Martin v Clarke
[2005] WASCA 66
•5 APRIL 2005
MARTIN & ORS -v- CLARKE & ORS [2005] WASCA 66
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 66 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:5/2004 | 8 MARCH 2005 | |
| Coram: | MALCOLM CJ STEYTLER P MCLURE JA | 5/04/05 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Appeal and cross-appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | IAN McNEIL MARTIN JILL LORRAINE MARTIN JOHN McNEIL MARTIN RONALD DAVID CLARKE PETER STEICKE KERRY STEICKE |
Catchwords: | Tort Negligence Employer's liability Liability of person for personal injuries suffered by employee of independent contractor Whether breach of duty Whether contributory negligence Challenge to assessment of damages |
Legislation: | Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) Supreme Court Rules, O 63 r 9 Workers' Compensation and Rehabilitation Act 1981 (WA) |
Case References: | Andar Transport Pty Ltd v Brambles Ltd (2004) 78 ALJR 907 Astley v Austrust Ltd (1999) 197 CLR 1 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Gardner Bros & Perrott (WA) Pty Ltd v Seat, unreported; FCt SCt of WA; Library No 7318; 12 October 1988 Jones v Persal & Co [2000] QCA 386 Kondis v State Transport Authority (1984) 154 CLR 672 Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 McLean v Tedman (1984) 155 CLR 306 McLean's Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423 Nair v Health Administration Corporation (1994) Aust Torts Reports 81-312 O'Connor v Commissioner for Government Transport (1958) 100 CLR 225 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Raimondo v State of South Australia (1979) 23 ALR 513 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Tame v State of New South Wales (2002) 211 CLR 317 Witham v Shire of Bright [1959] VR 790 Wylie v The ANI Corporation Ltd [2002] 1 Qd R 320 Wyong Shire Council v Shirt (1980) 146 CLR 40 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Cant v Fleay, unreported; FCt SCt of WA; Library No 960381; 18 July 1996 Commonwealth v Verwayen (1990) 170 CLR 394 Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7914; 3 November 1989 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Kschammer v R W Pipe & Sons Pty Ltd [2003] WASCA 63 Lloyd v Faraone [1989] WAR 154 Robertson v B H MacLachlan Pty Ltd (1985) 59 ALJR 409 Romeo v The Conservation Commission (1998) 192 CLR 431 State of NSW v Lepore (2003) 212 CLR 511 Stojkovski v Fitzgerald [1989] WAR 328 Water Board v Moustakas (1988) 180 CLR 491 Woods v Multi Sport Holdings Pty Ltd (2002) 208 CLR 460 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MARTIN & ORS -v- CLARKE & ORS [2005] WASCA 66 CORAM : MALCOLM CJ
- STEYTLER P
MCLURE JA
- JILL LORRAINE MARTIN
JOHN McNEIL MARTIN
Appellants
AND
RONALD DAVID CLARKE
First respondent
PETER STEICKE
KERRY STEICKE
Second respondents
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BLAXELL DCJ
Citation : CLARKE -v- MARTIN & ORS [2003] WADC 281
File No : ALB 4 of 2000
Catchwords:
Tort - Negligence - Employer's liability - Liability of person for personal injuries suffered by employee of independent contractor - Whether breach of duty - Whether contributory negligence - Challenge to assessment of damages
Legislation:
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA)
Supreme Court Rules, O 63 r 9
Workers' Compensation and Rehabilitation Act 1981 (WA)
Result:
Appeal and cross-appeal dismissed
Category: B
Representation:
Counsel:
Appellants : Mr D R Clyne
First respondent : Mr C L Zelestis QC & Mr B G Bradley
Second respondents : Ms B A Mangan
Solicitors:
Appellants : Pynt & Partners
First respondent : Bradley & Bayly
Second respondents : Phillips Fox
(Page 3)
Case(s) referred to in judgment(s):
Andar Transport Pty Ltd v Brambles Ltd (2004) 78 ALJR 907
Astley v Austrust Ltd (1999) 197 CLR 1
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Gardner Bros & Perrott (WA) Pty Ltd v Seat, unreported; FCt SCt of WA; Library No 7318; 12 October 1988
Jones v Persal & Co [2000] QCA 386
Kondis v State Transport Authority (1984) 154 CLR 672
Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555
Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McLean v Tedman (1984) 155 CLR 306
McLean's Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423
Nair v Health Administration Corporation (1994) Aust Torts Reports 81-312
O'Connor v Commissioner for Government Transport (1958) 100 CLR 225
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Raimondo v State of South Australia (1979) 23 ALR 513
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Tame v State of New South Wales (2002) 211 CLR 317
Witham v Shire of Bright [1959] VR 790
Wylie v The ANI Corporation Ltd [2002] 1 Qd R 320
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Cant v Fleay, unreported; FCt SCt of WA; Library No 960381; 18 July 1996
Commonwealth v Verwayen (1990) 170 CLR 394
Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305
Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7914; 3 November 1989
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Kschammer v R W Pipe & Sons Pty Ltd [2003] WASCA 63
Lloyd v Faraone [1989] WAR 154
Robertson v B H MacLachlan Pty Ltd (1985) 59 ALJR 409
(Page 4)
Romeo v The Conservation Commission (1998) 192 CLR 431
State of NSW v Lepore (2003) 212 CLR 511
Stojkovski v Fitzgerald [1989] WAR 328
Water Board v Moustakas (1988) 180 CLR 491
Woods v Multi Sport Holdings Pty Ltd (2002) 208 CLR 460
(Page 5)
1 MALCOLM CJ: In my opinion, this appeal and cross-appeal should be dismissed for the reasons to be published by McLure JA.
2 STEYTLER P: I have read the judgment of McLure JA. I agree with it. There is nothing I wish to add.
3 MCLURE JA: The first respondent (plaintiff), Mr Clarke, was a shearer who suffered personal injuries while shearing the appellants' (first defendants') sheep on their farm in the Mount Barker district. At the time Mr Clarke suffered the injuries he was employed by the second respondents (second defendants), Mr and Mrs Steicke, who carried on business in partnership as shearing contractors (the employer). The appellants engaged the employer to shear their sheep (the shearing contract). The appellants' sheep had not been properly drained of waste matter (urine and faeces) at the time they were presented by the appellants for shearing. It was common ground that most sheep, including wethers, should be placed in a holding yard without food and water for eight hours prior to shearing. Mr Clarke slipped on excessive waste matter in the pen from which he removed the sheep in order to shear them ("catching pen").
4 The learned trial Judge found that Mr Clarke's injury occurred because the appellants had failed to properly drain the wethers prior to them being presented for shearing, which failure was a breach of industry standards and was also a failure to exercise reasonable care for the well being of the shearing team. The trial Judge also found that Mr Clarke was contributorily negligent and reduced his award of damages by one third. Mr Clarke's claims in negligence and for breach of contract against the employer were dismissed.
5 The appellants appeal against the finding of negligence against them and against the finding that the employer was not negligent. Mr Clarke cross-appeals against the dismissal of his claims against the employer and the finding of contributory negligence. He also challenges the assessment of damages.
