denied ever saying to the Lindsay-Fields that the mare was dangerous or funny behind.[41]

[40]T 416.

[41]T 414-T 416, T 406.

Mr Kerry’s evidence as to the mare’s disposition before the injury was supported by two other witnesses. Mr Byers, the assistant, had not noticed any danger or problems with the mare being funny behind.[42] More importantly, Mrs Sweiboda had been involved in the purchase of the mare when she had finished her racing career. She had inspected the mare at the sale ring and effectively acted as the agent of Mrs Richmond, the mare’s owner in her subsequent breeding management. She also had no knowledge of the mare having any proclivity to lash out prior to hearing about Mrs Lindsay-Field’s injury.[43] I accept the evidence of each of these witnesses on this issue.
[42]T 424.
[43]T 444-T 445.

Mr Lewis, senior counsel for Three Chimneys, accepted that if it was established that Mr Kerry knew of the proclivity of the mare to kick or be “funny behind” then it was “game, set and match” on breach of duty – such knowledge should have triggered either specific warnings to Mrs Lindsay-Field or the provision of assistance or the use of a crush.

However, I am not satisfied that it was known to Mr Kerry that the mare was dangerous or funny behind. I reach this conclusion for the following reasons.

First, I accept that each of the witnesses to the conversation (the Lindsay-Fields and Mr Kerry) gave evidence honestly and to the best of their recollection. Each, I think, was doing their best to recall the details of a conversation which occurred eight years earlier but, as counsel for Three Chimneys noted, the differing versions reflect the problems of fading memories and inconsistent recollections of one conversation amongst a myriad of others.

Second, there are inconsistencies in Mrs Lindsay-Field’s evidence as to what was said. She has sworn two different versions on separate occasions. The underlying tenor might be the same, but the problem in terms of recollection of precise words is reflected by those versions.

Third, there is a difference, of some significance, as between Sarah’s recollection and that of her mother as to the exact words used.

Fourth, and I think this the most significant point, Mr Kerry could only have made the statement attributed to him if he was of the opinion that the mare had shown a disposition to be dangerous or funny behind. His own evidence, corroborated by that of Mr Byers and Mrs Sweiboda, makes it unlikely that he had such an opinion and therefore highly unlikely that he made such a remark.

Mrs Lindsay-Field carries the burden of proof on this issue and I am not satisfied:

(a)that the conversation as set out by Mrs Lindsay-Field or Sarah took place in the terms they each described; or
(b)that it was known to Three Chimneys that the mare had a proclivity to kick.

I turn now to the other allegations of negligence which revolve around the system of work, assuming that the mare was of normal disposition.

Should Three Chimneys have had two people carrying out the post-foaling procedure?

The submission made on behalf of Mrs Lindsay-Field took on a traditional Shirt analysis.

First, that a reasonable employer, in Three Chimneys’ position, would have foreseen that requiring Mrs Lindsay-Field to work behind a mare who had just foaled involved a risk of injury to her in the sense that such a risk was not far fetched or fanciful.

Both Mr Byers and Mr Kerry acknowledged that working behind the mare meant that there was always a risk that a person could be kicked.[44] Mr McLean, the expert witness, also thought that the risk was increased where a mare had just foaled and had a high level of defence.[45]
[44]T 407-408.
[45]T 338.

Horses, as Mr Kerry acknowledged, are unpredictable,[46] and the risk of a person walking behind being kicked and suffering a significant injury is ever-present.[47]
[46]T 407.
[47]T 409-410.

In my view, a reasonable employer in the position of Three Chimneys, would have been aware that there was a real risk of a potentially significant injury to an employee engaged in tying up the afterbirth. The evidence of Mr Klug confirms what an employer would undoubtedly have known: that there was real potential for an application of considerable force,[48] sufficient to result in a fracture of the skull, as a kick from a horse involves a “lot of force”.[49]
[48]T 207.
[49]T 218.

Next, and this is the real issue here, the court must determine what a reasonable employer would have done by way of response to that risk. There are a variety of considerations relevant to this assessment which can be identified as follows:

(a)The magnitude of the risk of injury posed by the particular activity.
(b)The potential consequences of any injury in the event that the risk materialises.

(c) The likelihood of the risk materialising.
(d)Whether the measures to alleviate the risk are practical.
(e)What level of expense is involved in the measures required to alleviate the risk.

I should now mention three other matters important to this inquiry.

First, that in determining what is a reasonable response to a risk one must not look backwards. The fact that a foreseeable risk has eventuated, does not bespeak lack of adequate response. The reasonable response must be evaluated in the context of the perceived risk as it existed immediately prior to the subject injury.[50]
[50]Rosenberg v Percival (2001) 205 CLR 434 [88]; Vairy v Wyong Shire Council (2005) 223 CLR 422, [60]-[61], [124], [126]-[129]; Wicks v State Rail Authority (2010) 267 ALR 23 [33]; Hookey v Paterno (2009) 22 VR 362 [109].

Second, it may be that notwithstanding the risk and the availability of remedial measures that an employer acts reasonably by taking no steps.[51] This is because underpinning the exercise is a determination of what is reasonable in all the circumstances, not just the ticking of a number of boxes resulting in conclusion that the employer has acted reasonably or unreasonably[52].
[51]New South Wales v Fahey (2007) 232 C.L.R. 486; Neindorf v Junkovic (2003) 222 ALR 631 [14], [7].
[52]Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [106] – [113]; New South Wales v Fahey (2007) 232 CLR 486, [56] – [58].

Third, the question of the relevance of current industry practice may be of significance in determining whether a response is reasonable or otherwise. Counsel for Three Chimneys placed considerable emphasis on evidence from Mr Kerry and Mrs Sweiboda that industry practice was to remove the afterbirth without a second person holding the broodmare. Counsel for Mrs Lindsay-Field did not contend that industry practice was not probative in determining whether the response of Three Chimneys was reasonable. Rather, he argued that such evidence could not be determinative of the appropriateness of the response.

