Motor Accidents Insurance Board v Lester - [2016] TASSC 2

[2016] TASSC 2

COURT: SUPREME COURT OF TASMANIA

CITATION: Motor Accidents Insurance Board v Lester [2016] TASSC 2

PARTIES:  MOTOR ACCIDENTS INSURANCE BOARD
  v
  LESTER, Michael Geoffrey

LESTER, Lexie Louise
CIRCULAR HEAD FENCING PTY LTD
(ACN 009 575 437)

FILE NO:  745/2009
DELIVERED ON:  18 January 2016
DELIVERED AT:  Hobart
HEARING DATES:  22, 23, 24, 27, 28, 29, 30 April and 1 May 2015
JUDGMENT OF:  Tennent J

CATCHWORDS:

Torts – Negligence – Road accident cases – Liability of persons having charge of animals – Driver injured in collision with steers on a highway which had escaped from adjoining farming property – Motor Accidents Insurance Board paid scheduled benefits – Proceedings by Board pursuant to Motor Accidents (Liabilities and Compensation) Act 1973, s 28C, to recover scheduled benefits paid and to be paid from non-indemnifiable persons.

Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6; Seltsman Pty Limited v McGuiness (2000) 49 NSWLR 262; Betts v Whittingslow (1945) 71 CLR 637, referred to.
Motor Accidents (Liabilities and Compensation) Act1973 (Tas), s 28C.
Aust Dig Torts [101]

REPRESENTATION:

Counsel:
             Plaintiff:  P Jackson SC
             First and Second Defendants:     L Sealy SC
             Third Defendant:  K Read SC
Solicitors:
             Plaintiff:  Murdoch Clarke
             First and Second Defendants:     Hunt & Hunt
             Third Defendant:  Wallace Wilkinson

Judgment Number: [2016] TASSC 2
Number of paragraphs: 194

Serial No 2/2016
File No 745/2009

MOTOR ACCIDENTS INSURANCE BOARD v MICHAEL GEOFFREY LESTER and LEXIE LOUISE LESTER and
CIRCULAR HEAD FENCING PTY LTD (ACN 009 575 437)