The Various Claims
6 Mr Clarke claimed against the appellants in negligence for delivering undrained wethers to the shearing shed. He claimed against his employer in negligence and in contract. The particulars of negligence relevantly included the employer's failure to:
(Page 6)
- (i) ensure the wethers were delivered to the shearing shed at least eight hours before shearing;
(ii) supervise or adequately supervise the work in the shearing shed so as to ensure that the conditions remained safe for work by the shearers and, in particular, that the sheep were delivered to the shed in proper condition and that the floors in the catching pens were safe and dry; and
(iii) order that the shearing works be suspended until the wethers had time to dry out, cool down and the floors in the catching pens had been rendered safe.
7 The contract claim was based on an implied term of the employment contract that the employer would provide to Mr Clarke a safe place and system of work and exercise reasonable care for his safety while he was working in the course of his employment. The particulars of negligence are relied on as giving rise to the employer's breach of the implied contractual terms.
8 The appellants filed a third party notice against the employer claiming damages and alternatively a contribution under the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) (Contribution Act) on the general grounds that:
"(a) the Plaintiff's injuries were caused or contributed to by [the employers'] negligence and/or breach of statutory duty;
(b) the Plaintiff's injuries were caused or contributed to by [the employers'] breach of contract."
9 The employer counterclaimed against Mr Clarke for breach of his contract of employment. The employer also filed a notice of contribution against the appellants. The claim was in contract and negligence. It is alleged that it was an implied term of the shearing contract that the appellants would provide the means by which the employer could satisfy the implied terms of the contract of service to which I have referred. The alleged breach is the appellants' provision of undrained sheep for shearing. The employer also claims that Mr Clarke's injuries were caused by the appellants' negligence in providing undrained sheep.
(Page 7)
10 As the trial Judge found that the employer was not negligent, he did not deal with the matters arising under the third party notice, counterclaim or contribution notice.
Background and Findings
11 Mr Clarke was 30 years old at the time of the accident which occurred after 2.30 pm on 5 February 1999. He had worked on a shearing team for most of his working life since leaving school at 15. He started as a rouseabout and subsequently became a shearer, eventually gaining a reputation as a "ringer" or "gun shearer", shearing more than 200 sheep per day. He was also a qualified wool classer.
12 From 1994 to 1998 Mr Clarke, in partnership with his wife, carried on business as a shearing contractor. He was in charge of a shearing team working in the Mount Barker district. In April 1998 Mr Clarke sold his shearing round (or run) to Mr and Mrs Steicke who already had a shearing round which they intended to keep and which kept them fully occupied. For that reason, the trial Judge said, they purchased Mr Clarke's round on the basis that his existing team would continue to operate as before and that Mr Clarke would be its ringer. An issue at trial was whether Mr Clarke remained in charge of the shearing team after he sold the business. The appellants' farm had been part of Mr Clarke's shearing round before the sale of his business.
13 The shearing shed on the appellants' farm was surrounded by holding paddocks and smaller holding yards. Sheep to be shorn were rounded up in the immediately adjacent yards and sent through a series of races and small pens towards four shearing stands in the shearing shed. In order to collect a sheep to shear, each shearer had to enter a catching pen to select a sheep which was then tossed onto its back by the shearer and dragged backwards through a swing door to the shearer's stand. The floor of the catching pen comprised a wooden grate which allowed waste to drop to the ground below. The catching pen was in the shearing shed.
14 On the day of the accident the shearing team comprised four shearers, including Mr Clarke, a wool classer, a wool presser and two or three rouseabouts or shed hands. The wool presser on that day was Mr Lawrence Hogg and his duties included extracting sheep from the yards adjacent to the shed and forcing them through the various races and pens into the catching pens.
(Page 8)
15 The shearing team worked Monday to Friday from 7.30 am to 5.30 pm (or 4.30 pm on Fridays) with three breaks, including a one-hour lunchbreak commencing at noon.
16 In accordance with industry custom, it was the appellants' responsibility to fill the yards adjacent to the shed with the sheep to be shorn and to ensure there were sufficient sheep to enable the shearing work to proceed continuously. It was also the appellants' responsibility to ensure the sheep had been drained.
17 The trial Judge accepted the evidence of Mr Peter Black, an expert shearing industry consultant. His evidence was that it was common practice, as recognised by the WA Shearers Contractors Award, that sheep had to be drained prior to shearing in order to minimise waste matter within the shearing shed and because it subdues them. That is particularly important when shearing larger sheep such as wethers. A further reason for draining the sheep is that faeces and urine on the floor will stain the wool and reduce its value.
18 Shearing commenced at the appellants' farm on 4 February 1999. The appellants determined the order in which sheep were to be shorn; they commenced with ewes, with wethers to follow. Wethers weigh up to 120 kilograms. Early on Friday, 5 February 1999 Mr Hogg noted that there were insufficient ewes in the shearing shed yards to last the day. The appellants conceded that they had miscalculated the number of sheep and did not realise there was a shortage until told by Mr Hogg on that morning. Thereafter the appellants arranged for wethers to be brought to the shearing shed.
19 The trial Judge found that the wethers arrived at lunchtime and after approximately 15 minutes of cooling were immediately sent into the shearing shed. Once inside, they urinated and excreted excessively, causing the grating and flooring in the shed to become slippery. The wethers were also agitated after being driven at a fast pace and for that reason were more resistant to being shorn. He concluded that those events occurred because the appellants failed to properly drain the wethers prior to them being presented for shearing which was a failure to exercise reasonable care for the well being of the shearing team.
20 The trial Judge also found that Mr Clarke sustained significant injuries in the region of his right arm and shoulder as a result of him losing his footing on the slippery grating floor in the catching pen while handling a violently thrashing wether. The slipperiness of the floor and
(Page 9)
- the agitation of the wether were direct consequences of the appellants' failure to properly drain the sheep. Accordingly, he concluded that Mr Clarke's injuries were a direct result of the appellants' negligence.
21 As to Mr Clarke's claim against his employer, the trial Judge found that the agreement or understanding between them was that following the sale of the business Mr Clarke's shearing team would remain the same with him as ringer and all that would change was that the employer would be responsible for organisational arrangements. The trial Judge stated:
"The evidence in general also satisfies me that, irrespective of what might have been expressly agreed between the plaintiff and the second defendants, the former had the authority to stop the shearing work at any time if he deemed it to be necessary. The shearers, and particularly the 'ringer' or 'gun shearer' have always had this power within the industry. In the present instance, the plaintiff's authority to take this step was enhanced by his position as the previous owner of the round.
In all of these circumstances I find that there was an implied term of the agreement between the plaintiff and the second defendants that following the sale he would have the duty and power to direct a cessation of work within any shed if for any reason conditions became unsafe or dangerous.
On 5 February 1999, the plaintiff was well aware that the wethers presented for shearing were 'very agitated' and that the flooring within his catching pen had become wet and slippery. … Accordingly, he ought to have been well aware that the conditions were dangerous and that there would be a risk of injury to himself and the other shearers if shearing continued. …
From the second defendants' point of view they were not in a position to, nor could they have been reasonably expected to directly supervise shearing operations within the shed. They were entitled to rely upon the expertise and skill of the plaintiff as their 'gun shearer' in deciding whether or not shearing should continue in the unlikely event of conditions becoming dangerous. There was no other way in which they could reasonably guard against such a risk.