There are several decisions of the House of Lords during the 1950s which provide support for the submission made by Three Chimneys.[53] For instance, in Morris v West Hartlepool Steam Navigation,[54] Lord Cohen said:

When the Court finds a clearly established practice ‘in like circumstances’ the practice weighs heavily in the scale on the side of the defendant and the burden of establishing negligence, which the plaintiff has to discharge, is a heavy one.[55]

and Lord Reid:
I would agree that, if the practice had been generally followed for a long time in similar circumstances and there has been no mishap, a reasonable and prudent man might well be influenced by that, and it might be difficult to say that the practice was so obviously wrong that to rely on it was folly.[56]

[53]Paris v Stepney Borough Council (1951) AC 367, Morris v West Hartlepool Steam Navigation Co Ltd (1956) AC 552 and Cavanagh v Ulster Weaving Co Ltd [1960] AC 145.

[54](1956) AC 552.

[55]Ibid, 579.

[56]Ibid, 574.

On the other hand, courts in the United Kingdom have recognised that industry practice is of itself not decisive. For instance, the House of Lords in Bank of Montreal v Dominion Greshan Guarantee Co[57]:

Neglect of duty does not cease by repetition to be neglect of duty.[58]

[57][1930] AC 659.

[58]Ibid, 666.

In Australia, courts have been reluctant to permit industry or professional practice to be determinative of the appropriate standard of care to be adopted in a case brought in negligence. This is best illustrated in the context of claims involving allegations of medical negligence. For instance, in Rogers v Whitaker,[59] the plurality of the High Court said:

In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.[60]

Gaudron J also said:-
The matters to which reference has been made indicate that the evidence of medical practitioners is of very considerable significance in cases where negligence is alleged in diagnosis or treatment. However, even in cases of that kind, the nature of particular risks and their foreseeability are not matters exclusively within the province of medical knowledge or expertise. Indeed, and notwithstanding that these questions arise in a medical context, they are often matters of simple commonsense.[61]

[59][1992] 175 CLR 479.

[60]Ibid, 487.

[61]Ibid, 493.

Subsequently, in Breen v Williams,[62] Gaudron and McHugh JJ stated that:

Rogers took away from the medical profession in this country the right to determine, in proceedings for negligence, what amounts to acceptable medical standards.

[62](1996) 186 CLR 71, 114.

More recently in the Western Australian decision of Hammond v Heath,[63] Martin CJ said:

While it is undoubtedly correct that the ultimate delineation of the duties of care imposed upon a medical practitioner is determined by the court, and not by standards of practice adopted within the medical profession, the decision of the court in a case such as this must be based on the evidence of risk, the consequences if the risk eventuates and the risks associated with any remedial procedure. Further, while evidence of practices adopted within the medical profession will not necessarily be determinative, it is of course, relevant.

[63][2010] WASCA 6 [21]. See also Shepperd v Swan [2004] WASCA 215.

In this state, in Hookey v Paterno,[64] the Victorian Court of Appeal said:

In reasoning to her conclusion that the recommendation of the plan was negligent, the judge observed that the question of whether an appropriate standard of care had been met does not depend solely on whether the treatment offered or recommended was in accordance with what a respectable body of other professional opinion says was appropriate to offer. It was necessary too, she said, to weigh the nature of the treatment, including its intrusiveness and its risk factors, against the nature and severity of the presenting problems which the treatment was aimed to resolve, and its prospects of doing so.
With respect we agree. As the High Court said in Rogers v Whitaker, in Australia the standard of care to be observed by a skilled professional is that of the ordinary skilled person exercising and professing to have that special skill. But that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession; even though, in the area of diagnosis and treatment, it will often have an “influential or decisive role to play”. While the evidence of acceptable professional practice is a useful guide, it is for the court to adjudicate on what is the appropriate standard of care, after giving weight to the paramount consideration that a person is entitled to make his or her own decisions about his or her life.
At the same time however, in a case like this where something unforeseen has gone wrong, it is important to avoid the temptation of looking back from the patient’s present condition and reasoning that, because of what has occurred, there must have been a significant risk of its occurrence that should have been avoided. For so to reason is neither logical nor fair.[65]

[64](2009) 22 VR 362.

[65]Ibid, [107]-[109].

In the industrial context, the High Court has also made the position clear. In Bankstown Foundry Pty Ltd v Braistina:[66]

On the other hand, being a question of fact, it is undoubtedly true, as McHugh JA said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer.[67]

[66](1986) 65 ALR 1.

[67]Ibid, 6-7.

Counsel for Mrs Lindsay-Field, rightly I think, submitted that any task involving working behind a mare who had just foaled (whether she was known to be funny behind or otherwise) was a dangerous activity, as there was the ever present risk that the mare might kick, with resultant serious injury, or in some cases, death, depending upon where the victim was struck. This risk, he said, meant that industry practice could never be the sole determinant. He referred to a decision of the English Court of Appeal in Christmas General Cleaning Contractors Ltd and Caledonian Club Trust Ltd[68] in which Lord Denning said as follows:

The question then is, did the contractors take reasonable care to protect the plaintiff? The judge has found that they did not, and I find myself in full agreement with him. Window cleaning is a dangerous occupation, and the plaintiff fell owing to one of the dangers usual to it. The employers should have taken proper steps to protect him from the dangers. They should have laid out the work more carefully. One way would have been to do the cleaning from a ladder instead of from a sill. Another way would have been to ask the householder to allow the firm to insert hooks into the brickwork so as to attach a safety belt. It is said by the employers that these suggestions are not practicable; and that it is the usual thing for the men to clean windows by standing on the sill. That answer does not satisfy me. If employers employ men on this dangerous work for their own profit, they must take proper steps to protect them, even if they are expensive. If they cannot afford to provide adequate safeguards, then they should not ask them to do it all. It is not worth the risk.
…
At the hearing of the appeal it was suggested that the accident might have been avoided if the man had put in a block to prevent the bottom sash coming right down as it did. This was, in effect, a suggestion of contributory negligence. This was negatived by the judge, and I agree with him. You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way which the employers expected him to do it, and if they had taken proper safeguards, the accident would not have happened.[69]

Interestingly, on the appeal to the House of Lords, the employer argued that it was not negligent by reason of its conformity to an industry standard. The appeal was dismissed. Lord Reid accepted that evidence of such conformity in the carrying out of a particular form of work was a distinct impediment to a plaintiff demonstrating that the system of work was unreasonable; however, his Lordship concluded that where the work involved an obvious danger which the employer could have guarded against, then it was in breach of its duty of care.[70]

[68][1951] 2 KB 180, affirmed by the House of Lords: [1953] AC 180 – General Cleaning Contractors Ltd v Christmas.

