Lock v Lock - [1999] WADC 125

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: ALBANY

CITATION: LOCK -v- LOCK & ANOR [1999] WADC 125

CORAM: MACKNAY DCJ

HEARD: 19-20 JULY, 10 NOVEMBER 1999

DELIVERED : 19 NOVEMBER 1999

FILE NO/S: CIV 52 of 1998

BETWEEN: IAN KINGSLEY LOCK
Plaintiff
AND
ALAN RAY LOCK
MAUREEN LYNETTE LOCK
Defendants

Catchwords:

Negligence - Employer and employee - Duty of care - Farm worker on motor cycle in collision with closed farm gate - Turns on own facts.

Legislation:

Nil

Result:

Defendants liable

Representation:

Counsel:

Plaintiff: Mr B G Bradley
Defendants: Mr M H Zilko

Solicitors:

Plaintiff: Moss Bradley
Defendants: Freehill Hollingdale & Page

Case(s) referred to in judgment(s):

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe (1945) 71 CLR 637
Bus v Sydney County Council (1989) 167 CLR 78
Chappel v Hart (1998) 72 ALJR 1344
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Kondis v State Transport Authority 1984 154 CLR 672
McGhee v National Coal Board (1973) 1 WLR 1
McLean v Tedman (1984) 155 CLR 306, 312
Shirt v Wyong Shire Council (1980) 146 CLR 40
Snell v Farrell (1990) 2 SCR
Teubner v Humble (1963) 108 CLR 491
Waugh v Kippen (1986) 160 CLR 156
Wilsher v Essex Area Health Authority [1988] AC 1074

Case(s) also cited:

Commissioner of Railways v Halley (1978) 20 ALR 409
Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177
Electric Power Transmission Pty Ltd v Orgaz; unreported; FCt of SCt of WA; Library No 7914-C; 3 November 1989
Hill-Douglas v Beverley; unreported; Qd Ct of Appeal; 18 December 1998
McLean v Tedman (1984) 155 CLR 306
Miletic v Capital Territory Health Commission (High Court of Australia) 1995; A Tort Rep 81-356
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225

MACKNAY DCJ:

Introduction

The plaintiff was born on 14 May 1948.
The plaintiff and the first named defendant (the "defendant") are brothers.
On 28 August 1995 the plaintiff was in employment as a farm worker on "Takarlarup Farm" (the "farm"), a property owned by both the defendants, when he was injured whilst riding a motorcycle.
The plaintiff alleges that his injury resulted from a collision between the motorcycle and a farm gate, and, amongst other allegations, that the defendants were negligent in failing to mark the gate with "conspicuous" material, it being also alleged that a failure on the part of the plaintiff to see the gate until it was too late, due to it being difficult to see, was the cause of the accident.
The defendants deny that they were negligent and further say that the plaintiff had all necessary experience and skill, was able to manage the farm as if it was his own, had himself arranged for the installation and placement of fences and gates on the farm and was able to carry out any necessary work without the need for prior consultation.
The defendants further say that the plaintiff's accident was caused by or contributed to by his own negligence.
The parties have agreed the quantum of damage and the matter is therefore one of liability only.
The parties
Both the plaintiff and the defendant were brought up on the family farming property.
The plaintiff attended high school to age 16 years, spent a year at Muresk agricultural college, and then returned to the family property, where he spent some years, working the property for part of that period in partnership with his younger brother and his mother.
In about 1987 the plaintiff and his wife left the family property and moved to the farm, having taken a lease of the same with an option to purchase.
The plaintiff then commenced farming operations there.
The defendant was born in 1946, and is approximately 2 years older than the plaintiff.
The defendant also left school at age 16 years and commenced farming. He then did 2 years national service, and on his return commenced to farm a conditional purchase block at Cape Riche, about 80kms from the family property, that had been allocated to his father and him.
In 1989 the plaintiff experienced financial difficulties, and the defendants agreed to take over the farm lease and option to purchase, which they did.
The two defendants duly exercised the option to purchase and became the owners of the farm.
The plaintiff and his wife however continued to live in the house on the farm.
The farm
The farm comprises an area of about 2000 acres.
When the defendants took the farm over the fences were run down and attention to that was a priority.
The defendant decided to alter part of the layout of the paddocks so as to create what was described as a "lane" through portion of the property, for the purpose of stock movement.
After designing the general layout the defendant then arranged for fencing materials to be supplied to the plaintiff and over a period of some years the plaintiff carried out fencing work including the construction of lane fencing.
The lane was two chains, or about 40m wide, and approximately 2.6kms in length.
For most of its length the lane ran in an east west direction, its western end being close to the farmhouse and shearing shed.
On each side of the lane were fenced paddocks, with gates which opened onto the lane.
There were also a number of fences across the lane, each with a gateway in the middle. The plaintiff thought there were six in number.
Each gateway was 14 feet in width, and each had fitted to it a form of "cocky" gate, 1.2m in height, constructed by the plaintiff.
The gateway which is of particular relevance here was bounded on each side by a timber straining post, whilst the adjacent wire fence across the lane on either side had a length of black polythene tubing along the top strand of wire. The plaintiff said that was there so that the sheep would see the fence and not put pressure on it.
The gates between the paddocks and the lane had tubular steel frames and the defendants had intended to install steel gates in the fences across the lane in due course.
The gates constructed by the plaintiff consisted of 7‑9‑30 ringlock wire, with a star picket at one end, for closure purposes, the other end being attached to a gatepost with wire. "Cocky gate" is not a true description of those gates, the plaintiff said, as such usually had "a stick on either end and probably one or two in the middle". Each of the other gates constructed by the plaintiff on the farm were in that form, he said.
The plaintiff said that he had not put any star pickets in the mid section of the lane gates, although those would assist in the gate remaining upright and would also enable sheep to see the gate, as he thought replacement with steel gates would be undertaken by the defendant within months.
It had also been intended that a gravel surface be laid in the lane at the same time as the gates were replaced.
The defendant confirmed that it was "only ever intended" that the cocky gates be temporary. The gate heights would be determined when the gravel surface was laid, so that the gates would be replaced at that time.
There had however subsequently been a downturn in the wool price, and the work had been postponed.
The defendant said that he had never seen a cocky gate with polythene piping on it and any marking was by way of a vertical stick. He further said that after a cocky gate was opened it was usually "thrown away" on to the ground, and piping would cause a problem when that was done so that it would be necessary to walk around the gate, instead of over it.