In the present instance, the negligence alleged against the second defendants is essentially the plaintiff's own failure to
(Page 10)
- stop work or take appropriate measures when it became obvious that sheep had been presented in an undrained condition. Although the second defendants owed the plaintiff an undelegable duty of care, I consider it would be unreasonable to find them in breach of that duty by reason of the plaintiff's own failure to respond appropriately to an obvious risk."
22 The trial Judge relied on Witham v Shire of Bright [1959] VR 790. He concluded that Mr Clarke's injuries were not caused or contributed to by the employer's negligence. Both the appeal and cross-appeal challenge the correctness of this finding. It is convenient to deal with that issue first before the other matters that arise for determination in the appeal and cross-appeal.
The Employer's Liability for Negligence
23 The appellants do not challenge any primary or intermediate factual finding made by the trial Judge. Mr Clarke challenges the finding that he, in his capacity as shearer and ringer, had authority to stop the shearing work at any stage (the authority finding) and the finding as to the implied term concerning his power and duty to direct a cessation of work (the implied term finding). Even if the challenge to these findings fail, Mr Clarke contends they do not justify the conclusion that the employer discharged its non-delegable duty of care. I start with the challenge to the factual findings.
24 First some industry background. Industry practice is that shearers are paid piece rates, that is, a specified amount per sheep shorn. Mr Hogg, the wool presser, and, it seems, other non-shearing members of the team were on casual rates and thus only paid for hours worked. Mr Clarke's experience of on-the-job training as part of a team commencing with unskilled (or semi-skilled) tasks and working up appears to be the industry norm. Shearing, at least in the Mount Barker district, takes place between August and May each year. The arrangements between farmers, shearing contractors and members of a shearing team are variable. In the case under consideration, the appellants engaged (and paid) the employer to undertake the shearing. In other circumstances, shearing contractors are paid an organising fee and the members of the shearing team are engaged and paid directly by the farmer (known as "cocky shearing").
25 Mr Steicke, Mr Clarke, Mr Hogg and Mr Black gave evidence relating to the challenged findings. Mr Steicke's understanding was that the purchase of Mr Clarke's business included the shearing team that came
(Page 11)
- with the run, comprising the shearers, wool classer, wool presser and rouseabouts. That understanding was confirmed by Mr Clarke. Mr Clarke's evidence was that he and Mr Hogg remained loyal, although other members of the team had left for reasons which Mr Clarke attributed to the employer's lack of attention to organisational matters. Mr Steicke was asked whether he had any discussions with Mr Clarke about what Mr Clarke's role would be after the sale. To that question Mr Steicke answered in examination-in-chief:
"One role was just to be a shearer, the other role was to - well, look after the run. If anything happened during the day he was to report back to me and I was meant to fix it that night.
When you say if anything happened, what were you sort of thinking about?---If anything went wrong during the day.
What sort of things?---Anything. Like if someone hurts themself or the shearers don't agree with the set-up of the shed - anything like that.
Can you remember where you had the discussions with Mr Clarke … about the terms on which he was going to continue working for you?---It was in house, at the lounge room table."
27 Mr Clarke denied Mr Steicke's evidence of the discussion. His evidence in cross-examination was as follows:
"He said that he had a meeting with you and he told you that if you had any problems you were to report to him in the evening?
---That's incorrect ... The wool classer was in control, as far as I know … That's why I sold the shearing run. I was just a shearer.
… You knew that there wasn't a permanent wool classer there because there was a changeover and you were there and you saw it?---Wool classers come and go. I had five work for me.
(Page 12)
- You knew that you were the most senior shearer on that run at the Martins' place?---Senior I'm unaware of. I was probably middle of the age … .
I don't mean by age. The most experienced, the ringer?---I was the ringer. It doesn't mean I was the most senior. …
But there's a pecking order in a shearing shed, isn't there, and the ringer is the one that most people look up to?---Not really, … a ringer is just another bloke on a handpiece … It doesn't mean he's the boss of the shed."
28 Mr Clarke said in evidence-in-chief that he sold the run to free himself from organisational responsibilities such as having to chase up workers who did not turn up for work. He wanted to devote more time to his farm. As to the wool classer in the team to shear the appellants' sheep, there was a change in personnel after the first day of shearing, Mr Clothier commencing on the day of the accident. Mr Clarke described the ringer as the lead shearer in the shearing run, being the shearer who sheared the most sheep.
29 Mr Clarke was aware that on the day in question the sheep were agitated and had not been drained which increased the risk of injury to shearers. He was asked what he would have done if those circumstances occurred while he owned the run and responded, "I probably would've knocked off … due to the risk to the shearers." He was then asked why he did not cease work once he became aware of the nature and extent of the risk on 5 February 1999. He said, "I would've lost my job and I would've got a bad reputation out of it." In fact, Mr Clarke did not inform anyone of the accident at the time and notwithstanding a very painful shoulder he continued shearing 15 or 16 (agitated) wethers, explaining he was not a "weak sook". When asked why he did not say anything to anyone about the risk posed by the undrained wethers, he said:
"I wasn't in a position to start complaining …
I don't quite understand that. You've been shearing many years. You knew of the risk of these sheep kicking out and the floor getting slipper [sic]?---Do you know what happens to a shearer who's a whinger? I've been in the industry all my life. It's very hard to get a position.
(Page 13)
- But this wouldn't be whinging. This would be commonsense?
---I'm sure where you come from it's not called whinging but where I come from it's called whinging."
30 Mr Steicke was asked whether he had spoken to members of the shearing team about what they should do if they encountered problems with the condition of sheep. He said he had not. It was then put to him, "It's not the done thing in the shearing industry for shearers to just walk off, is it?" He responded, "All shearers have the right to pull out of work. It's their choice. They get paid piecework." He said such conduct would probably not hurt their reputation or their job prospects because "Shearers are too hard to get now. You go out of one shed and you can walk virtually into another shed a couple of days later. Shearers are a rare worker."
31 Mr Hogg had worked for Mr Clarke for three or four years when he was a shearing contractor. According to Mr Hogg, the decision as to whether the shearing team is to stop work is a collective decision of the wool classer and shearers made after the sheep are in the catching pens. This evidence was in response to suggestions that it was his role to either stop the shearing team or inform members of the team of the situation giving rise to the danger. He was asked why he did not "try and save his mates from the risk" and he responded:
"Because it's a decision between the classer and the shearers, not my decision. I can - if they're wet and I know that they're coming through wet, I've still got to bring them in and if they want to shear them wet or if they reckon it's not so bad - I'm not a shearer. I don't know what they class as being too wet, too dry, too full, or not too full."
32 And again later:
"And you knew from previous experience that when sheep are introduced in [an undrained] condition that the shearers and the wool classer get together and decide not to continue working?
---Sometimes they do. Sometime they decide to continue working as well."
33 Although Mr Hogg said the wool classer is in charge of the shed and Mr Clarke would answer to the wool classer after the sale, he was clearly not addressing the question of a decision to cease work.
(Page 14)
34 A report by the expert Mr Black was tendered in evidence. He stated in the report:
"The person in charge of the shearing team, who is normally the woolclasser, has a duty to the shearing team, and to his/her employer, to ensure that no member of the team, including himself/herself, is placed in a position, which is considered unsafe in the shearing industry. It is the duty and responsibility of the person in charge to report safety hazards and if necessary stop the team until it is fixed."