[69]Ibid.

[70]General Cleaning Contractors Ltd v Christmas [1953] AC 180, 192, 194.

Lord Denning’s approach was not novel. The relevance of the degree and severity of risk engendered by the particular work activity had been referred to by Lord McMillan in Glasgow Corporation v Muir[71] in wartime Britain:

The degree of care for the safety of others which the law requires human beings to observe in the conduct of their affairs varies according to the circumstances. There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved. Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in the ordinary routine of daily life.

[71][1943] AC 448, 456.

In Australia, this principle was recognised by the High Court in Swinton v China Mutual Steam Navigation Co Ltd[72]:

The measure of care increases in proportion with the danger involved in the custody or control of an agency potentially harmful, that is to say, the danger should the safeguards employed, if any, prove insufficient or unsuccessful.

and later in Thompson v Bankstown Corporation[73]:
It has been emphasized repeatedly in recent years that when a duty of care exists, the degree of care which is reasonable varies directly with the risk involved and the risk involved includes both the risk of an accident happening and the risk of serious injury if an accident should occur. So in the present case two factors combined to affect the magnitude of the risk and to impose upon the respondent a correspondingly heavy duty of care. One was the extreme gravity of the likely consequences of any shock a person might receive from the respondent’s electricity; and the other was the likelihood that the highway in the vicinity of the pole would be frequented by all manner of persons, thoughtless youths as well as circumspect adults; inquisitive, meddlesome and adventurous boys as well as less enterprising persons. It may be said, almost in the words of Lord Reid in Bolton v Stone, that the jury was entitled to consider whether the risk of damage to a member of the public in consequence of the state of the pole and of the wire running down it, at the time the appellant came on the scene, was so small that a reasonable man in the position of the respondent, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to avoid the danger; and (to apply what his Lordship went on to say), in considering that matter it would be right for the jury to take into account how substantial or how remote was the chance that a person might come into contact with the wire and receive a shock from it, as well as how serious the consequences were likely to be if a person should meet with that misfortune. (emphasis added and citations omitted)

[72](1951) 83 CLR 553, 556-557.

[73](1952) 87 CLR 619, 645-646.

Finally, there is what was said by Mason J in Kondis v State Transport Authority[74]:

It has been accepted that the content of the ordinary common law duty of care is a duty to exercise reasonable care (and skill) or to take reasonable steps to avoid risk of harm to a person to whom the duty is owed. The degree or standard of care required varies with the risk involved. Those who engage in inherently dangerous operations must take precautions not required of persons engaged in routine activities (Swinton v. China Mutual Steam Navigation Co. Ltd). This involves no departure from the standard of reasonable care for it predicates that the reasonable man will take more stringent precautions to avoid the risk of injury arising from dangerous operations.[75] (emphasis added and citations omitted)

[74](1984) 154 CLR 672.

[75]Ibid, 679.

In summary, the position in this country in relation to accidents involving an alleged breach of an employer’s duty of care and the relevance of industry practice where there is a significant risk of injury in the carrying out of the particular task is as follows:

(a)The primary rule is that the evidence of industry practice is not determinative – the test remains: what is a reasonable response to the identified risk in all the circumstances.
(b)However, industry practice is relevant in assessing the adequacy of the response of the employer to the perceived risk. In this context it assists in determining whether the employer, being aware of the risk and being aware of industry practice, acted reasonably in not responding to the risk.
(c)In determining the adequacy of the employer’s response, it is necessary to pay particular regard to the potential danger posed by the work activity. A risk of minor injury may mean industry practice is an acceptable response; however, the greater the risk of significant injury then the greater the need to consider, closely, whether industry practice represents a reasonable response to that risk.

Mrs Lindsay-Field and her former husband each gave evidence that when operating their own agistment and breeding property at Tarcutta, foaling down was always carried out with two persons in attendance. Mrs Lindsay-Field said that this was “in case something goes wrong.”[76] She was of the view that if someone was holding the broodmare it was much easier to work on her as this arrangement was safer.[77] In cross-examination, she said that when there were two persons present it was not necessary to tie the broodmare up as one would hold her and the other would endeavour to tie up the placenta.[78]
[76]T 58.
[77]T 58.
[78]T 105.

Mr Tim Lindsay-Field, said that in just about every case of foaling at Tarcutta, the two of them were involved, and this was particularly important as the foaling was a critical part of the operation and financially important to a broodmare’s owner.[79] The practice at Tarcutta was for one of them to hold the head whilst the other would attend to the afterbirth. The advantage of having a person hold the head of the broodmare he described as follows:

To steady the mare, basically, and stop the mare swinging around or walking away from you or the alternative to that if you do not have somebody holding the head, you would be holding the head yourself with a lead rein, but standing to the back of the mare. So that basically you have got no control at all.[80]

[79]T 326.

[80]T 327.

Mr Andrew McLean, a horse behaviour expert, supported the evidence of the Lindsay-Fields as to the necessity to have two people involved in the whole foaling down process, and particularly attending to a broodmare after foaling, including the removal of the afterbirth. Although I regarded some of Mr McLean’s evidence as counsel of perfection rather than reasonableness, his evidence as to the need to have two people working with the mare after foaling was of considerable value. In his report of 18 April 2006, he said as follows:

However, according to Mrs Lindsay-Field, the injury occurred after this event, that is after Sundance Girl and her newborn foal were isolated. It is likely that the mare’s anxiety levels would have escalated as a result of being suddenly isolated with a foal away from the other herd members in the communal paddock…tying the placental cord is necessary so that the weight of the placenta assists it in coming away from the mare through gravity. This can be a dangerous job for a single person as they cannot control the horse’s head or mobility. Without control of the horse’s head, the horse is free to suddenly swing sideways and kick the person tying the placenta. It may also be more easily startled by someone at its rear out of its visual field, especially in the dark. Controlling the horse’s head greatly reduces the likelihood of such dangers. This suggests that two people as a minimum are required to assist foaling for safety considerations.