REASONS FOR JUDGMENT TENNENT J

18 January 2016

At approximately 2 o'clock on the morning of 26 June 2008, 18 year old Mitchel House ("House") was driving along the Bass Highway from his home at Wiltshire to work in Smithton. When he was about eight kilometres the Smithton side of the Stanley turnoff, he collided with a steer or steers wandering on the highway ("the accident"). He suffered what must have been catastrophic injuries because he is now unable to speak or communicate in any meaningful way and has no apparent memory of the accident or anything before it. He is now 25 years old and totally dependent on his parents.
Following the accident, the Motor Accidents Insurance Board ("MAIB") commenced to pay scheduled benefits to or for the benefit of House pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"). By virtue of the Act, s 28C, the MAIB became entitled to recover scheduled benefits it had to pay to or for the benefit of House from certain people. Section 28C relevantly provided:
"(2)    The Board may recover from a non-indemnifiable person a scheduled benefit paid to any other person in respect of personal injury if the circumstances of the motor accident which resulted in the personal injury –
(a)created a liability in the non-indemnifiable person to pay damages; or
(b)would have created such a liability in the non-indemnifiable person if the motor accident had occurred in this State.
(3)     The Board has, in respect of scheduled benefits paid in respect of personal injury, the same rights of contribution and indemnity against a non-indemnifiable person as would have vested in an indemnifiable person by the Wrongs Act 1954 if –
(a)the circumstances of the motor accident which resulted in the personal injury also created liability in both the non-indemnifiable person and the indemnifiable person to pay damages or would have created such a liability if the motor accident had occurred in this State; and
(b)the scheduled benefits had been damages paid by the indemnifiable person towards meeting the liability; and
(c)     the liability had arisen as the result of a tort.
(4)     If under section 4 of the Wrongs Act 1954 a person is given a right to reduced damages in respect of a personal injury, the amount recoverable by the Board under subsection (2) or (3) in respect of that personal injury is reduced in the same proportion.
(5)     If –
(a)the circumstances of a motor accident which resulted in personal injury to a person also create, otherwise than in tort, a liability in another person to pay damages in respect of that injury; and
(b)section 4 of the Wrongs Act 1954 would have applied so as to reduce the damages payable had that liability arisen in tort –
the amount recoverable by the Board under subsection (2) or (3) in respect of that personal injury is reduced in the same proportion."
In 2009, the MAIB commenced an action against the first and second defendants, Michael and Lexie Lester ("the Lesters"). The Lesters owned a farming property, known as Deep Creek, which adjoined the Bass Highway at the place where the accident occurred. That property was used for fattening cattle. There was no dispute that the Lesters were non-indemnifiable persons for the purpose of the Act. The MAIB asserted that:
·     House collided with a steer found wandering along the Bass Highway.
·     the steer belonged to the Lesters.
·     the steer had escaped along with a number of other steers from the Lesters' property.
·     the steers had escaped through a particular gate in the perimeter fencing of the property (which for the purpose of the trial was called "the escape gate" which term I will continue to use).
·     as a result of the collision with the steer, House suffered personal injuries.
·     the accident was caused by the negligence of the Lesters.
·     the circumstances of the accident, which resulted in injury to House, created a liability in the Lesters to pay damages to House.
·     the MAIB was entitled to recover the scheduled benefits it had paid and would continue to pay in respect of House's injuries.
Facing in the direction of Smithton coming from Stanley, the Lesters' property was to the left of the Bass Highway. It was bordered at the Smithton end by Backline Road (for the purpose of this judgment I have referred to the road as Backline Road even though at the point of the junction with the Bass Highway it is actually known as Reservoir Road) which intersected with the Bass Highway. The Lesters had, in October 2007, engaged a contractor to replace a portion of fencing along that part of their boundary which bordered Backline Road including new gates. That work was done by Circular Head Fencing Pty Ltd ("the third defendant"). After the action was commenced against them by the MAIB, the Lesters issued a third party notice to the third defendant asserting that its negligent work on a gate had allowed the steers to escape, and hence caused or contributed to the accident. The third defendant was subsequently made a defendant in the action. There was no dispute that the third defendant was a non-indemnifiable person for the purpose of the Act.
The MAIB asserted in respect of the third defendant that:
·     it had, in about October 2007, done perimeter fencing work for the Lesters along part of their property which bordered Backline Road.
·     that work included the erection of the escape gate.
·     the third defendant owed a duty to motorists, "to perform the work with all proper care and skill such as would ensure that that part of the perimeter fencing of the property upon which the work was undertaken would contain cattle on the property and prevent their escape therefrom".
·     the third defendant undertook that work negligently.
·     as a result of that negligence, a large number of steers escaped from the property via the gate.
·     the accident occurred as a result of that escape.
·     the circumstances of the accident which resulted in injury to House created a liability in the third defendant to pay damages to House.
·     the MAIB was entitled to recover the scheduled benefits it had paid and would continue to pay in respect of House's injuries.
Notices of contribution have been given as between the defendants. There are also allegations of contributory negligence on the part of House.
An order was made that the issue of liability be determined prior to any other issue, and it is with that issue, that these reasons are concerned.
By reference to the Act, there is no dispute in this case that:
· each of the defendants is a non-indemnifiable person within the meaning of the Act.
· if the circumstances of the accident create a liability in any one or more of them to pay damages to House, the MAIB is entitled to recover scheduled benefits paid to or in respect of House from any defendant found to be so liable.
To succeed against any defendant, the MAIB must prove that:
·     that defendant owed a duty of care to House.
·     by a negligent act or acts, that defendant breached that duty.
·     any breach of duty so found caused or contributed to the accident.

The duty of care

As to the Lesters, it was conceded by their counsel that they owed a duty to House, and to the users of roads adjacent to their property, to take reasonable care to prevent the escape of cattle from their property on to such adjacent roads. It was also conceded that duty existed in respect of both the construction and maintenance of the boundary fences of their property, that the standard of care was what would be expected of a reasonable person, and that the duty was non-delegable. That last matter was qualified by the submission that, in respect of any latent defects or other defects that could not be detected by reasonable inspection, the Lesters were entitled to be indemnified by the third defendant (if of course it was found that cattle escaped from the Lesters' property through part of the fence constructed by the third defendant).
As to the third defendant, in par 18 of the statement of claim of the MAIB, the MAIB asserted:
"In undertaking the work, the Third Defendant owed a duty to, inter alia, motorists including the Plaintiff, to perform the work with all proper care and skill such as would ensure that that part of the perimeter fencing of the property upon which work was undertaken would contain cattle on the property and prevent their escape therefrom."
The third defendant denied that assertion.
In the course of his opening and closing addresses, counsel for the third defendant made no direct submission about any duty of care it might have owed in the manner done by counsel for the Lesters. However, in his submissions, counsel said that his client accepted that there was a foreseeable risk that cattle might escape if the fence and gate were not reasonably fit for purpose, it took all reasonable steps to prevent that risk, and, if it was found that a reasonable person in the position of his client would have acted differently to his client, any departure from the actions of a reasonable man was not causative of House's injuries. He also said that his client's case was put that way because when the fence and gates were installed they were of a standard that satisfied the extent of the duty that his client owed to road users such as House, and to suggest otherwise was to impose a duty the content and extent of which was based on what he described as impermissible hindsight.