35 I understand Mr Black's evidence to be of industry practice. According to Mr Black, normally the only people in the shearing industry who are formally trained are wool classers and they are trained to supervisory status. In cross-examination Mr Black said that if the contractor is working in the shed, he is in charge, otherwise the person in charge of the shearing team is normally the wool classer. However, the question of who is in charge depends on the experience of the wool classer and the shearer and if there is a temporary classer and an experienced shearer, the question of who is in charge swings the other way to the shearer. The pecking order in the shed, he said, is based on tradition and everyone in the shed would be familiar with and know the pecking order unless they were new. Only the person in charge of the shed (whoever that may be) can call a halt to work and stop the shearing team. Mr Clarke agreed with Mr Black that it is the duty of the person in charge of the shearing team to report a safety hazard and, if necessary, to stop the team until it is fixed.
36 Mr Clarke attended on an occupational physician, Dr John Suthers, retained by the employer's insurer. Dr Suthers noted in a report prepared by him that Mr Clarke told him that he (Mr Clarke) was "the team leader of the second team that was managed and owned by Stieckle [sic] shearers". Mr Clarke denied telling Dr Suthers that and said he told him he used to be the boss.
37 That completes the review of the relevant evidence.
38 I infer from the terms and context of the authority finding that the trial Judge is referring to a shearer's authority to call a halt to shearing in the shearing shed rather than an individual shearer's right to cease work. Either way, the authority finding is against the weight of the evidence. It is contradicted by the evidence of Mr Black (the expert whose evidence the trial Judge accepted), Mr Clarke and Mr Hogg and only the narrow
(Page 15)
- proposition as to an individual shearer's right is supported by Mr Steicke's evidence. In my opinion, the authority finding is not open on the evidence.
39 The trial Judge refers to a number of circumstances leading to his implied term finding. They are (in the order in which he refers to them), firstly, it was agreed that Mr Clarke would continue to work on the round as the gun shearer (ringer), that the shearing team would remain the same and all that would change was that the employer would become responsible for organisational arrangements such as payment of wages and negotiation of contracts; secondly, Mr Steicke's evidence of his discussion with Mr Clarke (which I infer the trial Judge must have accepted) that Mr Clarke was to "look after the run"; thirdly, Mr Clarke understood that the employer would be fully occupied in operating its existing run; fourthly, Mr Clarke was the person in charge of the shearing team prior to the sale and was responsible for decisions that needed to be made in the course of its daily operations; fifthly, once a shearing team has been set up and shearing commences, the duties of the person in charge are minimal because the team members are self-motivated (due to the basis of their remuneration) and do not require supervision or direction (because the tasks are well known and highly repetitive). It is only when something unusual occurs or goes wrong that the person in charge is required to make decisions; and, sixthly, the authority finding.
40 It is apparent from the trial Judge's approach that he finds as a fact there was an implied term or agreement that Mr Clarke had the power and duty to order a cessation of work. Some of the matters to which he refers are contextual circumstances that are relied on to support the implied term finding. Mr Clarke challenges the relevance or accuracy of a number of the matters. It is said Mr Clarke did not agree to continue to work as the ringer after the sale. His status as the ringer was unaffected by the sale; the intention was that the same shearing team operate before and after the sale and as a matter of fact he was the ringer of that team. That some members of the shearing team changed some time after the sale does not detract from the intention of the parties or affect Mr Clarke's acknowledged status thereafter as the ringer. Mr Clarke's status as the ringer did not prevent him from discharging his duties as the leader of the team before, or I infer after, the sale of the run. Further, it is contended that Mr Steicke's evidence of the ways Mr Clarke would look after the run are inconsistent with the finding. I do not accept that submission. The evidence is not inconsistent in terms and I do not understand the examples to be exhaustive. As I understand the evidence, it is to the effect that Mr Clarke was to be in charge in the field and to report any relevant
(Page 16)
- matters to the employer at the end of the working day. I do not infer from Mr Steicke's evidence that Mr Clarke was unable to act without reference to Mr Steicke. Such a conclusion is inconsistent with the unchallenged industry practice referred to by Mr Black.
41 I have previously concluded that the authority finding is not open on the evidence. However, based on Mr Black's evidence, Mr Clarke by virtue of his experience as a shearer, his status as the ringer, his qualifications as a wool classer, his former authority role as leader of the shearing team (most members of which had previously worked for him at one stage or another) and the use of different wool classers on the team justifies the inference that he would be the obvious and stand-out candidate as team leader.
42 There is a disagreement between the parties as to whether the trial Judge found that Mr Steicke and Mr Clarke had agreed that Mr Clarke was to be the person in charge of the shearing team in the field after the sale. In my view, the finding is implicit in the trial Judge's reasons leading to the implied term finding. The first, second, third and fourth considerations to which he referred are directed to that very issue. Having accepted Mr Steicke's evidence, the finding was in accordance with the weight of the evidence. In any event, leaving aside questions of contractual agreement (whether of the service or sale agreement), it was clearly open on the evidence to find that Mr Clarke was, to his knowledge, in charge of the shearing team in the field after the sale. This flows from Mr Steicke's evidence, Mr Black's evidence of industry practice and Dr Suthers' evidence of Mr Clarke's admission.
43 The next question is whether that role includes the duty and power to direct a cessation of work within any shed if for any reason conditions become unsafe or dangerous. In my view that is implicit in Mr Clarke's position as the person in charge of the team in the field and is consistent with industry practice, as identified by Mr Black. The conclusion is not inconsistent with the sale of the business to the employer or its status as Mr Clarke's employer. The agreement does not purport to alter the nature and existence of the employer's duty of care but it is relevant to whether a breach has occurred.
44 The next question is whether the findings justify the conclusion that the employer discharged its non-delegable duty of care to Mr Clarke. Before addressing that question it is appropriate to set out the relevant legal principles.
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Legal Principles - Employer's Liability in Negligence
45 An employer has a personal non-delegable duty to take reasonable care for the safety of its employees: Kondis v State Transport Authority (1984) 154 CLR 672 at 687 - 688 per Mason CJ; Andar Transport Pty Ltd v Brambles Ltd (2004) 78 ALJR 907 at [34].
46 The duty encompasses an obligation to take reasonable steps to provide, inter alia, a safe workplace and a safe system of work: Andar Transport at [34]. The only relevant aspect of the duty in this case is the duty to provide a safe system of work. The employer's obligation in this respect includes foreseeable risks of injury that arise from an employees' own inadvertence and negligence: McLean v Tedman (1984) 155 CLR 306 at 311. The appropriate means of discharging the employer's duty of reasonable care depends on the facts of each case.
47 The fact that a duty is non-delegable means it cannot be discharged through the medium of an employee or independent contractor. Generally, the employer will be personally liable if the evidence shows an absence of care by someone whom the employer has entrusted with performance of the duty.