In viva voce evidence, he amplified this proposition stating that whenever someone is working behind a horse (such as a farrier or a barrier attendant on race day):

it is just general knowledge that you always have the handler standing on the same side as the person with the leg, and that really lessens the danger of being kicked, because what you do, if you are a capable handler, is you turn the horse’s head slightly so the horse can see the person on that side, whether they are standing beside the horse’s rear tying up the afterbirth or whether they are holding the leg in the air in order to trim its feet. It’s the same thing. When you turn your head in the same direction, on the same side as where the person is holding the back leg or dealing with the hindquarters, it makes the horse much safer. Without control of the head, you could be out of sight or just the sudden touch of the hindquarters could lead to kicking and, indeed, even the afterbirth swinging and the horse may not have learned to kick, or it may have habituated to human touch on its rump, but the afterbirth swinging on its leg, which can happen, can cause a sudden kick. So it’s really the unpredictable nature of horses and what they do is that the more stress they have the more they default to those basic instinctive patterns of survival.[81]

He also explained that the presence of a second person holding the horse provides three particular benefits. It reduces the level of stress by calming the horse, it enables the horse to see what is going on behind and it also, by turning the horse’s head, lessens its ability of that hind leg to kick the person working behind. He concluded on this aspect by stating:
It’s a much safer operation with two people.[82]

[81]T 341.

[82]T 342.

Three Chimneys’ response to this evidence was, as I have said, to rely upon an assertion that the prevalent industry practice in 2002 (indeed at the present time) was to foal down a mare and carry out any subsequent work upon the mare, including the removal of the afterbirth, with only one person present and without assistance. Mr McLean agreed that it was an extremely common practice at a great number of studs for the birthing procedure to be carried out by one attendant equipped with a two-way radio, enabling that attendant to call for assistance[83] - and that indeed was the system in operation at Newlands.
[83]T 354-355.

This evidence as to industry practice was fortified by the evidence of Mr Kerry, the former manager at Newlands, who has had considerable experience in the breeding industry and now manages his own breeding concern. The practice, as he described it, was to have one foaling attendant attend to the whole foaling procedure, including the tying up of the afterbirth.[84]
[84]T 397.

Mr Byers, as I mentioned previously, was the assistant manager at Newlands in 2002. He had several years experience in the thoroughbred breeding industry and confirmed that it was standard practice, either at large or small studs, for the foaling procedure to be carried out by one attendant.[85]
[85]T 424.

Mrs Sweiboda manages a small stud at Mernda and has been involved with thoroughbred breeding for many years. She said that where there is a normal, uncomplicated birth, the tying of the afterbirth would be carried out by one attendant with assistance available on call.[86]
[86]T 442.

Each of the witnesses, Mr Kerry, Mr Byers and Mrs Sweiboda, described a method of removing the afterbirth somewhat different to that undertaken by Mrs Lindsay-Field. None suggested that a broodmare be tied up, indeed Mrs Sweiboda thought that was positively dangerous. Each thought that the operation should be carried out by one person holding the lead rope, probably to its fullest extent, and walking down the side of the broodmare with the lead rope in one hand and using the other hand or, if possible, both hands (one which would still be holding the lead rope) to tie up the afterbirth.

This, if I may say so, demonstrates the difficulty with the industry practice. The handler is placed in a somewhat precarious position stretching to attend to the afterbirth with one hand endeavouring to hold the horse by use of the lead rope and the other attempting to remove the afterbirth. Having said that, each of the witnesses, effectively unchallenged, said that this was common practice in the breeding industry.

There is one other aspect of the evidence of Mr Kerry and Mr Byers which needs to be commented upon. Mr Kerry accepted that a mare may be defensive towards the foal after foaling and then gave the following answers in cross-examination:

So the foaling attendant going to the rear of the horse is putting herself in a situation that is quite dangerous?---Yes, they do put themselves at risk
And the danger that they run is potentially being kicked in the head with lethal or brain damaging force?---Depends on where you position yourself whether you are kicked in the head though.
Yes, but a horse can move its hindquarters in an instant---Yes.
Wherever you are, you could cop a kick. If you are in the vicinity, you can cop a kick in a moment?---Definitely.[87]

[87]T 407-408.

Mr Kerry was of the view that one attendant holding the mare’s head could exercise a sufficient degree of control over the movements of the mare. However, he also gave this evidence:

And once there is a second person there to steady the horse, the risk of injury is markedly diminished?---Look, the risk is definitely diminished yes. Yes. If there is two people certainly the risk is diminished, yes. It does not mean the mare still cannot kick, though.[88]

Mr Byers accepted that generally speaking it was safer to have two people working with a broodmare when removing the afterbirth.[89] Indeed, by force of the circumstances on the night of Mrs Lindsay-Field’s injury, this is what happened. Mr Byers held the mare on a short lead with her head turned slightly so that she would be less inclined to kick. Mr Kerry tied up the afterbirth, including attaching the amniotic sac which had been retrieved from the other paddock.[90]

[88]T 409.

[89]T 427.

[90]T 426.

I accept that the preponderance of evidence supports the proposition that in the breeding industry the foaling down process is usually attended to, if there is no crisis, by one attendant who would remove the afterbirth whilst holding the broodmare’s head slightly turned to the side with a lead rope. To some extent, it is quite remarkable (if it is correct) that someone else has not suffered injury carrying out this hazardous task. And that is where the problem with the industry practice lies: the risk of serious or fatal injury is ever present when working behind a broodmare who had just foaled and is in a stressed situation. In my view this is a situation where industry practice must yield to a proper consideration of the safety of an employee, particularly where the risk of injury is real and serious, as was acknowledged by Mr Kerry.

It was not suggested by Mr Kerry or any other witness that it was impractical to call by two-way radio a second person to assist in carrying out work on the mare after she had foaled (which would not be restricted to simply removing the afterbirth but would also include assisting in the collection of the colostrum, arranging a feed and settling down the mare and the foal). Indeed, Mr Kerry’s house was only 30 metres from where the accident occurred and Mr Byers’ home was also relatively close by. It would have been a relatively simple process for the system to accommodate a call by the night foaling attendant to the manager or assistant manager for assistance. True it is that it may interrupt a night’s sleep, but no evidence was led from Mr Kerry or Mr Byers that this would be of any real inconvenience.