A vertical stick in the middle of the gate was the "normal procedure", the defendant said, and it was a "fair assumption" that made it obvious to a person travelling down the lane.
The plaintiff said that on opening a cocky gate he would place it back against the fence.
The plaintiff also said that prior to the accident he had not seen any need to attach anything to the cocky gate to remind himself that it was there.
The defendant also agreed that a gate with a frame was more visible than a cocky gate as constructed.
Following the takeover of the farm by the defendants the plaintiff said that he worked there full time for 3/4 years.
After that time, as there was insufficient work for him to be engaged full time on the farm, the plaintiff said that he also did some outside contracting work.
Apart from one or two crops, the defendants had run "dry" sheep in the form of wethers on the farm, and in 1995 the stock numbered about 5,000, according to the plaintiff. That form of farming was "low maintenance", he said.
The defendant described the farm operation as being like a "hobby" farm.
The plaintiff described himself as a "farmhand", and said that the first defendant had "total control" in the running of the farm. It was common ground that the day to day operation of the farm was left to the plaintiff, whilst the defendant, in the absence of an activity such as shearing, would only come to the farm about once a month.
Apart from very minor purchases on two or three occasions, the plaintiff said that he had nothing to do with the ordering of materials and was otherwise involved in purchases only on the instruction of the defendant. Further, he said that he could not employ any assistance without the consent of the defendant.
None of the managerial decisions were made by him, the plaintiff said, and there was "a big difference to running the farm yourself and working virtually as a farmhand".
The defendant did arrange such activities as sales of sheep, shearing, crutching and drenching, the first activity occurring at least twice, the second once and the third about four times each year, according to the plaintiff.
Transport around the farm was in the form of a Honda motorcycle, which had come from the defendant's other property.
The plaintiff was an experienced motor cyclist, having ridden such machines for over 25 years.
The farm motorcycle was used to check the sheep, the plaintiff said, and he also used it "95 per cent of the time" to move sheep.
As to the method of use of the lane the plaintiff said:
"Its mainly used for ease of moving stock from the shearing shed to their designated paddock, or wherever. It means you don't have to go past other mobs of sheep and it's very convenient (for) access from one end of the farm to the other, either by bike or vehicle. All the gates were always left open on the laneway so it was only virtually a few minutes from one end to another."
When asked whether it was the case that the gates in the lane were kept open for the purpose of traverse the second defendant said "(t)hat's the whole principle".
The plaintiff travelled up and down the lane frequently, and said he might go down the lane "a couple of times" each day.
Although there was no farm utility the plaintiff had his own which he used on the farm "occasionally", he said.
Accident
Crutching was arranged to commence on Monday 28 August 1995, as stated the day of the accident, and a team with a portable cradle was due to attend the farm on that day, the cradle to be erected next to the shearing shed.
The plaintiff said that approximately 1500 sheep would ordinarily be put through each day, with the sheep for the day being yarded at the shearing shed prior to the work being done.
Those sheep would be removed from their paddocks and brought down the lane. They would then be returned in the same way.
On each occasion the appropriate gate in the lane would be closed and the paddock gate opened, so that the sheep would be obliged to move in the direction desired.
The plaintiff had arranged for assistance in the putting of the sheep through the crutching operation, in the person of a friend of his son, Brian Lesueur.
Mr Lesueur, who is now a general hand with a radiator company, said that he went to the farm at about 7.00am on the day. The plaintiff was there and the crutching team was also present when he arrived, Mr Lesueur said.
There were also sheep there, he said.
At about 8.00am the plaintiff had gone to get more sheep. When he had not returned by noon, Mr Lesueur said that he and the plaintiff's wife, Mrs Dulcie Lock, had driven up the lane.
Mr Lesueur said they had there found the plaintiff sitting against a gatepost on the left side of a gateway in the lane, the motorcycle being tangled in the wire of the cocky gate.
There was a small skid mark on the same line as the motorcycle but about 1.5/2m back from it, he said.
At 8.00am there had been dew on the ground, it had just started clearing up, and the "sun was almost right out", Mr Lesueur said.
Mrs Lock said that the day had been clear. It was also her recollection that the plaintiff had gone off up the lane at about 8.00am on his motorcycle, and that Mr Lesueur had come to the house in search of the plaintiff at about noon.