Breach of duty of care

The MAIB asserted as against the Lesters 11 particulars of negligence, that is, 11 reasons why it said that acts or omissions on the part of the Lesters demonstrated a want of reasonable care on their part. The particulars were contained in a document entitled "Revised Particulars of Negligence under Paragraph 12 of the Amended Statement of Claim" and were as follows:
"The First and Second Defendants were negligent in:-
(a) Failing to secure the gate adequately or at all;
(b)Securing the opening end of the gate to the strainer post ('the strainer post') by means only of a loosely fitting pin, chain, ring and gudgeon device ('the securing mechanism');
(c)With the pin of the securing mechanism positioned as it was, failing to position the gudgeon so that it pointed directly at Backline Road (ie, at 90 degrees to Backline Road);
(d)Failing to use, as part of the securing mechanism, a sufficient length of chain and in particular a length of chain sufficient to enable the pin to be positioned as it was and the gudgeon to be fixed in a position where it pointed directly at Backline Road (ie, at 90 degrees to Backline Road);
(e)Failing to secure the opening end of the gate to the strainer post with a chain linked by a locked padlock;
(f)Failing to ensure that the approach to the gate from inside the property was protected by an electric current so positioned and of sufficient voltage that cattle in the paddock would be deterred from approaching the gate more closely;
(g)Using, or supplying for use by the Third Defendant, or permitting or requiring the Third Defendant, to use, as part of the securing mechanism a gudgeon pin that was threadbare or substantially so, with the result that it was not securely fastened or capable of being securely fastened into the strainer post;
(h)Failing to inspect, or monitor, or check, sufficiently or at all, the condition of the securing mechanism and in particular the gudgeon in order to ensure the integrity and sufficiency of the securing mechanism;
(i)Failing to inspect, or monitor, or check sufficiently or at all, maintenance of vertical alignment of the strainer post at the opening end of the gate in order to ensure the integrity and sufficiency of the securing mechanism;
(j)Failing to ensure that the strainer post at the opening end of the gate had not moved from its initial alignment, vertical to the ground, as the result of strain placed on it by the fencing wire or otherwise;
(k)Failing to use or supply for use by the Third Defendant, or require the Third Defendant to use, or ensure that the Third Defendant used, a 'Franklin pack', rather than the securing mechanism, for the purpose of securing the gate."
The MAIB also asserted a number of particulars of negligence in respect of the third defendant. These were contained in a document entitled "Revised Particulars of Negligence of the Third Defendant under paragraph 19 of the amended Statement of Claim" and were as follows:
"(a)     Failing to secure the gate adequately or at all;
(b)Installing the gate so that the opening end of the gate was to be secured to the strainer post by means only of the securing mechanism;
(c)Failing to make provision for the opening end of the gate to be secured to the strainer post with a chain linked by a locked padlock;
(d)With the pin of the securing mechanism positioned as it was, failing to position the gudgeon so that it pointed directly at Backline Road (ie at 90 degrees to Backline Road);
(e)Failing to use as part of the securing mechanism a sufficient length of chain and in particular a length of chian sufficient to enable the pin to be positioned where it was and the gudgeon to be fixed in a position where it pointed directly at Backline Road (ie at 90 degrees to Backline Road);
(f)Installing as part of the securing mechanism a gudgeon that was threadbare or substantially so with the result that it was not securely fastened or capable of being securely fastened into the strainer post;
(g)Failing to undertake the work so that the approach to the gate from inside the property was protected by an electric current so positioned and of sufficient voltage that cattle in the paddock would be deterred from approaching the gate more closely;
(h)Failing to advise the First and/or Second Defendants that the materials they had supplied and/or required him to use for the securing mechanism were inadequate for that purpose in that:-
(i)        the gudgeon was threadbare or substantially so; and/or
(ii)the gudgeon was so substantially threadbare that it was not securely fastened or capable of being securely fastened to the strainer post; and/or
(iii)the length of chain provided was too short to enable the gudgeon and the pin to which the gudgeon was attached by chain to be placed in proper alignment to one another;
(iv)the length of chain provided was too short to enable the pin to be positioned where it was and the gudgeon to be fixed in a position where it pointed directly at Backline Road (i.e., at 90 degrees to Backline Road); and/or
(v)there was no chain and padlock to enable the opening end of the gate to be secured to the strainer post by means of a chain linked by a locked padlock;
(i)Failing to request and/or require the First and/or Second Defendants to provide materials for use for the securing mechanism that were appropriate for use as such and in particular failing to request and/or require:-
(i)        a gudgeon that was new or near new;
(ii)a length of chain of sufficient length to enable the gudgeon and the pin to which the gudgeon was attached by chain to be placed in proper alignment to one another;
(iii)a length of chain of sufficient length to enable the pin to be positioned where it was and the gudgeon to be fixed in a position where it pointed directly at Backline Road (i.e., at 90 degrees to Backline Road);
(iv)a chain and padlock to enable the opening end of the gate to be secured to the strainer post by means of a chain linked by a locked padlock;
(v)materials which would enable the gate and/or the approach to the gate from inside the property to be protected by an electric current so positioned and of sufficient voltage that cattle in the paddock would be deterred from approaching the gate more closely;
(j)Failing to advise the First and/or Second Defendants that the materials they supplied and/or required him to use as part of the work would mean that the securing mechanism was inadequate for the purpose of keeping the gate shut at all times when it was intended that the gate be shut."