I do not think that a reasonably practicable system would necessitate having a permanent second attendant on duty (as suggested by counsel for Mrs Lindsay-Field), particularly when two experienced horsemen were located nearby, and presumably, could between themselves organise an appropriate roster.

The evidence of Mr McLean, Mr Kerry and Mr Byers to which I have referred, satisfies me that if a second attendant had been available and holding the mare’s head, the risk of injury would have been considerably reduced.

This conclusion, I think, does not depend upon an evaluation looking back knowing the circumstances in which Mrs Lindsay-Field suffered her injury. Rather, a number of witnesses acknowledged the risk of serious injury was ever present and a reasonable employer should not only have considered ensuring another attendant was present, but also should have implemented such a system.

I am satisfied that if there was such a system in place Mrs Lindsay-Field would have called Mr Kerry or Mr Byers. The presence of one or other of them, and particularly the holding of the mare while the afterbirth was tied up, would have significantly reduced the risk of injury.

In summary, there are times when industry practice falls behind the demands of occupational health and safety – this is a classic example. Just because a task has been carried out for decades (or perhaps centuries) in a certain way does not, as the circumstances of this case demonstrate, mean that this is an adequate response to the risk of significant injury. This is particularly so when requiring an employee to deal with unpredictable livestock placed in a stressful situation with the attendant risk of a defensive reaction to any perceived threat.

In my view, the failure to have a system in place that provided for a second attendant to be on call and then available to assist once a mare had foaled constituted a breach of duty on the part of Three Chimneys and was a cause of the injuries sustained by Mrs Lindsay-Field.

The other allegations of negligence

It is not necessary for me to deal in any detail with these allegations given my findings in relation to the primary allegation. It suffices to say that there was no evidence of any persuasive nature that the mare should have been placed in a crush. This allegation seemed to be dependent on a finding that the mare had a proclivity to kick which I have discounted.

Nor do I think that there is any force in the suggestion that in 2002, foaling attendants should have been provided with a helmet of the type worn by track riders or barrier attendants. As I observed in discussion, farriers who work day in day out around the hindquarters of horses do not take such precautions and, it seems to me, that this is an unreal precaution akin to instructing persons who walk regularly on streets frequented by skateboarders to wear a helmet.[91] This allegation demonstrates, I think, what the High Court has warned against – namely taking into account what has happened in the incident rather than looking at the risks overall.[92] A horse can cause serious injury to a number of parts of the body, including the head. The solution is not the provision of a helmet, but rather to ensure, as best one can, that the horse will not kick and that, I think, would have been achieved in this situation by the provision of a second person.
[91]See the observations of McHugh J in Graham Barclay Oysters Pty Ltd v Ryan & Ors (2002) 211 CLR 540, [111] and Gleeson CJ in New South Wales v Fahey (2007) 232 CLR 486 [7].
[92]See [59] above.

Finally, it may be that it was unreasonable on the part of Three Chimneys, having not arranged assistance, to fail to provide further instructions as to how and in what circumstances the afterbirth should have been tied up. Whether this would have made any material difference is, I think, problematic. In any event, as I have said, the proper response was to provide a second person to assist in the task.

Breach of Occupational Health and Safety (Manual Handling) Regulations

Given my conclusion as to the liability of Three Chimneys in negligence, it is not strictly necessary to deal with the issue of whether the work being carried out at the time of her injury by Mrs Lindsay-Field was in breach of the Occupational Health and Safety (Manual Handling) Regulations 1999 (‘the Regulations’). However, given the reliance placed upon the regulations by Mrs Lindsay-Field, I should briefly state my conclusion and reasons in respect of this allegation.

Succinctly put, I am not of the view that the regulations have any application to the work being performed by Mrs Lindsay-Field at the time she was injured. My reasons are as follows.

For any of clauses 13, 14 or 15 (each relied upon by her) of the Regulations to be engaged it was necessary to establish that Mrs Lindsay-Field was engaged in “manual handling” as defined by the regulations. Clauses 13 and 14 apply to tasks involving hazardous manual handling and clause 15 mandates that the tasks involve manual handling.[93]
[93]See the definition of musculoskeletal disorder in clause 5. To be a musculoskeletal disorder the injury must arise in whole or in part from manual handling in the workplace.

Accordingly, Mrs Lindsay-Field must demonstrate that her work duties with the mare involving the removal of the afterbirth constituted “manual handling” within the meaning of the Regulations.

Manual handling is defined in the Regulations as meaning “any activity requiring the use of force exerted by a person to lift, push, pull, carry or otherwise move, hold or restrain any object”.[94]
[94] It was not an issue that the handling of an animal rendered the task “hazardous” within the meaning of Regulations 13 and 14.

At the time Mrs Lindsay-Field was kicked she was not restraining or applying any physical force to the mare. As best I can tell, she was endeavouring to place herself in a position near the hindquarters or the rear of the horse so that she could tie up the afterbirth. She was walking down the side of the mare, patting her as she made her way to the mare’s backside.[95] She was not engaged in any lifting, pushing or pulling at the time of injury. She was not holding the mare. Assuming that her tasks are to be looked at broadly, all that would have been done by her (had she not been injured) was to tie up whatever was left of the afterbirth if she had reached that position.
[95]T 105.

This description does not, in my view, fall within the definition of “manual handling”. Whilst Mr McLean said that some force was required in relation to the tying off of the afterbirth, I am dubious of this description given the subsequent evidence of Mr Kerry and Mr Byers as to the state of the afterbirth given that the amniotic sac had been left in the paddock. Whilst Mrs Lindsay-Field would have been required to hold the afterbirth to tie it, I am not satisfied that any true application of force was likely to be involved in this exercise; it therefore does not fall within the definition of manual handling.

In any event, I do not accept that this activity is of the type intended to be covered by the Regulations. The objective of the Regulations, I think, is directed towards activities (and, particularly repetitive actions) which require the application of force in the course of the particular activity (be it lifting, pushing, pulling or holding) and thus result in a risk of injury. It is that type of injury which the Regulations are designed to prevent. That is not the case here. The risk of injury was not occasioned by the stresses or forces involved in the tying up of the afterbirth, but rather by the position the employee had to take up in relation to the rear of the mare; it was not the handling of a particular object (i.e. the afterbirth) that generated the risk of injury. The circumstances surrounding the injury, therefore, in my view, fall outside the purview of the Regulations and its objects namely –

to reduce the number and severity of musculoskeletal disorders associated with tasks involving manual handling[96]

[96]Clause 1.