After the pair had travelled down the lane in Mr Lesueur's vehicle, Mrs Lock said they had found the plaintiff at the fourth gateway along the lane. The gate was open and the motorcycle was entangled in it. There were no sheep in sight in the lane.
Mrs Lock thought they may also have been to the paddock the day before, and that Mr Lesueur had been there on that day too.
Mr Lesueur however said he had not been present at the farm on the previous day.
As to his experience with gates, Mr Lesueur said that he had seen other cocky gates like those in the lane, and also gates with poles in the middle, polypipe and pieces of rag attached, the latter presumably being to make a gate more visible.
The plaintiff said that he had no recollection of the events of 28 August 1995, and his first recollection of accident related events began about three weeks later when he was in Royal Perth Hospital.
The plaintiff was not able to say whether sheep had been yarded the day before.
He said that if he had travelled east along the lane at about 8.00am in the morning the sun would have been quite low over the lane, and directly in front of him.
The plaintiff said that he assumed that he had earlier closed the gate with which his motorcycle had collided, and that it was a "fair bet" that he would have done so, given his mode of operation, and as the gate was closed to access sheep.
The defendant attended the farm the following day, by which time the motorcycle had been moved and the gate shut. He said however that the gate to the paddock to the south of the lane had been open when he arrived. The defendant agreed that given the date and weather conditions the plaintiff would have travelled directly into the sun, which would make the gate "even more difficult to see".
Apart from the evidence of the witnesses, photographs and a video of the particular gate were produced, together with some other photographs.
Law
The duty of an employer "is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of each case": Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J.
In relation to the application of that duty to a situation where an employee worked outside, and with a measure of freedom as to manner of performance of his duties the High Court has said:
"In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence: Wheare v Clarke (1937) 56 CLR 715 at 723; Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 at 444. The employer is not exempt from the application of this standard vis-à-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk."
McLean v Tedman (1984) 155 CLR 306, 311‑312 per Mason, Wilson, Brennan and Dawson JJ.
The same Judges also stated in McLean (313) that:
"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed. (1983), pp.480-481. And in deciding whether an employer has discharged his common law obligations to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."
The duty of care is personal to the employer ie it is non‑delegable: Kondis v State Transport Authority 154 CLR 672, 688.
Those rules extend to the provision of a safe place of work and of proper plant.
Many of the claims for personal injury considered by courts have of course concerned questions of reasonableness in the context of an employee who is either himself skilled, or who if not skilled, has been injured in the course of carrying out some very simple task.
Authorities of that kind were cited here.
The question whether there has been a breach of duty in a particular case is however a question of fact, and in the absence at least of a prior determination on identical facts a court is not bound by earlier decisions: Bus v Sydney County Council (1989) 167 CLR 78, 86, 89.
Although such decisions are often referred to as a guide to applicable standards of care and reasonableness, change in social and other conditions can result in changes to those concepts such that decisions of an earlier time are of very limited relevance: see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 308‑309.
In Teubner v Humble (1963) 108 CLR 491 Windeyer J said (at 503):
"[D]ecisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application…particular criteria for the essentially flexible and general concept of negligence."
That passage was set out, and approved, in the judgment of the majority (Mason CJ, Deane, Dawson and Toohey JJ) in Bus (at 89).
In Braistina (at 308) the majority (Mason, Wilson and Dawson JJ) cautioned against any "attempt to arrive at conclusions about what changing standards of reasonable care require merely by comparing the decisions in different cases…".
Thus, the question whether in relation to a foreseeable risk of injury, sufficient care was exercised in the circumstances is "ultimately a matter of judgment": Waugh v Kippen (1986) 160 CLR 156, 162 per Gibbs CJ, Mason, Wilson and Dawson JJ.
Turning to causation, in Bennett v Minister of Community Welfare (1992) 176 CLR 408 the majority (Mason CJ, Deane and Toohey J), having posed (at 416) what was described as an "interesting" question of causation, and having then decided that it was not necessary to answer that question, stated:
"In order to answer that question, it might be necessary to consider the view that there is no real distinction between breach of duty and causation, as well as the question whether a failure to take steps which would bring about a material reduction of the risk amounts to a material contribution to the injury. These questions have been considered in Canada in the context of a possible shift in the onus of proof but it seems that the problem still awaits final resolution."