48 However, there are cases where an employer has been held not to be liable in negligence to an employee who was injured as a result of his own failure to exercise reasonable care in the course of his employment. This is not delegation of the employer's duty to the employee but, rather, the exercise of reasonable care on the employer's part. Three cases serve to illustrate the point. In Raimondo v State of South Australia (1979) 23 ALR 513 the appellant was an experienced painter employed by the respondent. The appellant sustained an injury when a plank fell from two trestles which supported it. It was found the appellant followed an unsafe practice of standing under the plank when trying to increase its overhang by bringing one trestle closer to the other. The employer was aware that this practice was commonly used by its employees, but did not warn them of the danger of the practice or instruct them to adopt some safer method. There were two or three prior occasions when planks had fallen using this practice, but no-one was injured. The High Court held that these circumstances did not call for an instruction or warning from the employer in the discharge of his duty to take reasonable care for the safety of his workman. Mason J said at 518:
"… I cannot think that by giving two experienced painters the equipment to which I have referred and by requesting them to paint the ceiling … without further instruction or caution, the
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- respondent unreasonably exposed them to risk of injury. It is against common sense to say that the taking of reasonable care by an employer called for the giving of an elementary instruction or caution in relation to the slight, albeit evident, possibility of injury which an imprudent mode of adjusting the trestles would entail. The risk of injury was slight, the possibility of its occurrence was as apparent to the employees as it was to the employer and there was no probability that the appellant would have taken any greater care for his safety had he been given an instruction or warning of the kind suggested. … The caution or instruction which he suggests should have been given was a basic counsel or caution of which he was or must have been aware. His injury is in these circumstances the result of his own default …".
49 It can be seen from this passage that matters such as the obviousness of the risk and causation considerations intrude into the breach analysis.
50 Another example is Nair v Health Administration Corporation (1994) Aust Torts Reports 81-312. In that case the plaintiff was a nurse who in the course of her employment provided nursing care to prisoners on an island. The plaintiff had travelled to the island on several occasions on a boat owned and managed by her employer. To alight from the boat the plaintiff stepped onto a locker situated underneath the boat's canopy. While standing on the locker it was necessary for the plaintiff to bend in order to avoid striking her head on the canopy. On the occasion in question the plaintiff failed to bend her head which struck the canopy and she was injured. The Court held the jury were entitled to find the accident occurred without fault of the employer. That case shows that an employer can act reasonably by doing nothing notwithstanding the risk was foreseeable and could reasonably have been reduced or removed.
51 Another similar example is to be found in O'Connor v Commissioner for Government Transport (1958) 100 CLR 225. In that case an experienced plumber was directed by his employer to accompany certain fellow employees for the purpose of reducing the length by which an awning over a tramway starter's box extended over the footpath. The plaintiff went on to the awning for the purpose of removing some iron sheets and while so engaged fell when the awning gave way under his weight. He died from the fall. The Court (Dixon CJ and Webb, Fullagar, Kitto and Taylor JJ) said at 229:
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- "The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.
But the party was provided with trestles and plank and nothing was wanting in tools or equipment. The deceased was experienced in his work. It was obvious that a question must exist whether the awning would bear his weight. The party sent down was as 'expert' or competent to judge of that simple subject as anybody that could reasonably be sent. Doubtless Blyton, who told the deceased to go, thought that he would work on the roof, but it was left to the deceased and the rest of the party to do the job as they thought fit. Blyton was only the leading plumber and when he sent the deceased … he was not directing him how he must perform the work."
52 This line of reasoning was followed in Witham v Shire of Bright (supra). In that case the plaintiff was injured while a tree was being felled by himself and another. The plaintiff alleged he was injured in the course of his employment by the Shire. Sholl J said (at 790):
"I am of opinion that if the proper view of the evidence is that the shire employed the plaintiff as its servant to carry out the felling of the tree and left him alone by mutual arrangement as it were the whole responsibility for the method of felling it, and if, he being an expert, that was a reasonable thing to do in the circumstances, and afterwards an accident happened to the plaintiff because of some negligence or failure in the operation of the system of work which it was as between him and the shire the duty of the plaintiff alone to institute and superintend, the proper direction to the jury is that the plaintiff cannot recover against the shire."
53 These cases are illustrations of the principle that the failure to eliminate a risk that is reasonably foreseeable and preventable is not necessarily negligence; the central question is whether a defendant's failure to eliminate the relevant risk showed a want of reasonable care: Tame v State of New South Wales (2002) 211 CLR 317 at [98] - [99] per McHugh J. That calls for a consideration of the magnitude of the risk, the
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- degree of probability of its occurrence and the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 per Mason J. This analysis is sometimes referred to as the "negligence calculus".
54 The trial Judge found that there was a very low risk of a farmer presenting undrained sheep for shearing. As the Judge noted, it was a very rare event in the experience of all the witnesses who gave evidence. Further, the trial Judge found that Mr Clarke was himself aware of all of the relevant information on which to make a decision as to whether to order the cessation of shearing. Mr Clarke's evidence was that he saw a mob of sheep arrive at lunchtime. They were on the gallop and were placed straight into the yards directly outside the shearing shed and were then put into the shearing shed and ultimately the catching pens. The sheep were very agitated and thrashing around. The accident occurred after he had shorn two or three wethers and seen the state of the catching pen.
55 For reasons discussed in detail below, the act of the appellants in presenting undrained sheep for shearing resulting in excessive excrement in the catching pens caused or contributed to Mr Clarke' injuries. The appellants created the risk. The risk of harm of the kind suffered was reasonably foreseeable, it being real and not far-fetched or fanciful.
56 Turning to the pleaded case against the employer, there was insufficient evidence (and no finding) on whether the employer caused or contributed to the supply of undrained sheep to the shearing shed. The employer's breach is said to be one of omission in failing to have in place a system that would, or should, result in the cessation of shearing operations in appropriate circumstances relating to the safety of members of the team. There is no challenge to the trial Judge's conclusion that it was not reasonable to expect the employer to directly supervise shearing operations in the shed. It was contended on behalf of Mr Clarke that the employer's non-delegable duty of care could not be discharged by silence or inaction and at least required the employer to expressly place someone, with that person's concurrence, in charge with authority to supervise the team; to make that clear to the team so they knew who to turn to when a safety issue arose; and to make that clear to the employer's customer (the farmer) or instruct the employee in charge to do so. It was not suggested that Mr Clarke was an inappropriate person to be in charge. Mr Steicke's unchallenged evidence was that he knew Mr Clarke to be an experienced, competent and safe shearer. On this formulation of the duty and in light
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- of that evidence, any risk of Mr Clarke failing to fulfil his duty would not render the employer's conduct unreasonable.
57 As already noted, the trial Judge found there was an express agreement between the employer and Mr Clarke that Mr Clarke be in charge of the shearing team in the field. It follows Mr Clarke must have known of and accepted his position, a conclusion that is consistent with Dr Suthers' evidence. Assuming the duty extended to informing the members of the team and the farmer that Mr Clarke was in charge, any breach of those duties did not cause the loss in this case.
58 It is a plaintiff's responsibility to plead the specific failures said to constitute a breach of the duty to provide a safe system of work. The only specific failure relied on by Mr Clarke was that already referred to. Otherwise, he relies on the events as they occurred to support an inference of an unsafe system. There are obstacles to that approach. Firstly, when the issue is systemic failure, the facts are equivocal. Secondly, fairness requires the specific system failure to be pleaded so its reasonableness can be tested: McLean's Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423.
59 I am satisfied that the employer discharged its personal duty to take reasonable care in the circumstances by appointing Mr Clarke to be in charge of the shearing team in the field with the power and duty to direct cessation of the shearing works in such circumstances as occurred.