By way of contrast, an abattoir worker or a shearer involved in the actual handling of the animal (be it by pushing, restraining or holding) would clearly fall within the definition and the objectives of the Regulations if he or she sustained injury as a result of the actions of the animal.

In the result, I am not satisfied that the Regulations are engaged, and therefore conclude that there was no breach of statutory duty on the part of Three Chimneys.

Contributory negligence

The pleadings contained two separate allegations of contributory negligence – neither of which had any relevance to the manner in which Mrs Lindsay-Field sustained her injuries. No submission was made supporting a finding of contributory negligence.[97]
[97]T467.

There was no contributory negligence on the part of Mrs Lindsay-Field.

Assessment of damages
Generally

The blow to the face resulted in a comminuted fracture of the right supra-orbital rim – which is the bone below the eyebrow. It left a deep wound, the scarring of which still remains and is located above the right eyebrow.

The injury has resulted in some subtle brain damage, as diagnosed by Mr Klug, and a marked psychological reaction which is now entrenched. The supra-orbital nerve was damaged, and notwithstanding repair surgery, has continued to produce neuropathic facial and head pain of some severity.

The most profound effects of the injury are those upon Mrs Lindsay-Field’s memory, concentration and intellectual functioning. Whether the cause is organic or psychological is somewhat immaterial, as there is no suggestion that the impairments that she suffered are not related to the injury.

Treatment and investigations

After the injury, Mrs Lindsay-Field was treated at the Seymour Hospital. She was seen by Dr Peterson who, because of the risk of potential fracture, arranged for her to be transferred to the Northern Hospital[98] where the wounds of the forehead and eyelid were sutured.
[98]T 184.

A CT scan taken on 25 November 2002 demonstrated:

Localised, slightly comminuted fracture in the right frontal bone involving the frontal sinus and probably the orbital roof. No intra-cranial haemorrhage.[99]

[99]Exhibit P12.

Upon her return home, Mrs Lindsay-Field suffered from frequent infections and continued to experience pain over the right side of her face and around her right eye. She saw Dr Peterson on 17 occasions between September 2002 and July 2003.[100]
[100]T 186.

In January 2003, she was referred to Professor Taylor, a Plastic and Reconstructive Surgeon. Because of the severity of the headaches, Professor Taylor referred her to Professor Andrew Kaye, Neurosurgeon, who expressed the opinion that there was “no sinister intercranial pathology”.[101]
[101]Exhibit P8.

Professor Taylor determined that he should carry out revision surgery and operated on Mrs Lindsay-Field at the Mercy Hospital on 10 June 2003, excising the scar from the forehead, eyebrow and eyelid. He also detected that the supra-orbital nerve had been crushed with the suggestion that the nerve fibre had been transacted. He performed a secondary repair of the nerves.[102]
[102]Exhibit P8.

A CT scan taken in April 2005 (i.e. nearly two years after the surgery), noted a slight inflammatory change around the interior aspect of the right orbit, no sinus disease and no underlying focal bony abnormality.[103]
[103]Exhibit P13.

In July 2005, an MRI was carried out and revealed no abnormality of the brain or orbits.[104]
[104]Exhibit D1.

Subsequent to Professor Taylor’s surgery, Mrs Lindsay-Field has been seen regularly by general practitioners in metropolitan Melbourne and Seymour. In October 2006, Dr Freeman, a general practitioner at the Malvern Medical Centre noted:

Since the injury she has suffered severe chronic pain and loss of vision in her right eye, associated recurrent infection around her right orbit. Mrs Lindsay-Field now has visual impairment of her right eye and severe difficulty to control pain in her right head, face and around her right eye.[105]

[105]Exhibit P7.

She has continued to take large doses of Neurontin to endeavour to deal with the chronic pain in the right side of her head. At the present time there appears to be little else that can be offered to her in the form of treatment.

Sequelae and current complaints

Mrs Lindsay-Field has suffered and continues to suffer from the following disabilities:

· An obvious scar extending onto her forehead.

· Her memory, intellect and concentration have been significantly affected.

· She no longer remembers things as she used to and needs help.

· She was an avid reader beforehand and can no longer read as she used to.

· She has gone from being a practical, independent woman to one who is now dependent upon others and has suffered a significant loss of confidence.

· She has slowed down physically.

· She can no longer work with horses.

· Her social life has been adversely affected.

· She becomes frustrated because of these problems.

On the other side of the coin:

· She still interacts with her children and grandchildren.

· She can still drive a car, although not as far as she used to.

Mrs Lindsay-Field also suffered a stroke in 2007 which affected her right hand and right foot, although these effects appear to have been transient.

Medical opinion

It is not necessary to deal with the medical opinion in any great detail, as there was little divergence between the specialists in respect of diagnosis and prognosis.

A number of the medical practitioners described the injury as being severe.[106]
[106]E.g. Dr Ann Freeman, Exhibit P7, Professor Taylor, Exhibit P8.

The treating plastic and reconstructive surgeon, Professor Taylor, in a report provided shortly after the June surgery, said as follows:

This lady has sustained severe injury to her forehead with fracture of the underlying skull and involvement of the supra-orbital nerve. There is also some involvement of the levator of the right eye as some ptosis still persists. This is almost certainly due to the scar around the muscle, as it appears that the fracture extends into the root of the orbit…Secondary repair of the supra-orbital nerve has been performed which has relieved her pain. At this point in time her condition has not yet stabilised…[107]

[107]Exhibit P 8.

Professor Klug, a Consultant Neurosurgeon, saw Mrs Lindsay-Field on two occasions. He considered the supra-orbital nerve injury to be a direct consequence of the injury and thought that the disturbance to mental function was produced by a combination of organic and non-organic components, with the majority being non-organic. He did not think that there would be any great improvement in her condition, whatever the cause of her problem.[108] He did not think that there was any realistic prospect of treating her neuralgic pain by further operative intervention.[109]
[108]T 208.
[109]T 212.