Gaudron J however did express a view (at 420‑421):
"And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury."
The reference to the position as it would be in the absence of evidence that the breach did not have effect was one to the solution suggested by Lord Wilberforce in McGhee v National Coal Board (1973) 1 WLR 1, 6, where it was said:
"But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail - a logic which dictated the judgments below. The question is whether we should be satisfied, in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the additional to the risk, caused by the breach of duty, which caused or materially contributed to the injury? In many cases, of which the present is typical, this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound cases. And if one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi must be taken to have foreseen the possibility of damage, who should bear its consequences."
Gaudron J did note that the House of Lords had subsequently decided in Wilsher v Essex Area Health Authority [1988] AC 1074 that the view of Lord Wilberforce expressed in McGhee ought not be adopted in the UK, whilst in Canada there had been a similar result in Snell v Farrell (1990) 2 SCR at 329‑330.
The High Court again considered the topic of causation in Chappel v Hart (1998) 72 ALJR 1344, and divided 3‑2 on the correct approach. However, with the possible exception of one aspect, dealt with later, it would appear that the views of Gaudron J, set out in Bennett, were accepted by the majority, in the circumstances of that case.
In the course of her judgment in Chappel, Gaudron J referred with approval to a statement by Dixon J in Betts v Whittingslowe (1945) 71 CLR 637, 649 where his Honour said that:
"'Breach of duty' coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach."
Gummow J said (1358) that:
"Here, the injury to (the plaintiff) occurred within an area of foreseeable risk. In the absence of evidence that the breach had no effect or that the injury would have occurred even if (the defendant) had warned (the plaintiff)…the breach of duty will be taken to have caused the injury."
His Honour went on to say that:
"(i)n those circumstances the task of (the defendant) was to demonstrate some good reason for denying to (the plaintiff) recovery in respect of injuries which she would not have sustained at his hands but for his failure adequately to advise her."
After a discussion of the difficulties of causation with, in particular, claims of non‑traumatic injury based on exposure to a substance or following medical treatment, and reference to Canadian cases including Snell, Gummow J found (1360) that "(i)t would, in the circumstances of the case, be unjust to absolve (the defendant) from legal responsibility for (the plaintiff's) injury by allowing decisive weight to hypothetical and problematic considerations of what could have happened" to the plaintiff at some later date.
The statement of Gaudron J in Bennett (420‑421) set out above was cited in support of that proposition by his Honour.
The third member of the majority, Kirby J, in the course of an analysis of approaches to legal causation said (at 1367) following an observation that courts in this country had not embraced the theory that there was any shift in the legal onus of proof during a trial:
"Nevertheless, the realistic appreciation of the imprecision and uncertainty of causation in many cases ‑ including those involving alleged medical negligence ‑ has driven courts in this country, as in England, to accept that the evidentiary onus may shift during the hearing. Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established. It is then for the defendant to show, by evidence and argument, that the patient should not recover damages. In McGhee v National Coal Board a Scottish appeal, Lord Wilberforce explained why this was so. Although Lord Wilberforce's statement in McGhee has proved controversial in England, it has received support in the Court. Its principle has also been accepted by international experts such as Professor Giesen. I find Lord Wilberforce's exposition compelling… ."
Kirby J then set out the passage from the judgment of Lord Wilberforce in McGhee referred to above.
His Honour later said (1370):
"Once (the plaintiff) showed the breach and the damage which had immediately eventuated, an evidentiary onus lay upon (the defendant) to displace the inference of causation which thereupon arose."
Chappel was a case where there was a failure to warn of a particular risk of mishap during an operative procedure; the procedure was then carried out and the mishap occurred. The claimant would have required the procedure in any event at some future stage, but said that had she been warned she would have put the procedure off and when obliged to undergo it she would have engaged a more experienced surgeon.
There was thus a relatively close temporal connection between the breach, constituted by the failure to warn, and the injury, which resulted from the claimant's decision to then undergo the procedure.
However, the gloss that Kirby J, on first impression, appeared to place on Lord Wilberforce's statement in McGhee, that an evidentiary onus may shift once it is shown a breach is "closely followed by damage" (italics mine) was related simply to the issue of what might have happened had the plaintiff postponed the procedure and it was ultimately done by another surgeon (1370).
Although the effect of Chappel is not in all respects clear I consider that if, in a case like the present, a breach of duty is established that is sufficient to justify an inference, in the absence of evidence to the contrary, that the accident did result from the breach.
Issues
Although the plaintiff's allegation that he had collided with the cocky gate on the motorcycle was denied by the defendants in the defence that was not put in issue at the trial and it could be said to be in effect common ground that such a collision occurred. In any event I have no difficulty in finding that the plaintiff and the motorcycle did collide with the cocky gate.
The first issue then is whether the risk that the plaintiff might ride along the lane and not see a cocky gate, or not see it until it was too late, so as to collide with the gate, was not "far‑fetched" or "fanciful" but was a "real" risk so as to be reasonably foreseeable: see Shirt v Wyong Shire Council (1980) 146 CLR 40, 47.
The second issue involves an enquiry, if the first question be answered in the affirmative, as to what a reasonable employer should do in response to the risk.
As to that, in Shirt Mason J (with whom Stephen and Aickin JJ agreed) said (at 47‑48):
"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."
Finally, an issue arises as to whether or not the plaintiff was himself negligent.
Conclusions
Each of the witnesses apparently gave truthful evidence.