60 If the employer is not personally liable for Mr Clarke's injuries, it cannot be vicariously liable for them as a result of Mr Clarke's negligent conduct. If another employee had been injured as a result of Mr Clarke's failure to act, the employer would be vicariously (but not personally) liable to the injured employee. The appellants and Mr Clarke contended in the appeal that the employer should have been held to be vicariously liable for the allegedly negligent conduct of Mr Hogg. It seems to me this issue is outside the scope of the pleadings, however the point was not taken and I will deal with it. Mr Hogg placed the wethers in the catching pen when he knew that they were urinating and excreting excessively and that the floors of the catching pens were becoming hazardous. He did not inform anyone in the team of the condition of the sheep or the floors. His explanation for his conduct was that he was acting in accordance with his duties and that the situation was obvious to those with the experience to assess the magnitude of the problem and the authority to order the cessation of work. It is clear that he was performing his duties and did not have the authority to cease work. At best his breach was of a failure to
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- warn or to obtain instructions. However, the failure was not causative of the loss as Mr Clarke was aware of all relevant matters.
61 For these reasons, I am satisfied the trial Judge did not err in concluding that the employer was not liable in negligence to Mr Clarke.
Balance of the Appeal
62 I have dealt with the appellants' contentions (in grounds 2 and 5) that the trial Judge erred in failing to find the employer personally and vicariously liable in negligence to Mr Clarke. The appellants abandoned a ground of appeal relating to the assessment of loss of superannuation benefits. However, the appellants and Mr Clarke's counsel agreed that the trial Judge made an error in calculating the past loss of superannuation benefits, the correct amount being $11,069, less 10 per cent.
63 The remaining grounds of appeal (1, 3 and 4) challenge the correctness of the finding of negligence against them. Ground 1 is to the effect that the trial Judge erred in failing to consider or determine the "critical issue" of who was in control of the shearing operations within the shearing shed. That issue is said to be determinative of "who was the negligent party". According to the appellants, had that issue been determined, the employer would have been held solely liable because it was aware of the dangers, was in control of the shearing operation and the failure of its authorised employees to suspend shearing was the "direct and real cause" of Mr Clarke's injuries.
64 In ground 3, the appellants complain that the trial Judge erred in failing to consider the different standards of care owed to Mr Clarke by the appellants and the employer. Finally, it is contended in ground 4 that "the nature of the standard of care owed by the Appellants to [Mr Clarke] was not such as to extend to risks of which he was aware and willingly assumed by him".
65 The grounds of appeal fail to clearly identify by reference to tortious principles why the trial Judge erred in finding the appellants liable in negligence. Liability in negligence is established if the appellants owed a duty of care to Mr Clarke, they breached that duty and there was a causal connection between the damage sustained and the breach of duty (and the damage is not too remote from the breach): Tame v State of New South Wales at [88].
66 Reasonable foreseeability of damage of the kind suffered is an element in establishing both the duty of care and its breach: Tame v State
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- of New South Wales (supra); Wyong Shire Council v Shirt (supra) at 47; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317. That requirement is satisfied if the risk of harm is not far-fetched or fanciful but real: Dovuro Pty Ltd v Wilkins (supra) at [60] per Gummow J.
67 Reasonableness is the test for the imposition of a duty of care; in particular, it is the reasonableness of a requirement that a person should have certain persons or interests in contemplation that determines the existence of a duty of care: Tame (supra) at [9] per Gleeson CJ.
68 In this case the appellants and the employer had entered into a shearing contract. The trial Judge found that it was the appellants' responsibility to fill the yards adjacent to the shearing shed with the sheep to be shorn and to ensure there were sufficient sheep to enable the shearing work to proceed continuously. It was also the appellants' responsibility to ensure the sheep had been drained. Those findings were not challenged. The alleged negligent conduct of the appellants was an act, not an omission; it was the presentation of undrained sheep to the holding yards for shearing. There is no finding (and no evidence to support it) that Mr Hogg requested undrained sheep. The appellants were aware of the existence of, and the safety rationale for, the industry practice requiring drained sheep to be presented for shearing. On the unchallenged findings, the purpose and intention of the appellants in supplying the undrained sheep was that they be used to enable shearing to continue without interruption. It is clear they were aware of the basis on which members of the shearing team were remunerated.
69 On these findings, it was reasonably foreseeable that the presentation of undrained sheep for shearing would result in members of the shearing team, in particular the shearers, shearing sheep in unsafe conditions and thereby suffering personal injury.
70 The statement of claim pleads material facts that are capable of giving rise to a duty of care, however, there is no express plea of the duty or its scope. Perhaps understandably, the question of duty of care is not expressly referred to in the appellants' defence. My interpretation of the grounds of appeal and the oral submissions is that they concern the negligence calculus rather than the existence of a duty of care.
71 Having regard to the findings to which I have referred, I am satisfied that the appellants had a duty to take reasonable care for the safety of members of the shearing team. The duty is formulated at a relatively high level of abstraction. This seems appropriate when the scope of the duty
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- was not addressed in the pleadings or at first instance or by appellants in the appeal. To define the duty in terms of the breach (that is, a duty not to present undrained sheep for shearing or a formulation to similar effect) is to sidestep the negligence calculus. That task is to determine what a reasonable person in the position of a defendant would or should do by way of response to the risk in question. The standard imposed can and does vary, precisely because the test is by reference to the reasonable person in the position of the particular defendant. The appellants rely on the fact that in ordinary circumstances, an employer owes a higher standard of care to an employee than does the person who engages the employer. That is a correct statement of the general position; the higher standard usually imposed on an employer (albeit short of strict liability) is based on the expectation that an employer has control over the employee's conditions of work and can effectively dictate and direct its workforce. It is unnecessary for the purposes of this appeal to determine the extent to which these expectations apply to a team of itinerant, self-motivated workers.
72 In support of their contention that they were not in breach of any duty, the appellants rely on the fact that the employer had control of the shearing and the shearing shed, was under a duty to provide a safe system of work, had knowledge (by their agents Mr Clarke and Mr Hogg) of all relevant matters relating to the risk and that Mr Clarke had the power and duty to order the cessation of shearing. Accepting all those factors to be correct, they are relevant to the negligence calculus, in particular, in determining the magnitude of the risk and the probability of its occurrence. However, an error of principle intrudes into the appellants' contention on causation. They submit that the conduct of the employer and their agents was the "direct and real cause" of Mr Clarke's injuries. I understand the contention to be that their conduct was the sole or effective cause, an approach that is inconsistent with the common law principles of causation in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 517 - 518 as recently explained by the High Court in Andar Transport Pty Ltd v Brambles Ltd (supra) at [38] - [44]. The fact that intervention by Mr Hogg or Mr Clarke might have averted the accident does not prevent a finding of liability in negligence against the appellants.
73 To return to the negligence calculus. A reasonable person in the appellants' position would have foreseen that their conduct involved a risk of personal injury to Mr Clarke. The question is what a reasonable person in the appellants' position would do by way of response to the risk. There was an obvious risk that the undrained and agitated wethers presented by the appellants would be put into the shearing shed in that condition and
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- shorn. Indeed, the appellants supplied those sheep for shearing in order to meet a shortfall due to their miscalculation. Their purpose and intention in supplying the undrained sheep was that they be used to enable shearing to continue without interruption. The appellants' position as the client and their expectations implicit in their conduct in presenting the sheep would create pressure which, in combination with their knowledge of the basis of the shearing team's remuneration, presents a significant risk. The risk could have been entirely averted if the appellants had acknowledged their inability to provide undrained sheep for shearing that day and not presented them. The appellants' conduct satisfies both the factual and legal elements of the test of causation. The factors relied on by the appellants do not, individually or collectively, render the appellants' conduct reasonable. I am satisfied the trial Judge did not err in finding the appellants liable in negligence. I would dismiss grounds of appeal 1, 3 and 4.