Dr Maureen Molloy, a Neurospsychologist, was unable to give evidence viva voce, but her evidence was read into the transcript. She examined Mrs Lindsay-Field in 2005 and said as follows:

However, given the fracture to the frontal bone and the probable magnitude of the kinetic forces involved of the time of this impact, her injury could well be considered to be moderately severe, even though there is no evidence of brain damage…[110]. Your client is considered to have a disturbance in the domain of memory which has adversely affected her capacity to deal with information overload, and adversely affected her capacity to cope with multiple information inputs. There is evidence of slowness in mental processing and reduction in short-term memory ability. She has an impaired capacity for learning and retaining new information. These problems are accompanied by significant levels of fatigue and pain, together with slowness in mental processing. These problems act and interact to lead to a low level of functional performance. By contrast, her formal intellectual abilities remain relatively well preserved, but her capacity to use that intellect in an effective manner in daily life has been significantly compromised by the problems described above[111]

Dr Molloy felt in 2005 that there was little chance of improvement and this, to my observation of Mrs Lindsay-Field, and the reading of the subsequent medical reports, has been borne out.

[110]T 187-188.

[111]T 188-189.

Dr Leslie Sedal, consultant neurologist, provided a medico-legal report in October 2008. He also diagnosed a serious head injury, noting:

She has had a laceration across her right forehead which has severely damaged her right supra-orbital nerve, a branch of the trigeminal nerve. The nerve damage has resulted in severe pain and dysaesthesia, and can be reasonably be called a neuralgia of the nerve with a sensory loss but marked hypersensitivity of the territory of the right supra-orbital nerve….My feeling, in the absence of further information such as current neuropsychological testing or an MRI scan, is that there was probably subtle brain damage present, which has diminished her from her previously high functioning self to a lesser level, though still performing within the normal range of these bedside tests. I acknowledge that there are other factors such as sleep deprivation secondary to the pain from her supra-orbital nerve and psychological factors also contributing, but I feel there is a primary organic substrate to her memory and cognitive problems[112]

[112]Exhibit P 9.

Each of the consultant psychiatrists (Drs Epstein and Kaplan) detected symptoms of depression and anxiety as a result of the injuries she sustained.[113] Dr Epstein also thought that Mrs Lindsay-Field’s symptoms were consistent with mild post-traumatic stress disorder.[114]
[113]Dr Kaplan, T 228, Dr Epstein, 280.
[114]T 281.

I accept the evidence I have referred to of each of the doctors. I also note that the consensus of the medical practitioners was that Mrs Lindsay-Field’s symptoms should now be considered to have stabilised, whether their origin is organic or non-organic.

Pain and suffering

Section 134AB(22) of the Accident Compensation Act (“the Act”) implicitly requires a separate judgment for “pain and suffering” damages. That is, pain and suffering, and loss of enjoyment of life.[115]
[115]Section 134AB(19) of the Act.

Counsel for Three Chimneys suggested a figure of $230,000 under this head. Counsel for Mrs Lindsay-Field suggested between $300,000 to $350,000.

In my view, given the sequelae of the injury and the medical opinion I have referred to an appropriate figure is $250,000 for general damages.

Pecuniary loss damages

Section 134AB(22) of the Act also requires a separate verdict for “pecuniary loss damages” which includes loss of earnings and loss of earning capacity.[116]
[116]Section 134AB(19) of the Act.

The approach to be taken in the determination of this issue is set out by the High Court in Malec v Hutton:[117]

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place. (Citations omitted)[118]

[117](1990) 169 CLR 638.

[118]Ibid, 642.

The principles in Malec still remain good, as was demonstrated by the High Court in the recent decision of Tabet v Gett.[119] Gummow ACJ said as follows:

The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can. The treatment in Malec v J C Hutton Pty Ltd of the assessment of damages for future or potential events that allegedly would have occurred, but cannot now occur, or that allegedly might now occur, is an example. But in that case the claim giving rise to the assessment had been for physical injury, the contraction of a disease as a result of the negligence of the defendant.[120]

Kiefel J also said this:-
Different standards apply to proof of damage from those that are involved in the assessment of damages. Sellars v Adelaide Petroleum NL confirms that the general standard of proof is to be maintained with respect to the issue of causation and whether the plaintiff has suffered loss or damage. In relation to the assessment of damages, as was said in Malec v J C Hutton Pty Ltd, "the hypothetical may be conjectured." The court may adjust its award to reflect the degree of probability of a loss eventuating. This follows from the requirement that the courts must do the best they can in estimating damages; mere difficulty in that regard is not permitted to render an award uncertain or impossible[121]

[119][2010] HCA 12, (2010) 265 ALR 227.

[120]Ibid, [39].

[121]Ibid, [136].

In Seltsam Pty Ltd v Ghaleb,[122] Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:

(a) In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b) The Court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c) The Court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.

[122][2005] NSWCA 208, [103].

It is important to recognise that this claim, be it for past loss of earnings or for future loss of earnings, is a claim for the reduction of earning capacity – that is, the effect that the injuries have had upon a person’s ability to earn income.

In determining that loss of capacity, the assessment usually involves a two step process. First, a determination of the residual earning capacity of the injured plaintiff (if any). Second, an evaluation, in accordance with the Malec principle, of Mrs Lindsay-Field’s hypothetical loss.

So in applying these principles to Mrs Lindsay-Field’s case, it is necessary to form a view as to what the diminution or reduction of her capacity to work has led to: what was she capable of earning in an uninjured state as at September 2002 - hypothetically what would she have earned from then to now and into the future (if applicable). That assessment then needs to be compared with her capacity to earn income as affected by the injury.

There was no real debate as to the level of residual incapacity of Mrs Lindsay-Field. The evidence of Drs Molloy, Sedal and Professor Klug in relation to her inability to work in any sphere was not challenged. In final submissions, counsel for Three Chimneys did not suggest that she had any residual work capacity and focused on the other aspect of the assessment of her damages, namely the hypothetical exercise of her uninjured earning capacity since 2002.[123]
[123]T471.

On that issue, the relevant parts of Mrs Lindsay-Field’s evidence can be summarised as follows:

· She had extensive experience working with horses, and particularly brood mares and foals between 1980 and 1996;

· By 2002, she thought that it was necessary financially to endeavour to return to the workforce[124] and took up the offer of employment made by Three Chimneys;
[124]T 238.