The evidence, and my findings, as to the factual position surrounding the accident, can be then summarised as follows:
•To prepare for the crutching the plaintiff removed sheep from their paddock(s) and brought them along the lane to an area adjacent to the shearing shed.
•I am not able to determine whether that was done on Sunday or early on Monday morning; in the absence of any suggestion to the contrary I consider it occurred at one or both of those times.
•Prior to moving the sheep into the lane the plaintiff closed the cocky gate next along the lane.
•There is no evidence as to the usual course (if any) of such an exercise ie whether sheep further away are first moved or those closest to the shearing shed, and no finding is possible.
•The plaintiff did collide with a closed cocky gate.
•The cocky gate was, it was conceded by the first defendant and in any event it is apparent on the evidence, difficult to see when in a closed position.
•The plaintiff rode down the lane at a time when the morning sun would have been relatively low in the sky over the end of the lane.
•The plaintiff travelled down the lane in order to draft further sheep, and it is possible he might have looked about for sheep, and become distracted as a result, so that he failed to keep a proper lookout.
•The plaintiff was apparently the only person who regularly went down the lane, and he traversed it daily, and was familiar with it and the gates.
•The plaintiff was experienced in farm work, and his role and responsibilities on the farm were more than those of a typical farmhand. He was not, however, the farmer.
•The plaintiff had constructed the cocky gates in the lane without additional uprights in the belief that such would only be temporary.
•If the plaintiff closed a cocky gate in the lane, and then forgot that fact, or erred in recollection as to which gate had been closed, the risk that he might not see the gate when travelling down the lane on the motorcycle, particularly when the sun was low in the sky over the lane before him, was not insignificant.
•For the reason mentioned, there would ordinarily only be one closed gate.
•Although not a fast rider the plaintiff might travel down the lane at a speed of up to 30kph so that a collision with a gate could result in substantial injury.
•The cocky gates in the lane could have been made far more visible extremely easily just by the addition of uprights consisting of star pickets, or alternatively by the use along the topwire of, plastic piping or other solid material.
What I would then make of those findings is this.
In my view the risk that the plaintiff might forget that he had closed a cocky gate in the lane, or simply not be mindful that he had closed a particular gate, and then ride down the lane and not see the gate, or not see it until it was too late and then collide with that gate must be said to have been reasonably foreseeable.
The real question is whether or not the defendants were obliged to respond to that foreseeable risk of injury. This is a case where, because the response would have been relatively easy, it is necessary to guard against a simple application of hindsight and one where it is necessary to keep steadily in view the fact that a response was only required if a reasonable employer in the position of the defendants would have felt obliged to so respond.
There are inevitably dangers in any work place for those who are forgetful or otherwise act without care, and the obligation of a reasonable employer is not to eradicate every conceivable danger. That is particularly the case on a farm which extends over a large area, and necessarily contains many hazards for the unthinking such as fences, dams and the like.
Nonetheless, given the lane was traversed regularly by the plaintiff on a motorcycle, the degree of difficulty in seeing the gate, the likelihood that serious injury would result from a collision between a motorcyclist and a closed gate, and the possibility that the plaintiff might be forgetful or distracted, travel down the lane at a time of impaired visibility, or for some other reason not see the gate, either in time or at all, I think the gate, as constructed, represented a fairly obvious danger and that the defendants had an obligation to at least reduce the risk of the gate not being seen.
The simple expedient of adding star pickets as uprights in the middle of the gate would have greatly increased its visibility, and would also have brought about a material reduction in the risk of injury.
As already stated, as a matter of law the defendants had a duty of care to the plaintiff, their employee, and that duty being non‑delegable could not be discharged simply by leaving it to the plaintiff to be responsible for his own safety, particularly when there was no direction to the plaintiff that he was so responsible or must, as part of his duties, actively monitor the farm for hazards.
Further, it was the decision of the defendants alone not to incur the expense of framed gates when the lane was constructed, and that brought about the relevant state of affairs, the cocky gate being constructed and installed by the plaintiff in response to that decision, and as a temporary measure, on the understanding that the gate would be replaced within a few months.
Instead of the gate being so replaced, the matter was left to drag on.
The responsibility for recognising that there was a need to improve the gate was, in the circumstances, necessarily in the circumstances that of the defendants as employers.
For those reasons the defendants were in my opinion in breach of their duty of care owed to their employee, the plaintiff.
This is then a case where although the precise mechanism of the accident cannot be established by the plaintiff, there was a breach of duty and then an accident, and injury, of the very kind that would be likely to follow from the breach.
In those circumstances an evidentiary onus shifted to the defendants to show that the breach did not make a material contribution to the plaintiff's injury, and I think it is plain that in the circumstances here the defendants would be unable to discharge that onus, and have failed to do so.
The plaintiff's claim must therefore succeed.
It needs to be said that this is not a case about the use of cocky gates generally, and it contains no indictment of that use.
There are many examples in the books of established employer liability where a clear risk, known to the employee, is not deflected and is then followed by injury to the employee, an accident arising from the use of a machine without a safety guard being an obvious example, and this case, which necessarily depends on its own peculiar circumstances, is simply one other.
In the circumstances the defendant has not established that the plaintiff was guilty of any contributory negligence.
There ought therefore be judgment for the plaintiff in the full amount of his claim.