74 The appellant also complains that the trial Judge did not expressly deal with its third party notice against the employer alleging that Mr Clarke's injuries were caused or contributed to by the employer's negligence or breach of the contract of employment. The negligence and breach of contract claims against the employer stand or fall together. It follows from the trial Judge's conclusion that the employer was not negligent that the appellants' claims the subject of the third party notice must fail.
75 The appellants' final ground of appeal (ground 6) challenges the apportionment of liability as between themselves and Mr Clarke. Mr Clarke also challenges the finding. It is convenient to deal with both together.
Contributory Negligence
76 The legal principles are not in dispute. A defendant will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury: Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37.
77 In applying the standard of care to contributory negligence on the part of an employee, the Courts have taken into account a variety of factors which may excuse an employee's inattention to his personal safety. As between an employer and employee, the question is whether the prevailing conditions caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection that is excusable in the circumstances
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- because it is not incompatible with the conduct of a prudent and reasonable man (Sungravure Pty Ltd v Meani (supra) at 37 per Windeyer J.
78 The Court must make an apportionment that is just and equitable as between a plaintiff and a defendant which requires an assessment of the whole conduct of each negligent party in relation to the circumstances of the accident and a comparison of their respective culpability. However, much latitude must be allowed to the trial Judge in determining what apportionment is just and equitable and such a finding is not lightly reviewed: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Pennington v Norris (1956) 96 CLR 10.
79 It was contended on behalf of Mr Clarke that a finding of contributory negligence against him ought not to have been made. The submission is made on the assumption that the employer had failed to appoint a person to be in charge of the shearing team with express power to direct the cessation of work in appropriate circumstances. I have rejected that claim. Reliance is also placed on what was described as Mr Clarke's "subjective view" that his reputation would be damaged and his future employment prospects jeopardised if he had ceased work.
80 The question of contributory negligence is determined by reference to the response of a reasonable of a man in the position of the defendant. The test is objective, not subjective. However, views held on reasonable grounds may be relevant to the assessment of the respective degree of culpability in determining apportionment. The trial Judge preferred the evidence of Mr Steicke to that of Mr Clarke. Mr Steicke's evidence as to the employment situation for shearers suggests Mr Clarke's view that his employment may be jeopardised was, if honestly held, misconceived.
81 The evidence establishes that not only was Mr Clarke aware of the risk, he also knew he should not run it, as indicated by his answer to the hypothetical question of what he would have done had he been the shearing contractor and that he continued shearing sheep notwithstanding the accident. Mr Clarke's conduct was not compatible with the conduct of a prudent and reasonable man. I go now to the apportionment.
82 The trial Judge placed significant emphasis on the fact that the appellants had an opportunity over a lengthy period of four or five hours to contemplate the consequences of their action, whereas Mr Clarke had a significantly shorter period and concluded that the appellants' negligence was a more substantial contributing cause to Mr Clarke's injury.
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83 There are other matters that impact on the balance of culpability. As I have already noted, the appellants were aware of the rationale for the requirement that sheep be drained before being presented for shearing and thus were aware of the consequences of processing undrained sheep through the shearing shed. I do not accept that there was no commercial benefit to the appellants in shearing continuing. The trial Judge's finding that it was the appellants' responsibility to fill the yards adjacent to the shed for the sheep to be shorn and to ensure there was sufficient sheep to enable the shearing work to proceed continuously may give rise to a claim for breach of an implied term of the shearing contract or an economic loss claim in tort by the members of the shearing team. However, it is unnecessary to decide those matters. The appellants created the risk and by their conduct placed pressure on the shearing team to proceed. Mr Clarke's failure was one of omission. In those circumstances and for the reasons given by the trial Judge, I am not persuaded that there is an error in the apportionment.
The Balance of the Cross-Appeal and Other Matters
84 Mr Clarke also challenges the assessment of future economic loss, in particular the finding by the trial Judge that there was little prospect of him continuing to work as a shearer beyond the age of 50. On this subject the trial Judge said at [131]:
"… it is my view that if the accident had not occurred it is unlikely that the plaintiff would have continued shearing until 65 years of age. Although there is no direct evidence as to the usual retirement age of shearers, the work is self-evidently of a very heavy nature which requires considerable strength and fitness. In the present instance there is also the strong probability that the plaintiff's habitual consumption of marijuana and alcohol combined with his pre-existing injuries would have brought about an earlier retirement than normal. Notwithstanding the plaintiff's obvious work ethic and his drive and determination to achieve financial success, it is my judgment that there was little prospect of him continuing to work as a shearer beyond the age of 50. There was also a considerable chance that he might have had to retire from shearing at an earlier age and perhaps continued to work as a wool classer. It may also be that the plaintiff would have been capable of continuing as a wool classer beyond the age of 50."
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85 The trial Judge then calculated the future loss of earning capacity on the basis of him working as a shearer to age 50. He made no reduction in respect of residual earning capacity because that was approximately equivalent to his pre-accident working capacity exclusive of his occupation as a shearer. He continued:
"There should nevertheless be an adjustment for contingencies which apart from the usual contingencies included a relatively high risk of retirement from shearing at an earlier age than 50. There was also the favourable contingency that there was some prospect of the plaintiff working beyond 50 as a wool classer. On balance I consider it reasonable to adjust the assessment by making an 8 per cent deduction for contingencies."
86 Mr Clarke contends there was no evidence on which to base a finding that he would have ceased working as a shearer by age 50. But for his injuries, it is said, he had the capacity to earn income as a wool classer, farmer or generally in the rural workforce to age 65. It is said the award for future loss of earning capacity and superannuation benefits should have been assessed to age 65 with an appropriate discount for contingencies.
87 The trial Judge found that Mr Clarke had regularly consumed marijuana over a period of at least 15 years and was prone to drinking excessive amounts of alcohol. He had suffered a number of injuries in the course of his career, including tendonitis in both hands, problems in his right knee during 1993 and 1994 which were ultimately resolved by way of surgery and a number of episodes of headaches and depression. He also crushed his right middle finger which resulted in its amputation in August 1994. The amputation was not entirely successful which led to further periods either off work or on light duties. However, he did not have any problems in performing shearing duties during the two or three-year period leading to the accident.
88 There is a rebuttable legal presumption that a male would work to age 65: Gardner Bros & Perrott (WA) Pty Ltd v Seat, unreported; FCt SCt of WA; Library No 7318; 12 October 1988 per Malcolm CJ. However, there was evidence in this case to displace the presumption, including Mr Clarke's problems with alcohol and marijuana use combined with the significant physical demands associated with shearing. In addition to those demands, there is the attendant risk of (non-negligently caused) injury of which Mr Black gave evidence. As he notes, shearers drag backwards over 10 tonnes of live kicking animals each working day.