· The job at Three Chimneys was for a limited period of time and would probably have finished by, at the latest, the end of November (i.e. four months);[125]
[125]T76, 100.

· She loved the job[126] and would, it can be readily inferred, have continued in it (either part time or full time) for the foreseeable future, health permitting;

· She intended to work to age 70;[127]

· If she could have obtained full time employment (i.e. beyond the end of the foaling season), she would have taken up such employment as her financial circumstances dictated such a course.[128]

[126]T 238.

[127]T78.

[128]T78.

I accept her evidence on each of these matters. I also note that although there was some evidence that on one occasion she had failed to carry out her job properly, no evidence was led from Mr Kerry, her direct supervisor, that she would not have been re-engaged at Newlands in subsequent years, or that she was not a competent employee.

The real debate was not about Mrs Lindsay-Field’s hypothetical earnings during the foaling season, but rather an assessment of her prospects to earn income over and above the amount earned in that period by either:

(a)Obtaining work on a stud or agistment farm as a foaling attendant outside the foaling season; or

(b)Obtaining a full time position as a stud manager on a property in the Avenel area.

The evidence on the availability of such employment is scant, and comes primarily from her daughter, Sarah, who manages an employment placement business in Euroa and has an involvement in recruiting staff for thoroughbred agistment and breeding properties in Northern Victoria. Between June 2002 and late 2003, she managed a business called “Fieldworkers” and was contacted by Mr Kerry looking for someone to “do foal watch for him.”[129] She arranged a contact between Mr Kerry and her mother which resulted in Mrs Lindsay-Field obtaining the job at Newlands.
[129]T 237.

As a result of a marriage breakdown Sarah relocated to Melbourne in 2002, but returned to Avenel and established a rural human resources consulting business in mid-2007.[130] She said that at the end of the foaling season, November 2002, she believed that there were opportunities for finding a role as a manager of a small farm, however she did not have such positions on her books.[131] It was her belief that her mother would have been more suited to a smaller stud assisting a smaller breeder.
[130]T 239.
[131]T 240.

Since her return to the area in mid-2007, Sarah said that the number of businesses in the thoroughbred industry had probably doubled, particularly with large farms such as Darley and Swettenham, as well as a number of smaller brood mare farms owned by Melbourne professionals.[132] These farms cater for agistment of mares with more personal and individual care. She estimated that the salary of a manager of one of these smaller farms at the present time would be between $50,000 to $60,000, and that in 2002 she estimated the wage to be about $40,000 to $45,000.[133] In cross-examination, she said that she had placed foaling attendants in the district over the last three years but in large rather than small operations.[134]
[132]T 241.
[133]T 242.
[134]T 261.

In my view, Sarah’s evidence does no more than establish that there were opportunities, limited as I perceive it, for Mrs Lindsay-Field to obtain employment as a foal attendant or, perhaps less likely, as a stud manager in the area.

A report from Mr Hugh Sarjeant, Consulting Actuary, was tendered which produced a series of calculations of Mrs Lindsay-Field’s loss of earnings. It relies upon a series of assumptions, many of which are problematic. For instance, the starting point is full-time employment using a figure of $780 gross per week, anticipating that she would have worked to age 70. The incremental increase since 2002 is not industry or business specific, but is calculated on average weekly earnings of all females in Victoria. To a considerable extent, his report illustrates the dangers in treating the assessment of loss of earning capacity as a mathematical exercise, however it does provide a yardstick by which to assess the loss.

I have set out at paragraphs [142] and [143] several of the matters which form the basis for an assessment of loss of earning capacity. In addition to those, I add the following:

· Mrs Lindsay-Field would have been able to work until the age of 67, and at the least would have been able to obtain employment for the foaling season (roughly four months at a rate of pay of approximately $590 net based on the calculations of Mr Cumpston, the consulting actuary) for the financial year ended June 2003).[135]
[135]Exhibit P 14.

· She would, in addition, have been entitled to employer contributions to her superannuation fund.

· Notwithstanding her aspirations, there was little likelihood of Mrs Lindsay-Field obtaining full-time employment as a stud manager given her age, lack of experience in the bloodstock industry in recent years and lack of tertiary qualifications.

· On the other hand, there was a realistic prospect of her obtaining employment from time to time outside the foaling season, particularly on small studs requiring extra assistance.

· Notwithstanding her aim to work to age 70, by the time she reached age 67 and having already suffered a stroke, it is unlikely that she would have continued working past that time, but there was nevertheless a possibility of some earnings during that period.

In my view, an appropriate figure to allow for the past eight years loss of earnings is $140,000. This is slightly less than 45% of the total estimate of Mr Sarjeant of the past loss of wages and superannuation loss as calculated by him ($293,000 + $36,000). It reflects an allowance for ongoing work during the foaling season. It takes into account the chance of employment being obtained outside the foaling season and a small allowance for the prospect of obtaining managerial work. Viewed another way, it reflects an average of $17,500 net per annum which I think is an appropriate allowance taking the period of loss as a whole.

In relation to future loss of earning capacity, as I have said, I think it appropriate to allow a further year’s loss of income to age 67 and thereafter a small allowance for any future loss. In my view, in a physically demanding industry such as that of handling thoroughbred mares and foals, it is unlikely that Mrs Lindsay-Field would have worked past age 67 – it is more likely she would have worked to the end of the 2011 foaling season. There must, however, be some allowance for the loss of opportunity to undertake this employment thereafter. I allow a total of $25,000 under this head.

In total, the allowance for loss of earning capacity is $165,000.

Fox v Wood

The parties were agreed that a figure of $7,305 should be allowed under this head.

Summary
(a)General damages  $250,000
(b)Loss of earning capacity:
(i)Past loss  $140,000
(ii)Future loss   $25,000

(c)Fox v Wood $7,305
Total:$422,305

Conclusion

Mrs Lindsay-Field has established negligence on the part of Three Chimneys. Pain and suffering damages are assessed at $250,000 less any deduction pursuant to s 134AB(25)(b) of the Act. Pecuniary loss damages are assessed at $172,305, less any deduction pursuant to s 134AB(25)(a) of the Act. In the event that the appropriate award for interest cannot be agreed between the parties, I shall fix that amount.

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Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436

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[2010] VSC 436

29 September 2010