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- It was reasonably open on the evidence to find that Mr Clarke would have ceased working as a shearer by age 50. Further, there is no challenge to the finding that Mr Clarke's residual earning capacity was appropriately equivalent to his pre-accident working capacity exclusive of his capacity as a shearer. In these circumstances, I am not satisfied the Judge erred in the approach he took to the calculation of future economic loss.
89 Now to miscellaneous matters. Mr Clarke's claim against the employer was in negligence and contract. It is contended in the cross-appeal that the trial Judge erred in concluding the employer was not negligent and not in breach of the contract of employment. Concurrent liability in negligence and contract is pursued because the defence of contributory negligence does not apply to contractual claims: Astley v Austrust Ltd (1999) 197 CLR 1.
90 If this Court had concluded that the employer was negligent, then subject to a notice of contention in relation to items (2) and (3), the following issues would arise for determination:
(1) Mr Clarke's contention that the trial Judge erred in failing to make a finding of breach of an implied term of the contract of employment and awarding damages without any reduction for contributory negligence;
(2) The employer's counterclaim against Mr Clarke for breach of his contract of employment and negligence (an attempt to counter the effect of Astley v Austrust);
(3) The employer's notice of contribution against the appellants claiming breach of an implied term of the shearing contract and negligence.
91 The employer did not file a notice of contention. However, the Court called for written submissions from the parties on the relevant matters. For the sake of completeness, I propose to deal with these matters on the basis (contrary to my conclusions) that the employer was negligent in failing to expressly appoint a person to be in charge of the shearing team with express power to direct the cessation of work in appropriate circumstances.
Mr Clarke's Contractual Claim
92 The trial Judge concluded (at [68]) that Mr Clarke's tortious and contractual claims against the employer stood or fell together. There is no
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- challenge to the correctness of the trial Judge's approach. In particular, the employer does not challenge the correctness of Mr Clarke's contentions that the employer owed a concurrent tortious and contractual duty to take reasonable care for the safety of its employees (see Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 at [46]); that damage suffered by reason of a breach of contract cannot be reduced on account of contributory negligence, even where the defendant is concurrently liable in tort and in contract; and that if the employer was liable in negligence, he was also to Mr Clarke in contract but for the entirety of his loss and damage without reduction for contributory negligence. In the absence of any challenge, the finding would be that if the employer was negligent in the ways contended for by Mr Clarke, the employer would also be in breach of the implied term of the contract and be entitled to damages without any reduction for contributory negligence.
The Counterclaim
93 The situation in relation to the counterclaim is entirely unsatisfactory. It appears the trial was conducted by the parties without any, or any meaningful, reference to the contractual issues pleaded in the defence and counterclaim. The trial Judge did not give them separate consideration. The employer did not, in a notice of contention or in written submissions, refer to issues that would (or may) arise from the defence and counterclaim if the challenge to the dismissal of the negligence claim against the employer was upheld. Counsel for the employer referred to some of them in response to a question from this Court. The written submissions subsequently filed inadequately address the controversial legal and policy issues that arise from attempts to circumvent the effect of the decision of the High Court in Astley v Austrust (supra). Some of them have been considered by the Queensland Court of Appeal in Wylie v The ANI Corporation Ltd [2002] 1 Qd R 320 and Jones v Persal & Co [2000] QCA 386. In this case the pleaded duty is novel and has not previously been ruled on. Further, complex issues of causation and the measure of damages arise; for example, the employer seeks to recover workers' compensation payments made to the employee under the Workers' Compensation and Rehabilitation Act 1981 (WA) which raises statutory construction and policy issues.
94 However, I am satisfied that these issues do not have to be determined in this case. The relevant pleading is in pars 5 to 11 inclusive of the amended defence and counterclaim. The employer pleads that it was a term of the contract of service that Mr Clarke was in charge of the shearing team (par 7.1) and "would take reasonable precautions and care
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- for his own safety" (par 7.2). (In the submissions filed after the hearing of the appeal the employer relies on an unpleaded implied term that an employee must use reasonable care and skill in carrying out the contract of service, being the term implied in a contract of service in Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555). The employer then pleads that in his capacity as the shearer in charge, Mr Clarke had the duty and power to cease shearing activity if there was, or potential for, breach of any of the implied terms of the contract of service relied on by Mr Clarke in his statement of claim (par 9). Subject to proof of various matters, it is pleaded that Mr Clarke was in breach of the contract of service by failing to cease the shearing (par 10). The employer's breach of contract defence and counterclaim is independent of, and unrelated to, the contributory negligence plea. Thus, the employer's breach of contract set-off against Mr Clarke is dependent on a finding that Mr Clarke was in charge of the shearing team and, as such, had the power and duty to cease shearing. However, the set-off and counterclaim only arises for determination if the employer is negligent because he failed to appoint a person to be in charge and the analysis is based on that assumption. Accordingly, the counterclaim must fail.
95 If I have taken an unduly narrow view of the pleadings, I would in any event decline to proceed further. If the employer wished to contend that, in the event the appeal or cross-appeal was relevantly allowed, the trial Judge had erred in failing to make findings on the counterclaim and notice of contention, it should have filed a notice under O 63 r 9 of the Supreme Court Rules. In the absence of such a notice, leave is required to apply for the relief sought. As the issues were all but ignored until raised by this Court at the very end of the hearing of the appeal and very superficial consideration is given to the issues in the employer's subsequent written submissions, I would refuse leave.
Employer's Contribution Claim Against Appellants
96 The employer pleads that it was an implied term of the shearing contract that the appellants would provide the means by which the employer could satisfy the implied terms of the contract of service between Mr Clarke and the employer (to provide a safe place of work, a safe system of work and exercise reasonable care for Mr Clarke's safety while he was working). The provision of the undrained sheep by the appellants is pleaded as the breach of the implied term. The employer also alleges that the accident was caused by the appellants' negligence.
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97 The only relief sought is a contribution to any damages, interest and costs the employer is ordered to pay to Mr Clarke, a contribution to the costs of defending Mr Clarke's action in the contribution proceedings and interest for any amount to which the employer is entitled. There is no difficulty with the contribution claim for the appellants' negligence, although there are no submissions from any party as to the appropriate apportionment. The employer's written submissions filed after the hearing of the appeal only address the claim for breach of the shearing contract. Those submissions consist of bare assertions unsupported by analysis or authority. They also assert that, contrary to the pleading, the measure of the employer's damage is the amount that would put them in the position they would otherwise be in if the breach of contract had not occurred, including its liability for workers' compensation.
98 There was very little evidence at trial relating to the shearing contract. None is referred to or relied on in the employer's submissions. In appropriate circumstances there may be a relevant overlap in the nature and scope of the tortious duties of care owed to the employee of an independent contractor: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. However, my preliminary view is that on the material before the trial Judge I would not conclude that the appellants' contractual duty of care to the employer is in the same terms as the duty owed by the employer to Mr Clarke (or the appellants' duty of care to Mr Clarke). However, it is unnecessary to rule on the matter. Contested issues of causation and measure of damages also arise. The employer's written submissions ignore them. In their written submissions in reply the appellants strenuously oppose any grant of leave to raise these matters at this late stage. They also raise issues of waiver and election. I am of the view that, in these circumstances, this Court should not attempt to deal with the issues at this stage.
Conclusion
99 I would dismiss the appeal and the cross-appeal.
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