Factual matters not in dispute

There was no dispute from the point of view of the Lesters that:
·     they owned the property described as the Deep Creek property at the relevant time.
·     that property was used primarily to fatten cattle.
·     at about 2.05am on 26 June 2008, House was driving a motor vehicle along the Bass Highway towards Smithton and slightly east of the junction of the highway and Backline Road.
·     House's vehicle collided with a steer.
·     House suffered personal injury as a result of the accident, and the MAIB became liable to pay scheduled benefits.
·     that steer belonged to the Lesters and had strayed onto the Bass Highway from the Deep Creek property along with a number of other steers,
·     the steer that House hit had accessed the Bass Highway by escaping from the Deep Creek property onto Backline Road, and had then travelled along Backline Road to the Bass Highway.
·     after the collision, the escape gate (in the boundary fence of the Deep Creek property along the Backline Road about 500 metres from the junction of the Bass Highway and Backline Road) was found to be open.
·     in or about October 2007, a portion of the boundary fence of the Deep Creek property which included that gate had been replaced by the Lesters, and that the work had been done by the third defendant.
From the point of view of the third defendant, there was no dispute that:
·     at about 2.05am on 26 June 2008, House was driving a motor vehicle along the Bass Highway towards Smithton and slightly east of the junction of the highway and Backline Road.
·     House's vehicle collided with a steer.
·     House suffered personal injury as a result of the accident, and the MAIB became liable to pay scheduled benefits.
·     in or about October 2007, a portion of the boundary fence of the Deep Creek property which included a gate had been replaced by the Lesters, and that the work had been done by the third defendant.
To succeed against the Lesters, the MAIB needs to prove:
·     that the steer or steers with which House collided belonged to the Lesters.
·     the steer or steers escaped from the Lesters' property.
·     the steer or steers escaped through the escape gate.
·     that some want of reasonable care on the part of the Lesters in relation to that gate contributed to the escape through that gate, and
·     the want of reasonable care was causative of House's injuries.

As to the third defendant, the MAIB needs to prove:
·     that the steer or steers with which House collided belonged to the Lesters.
·     the steer or steers escaped from the Lesters' property.
·     the steer or steers escaped through the escape gate.
·     that that gate opened as a result of a want of reasonable care on the part of the third defendant when it installed the gate.
·     the want of reasonable care was causative of House's injuries.

The area where the accident occurred

For the purpose of identifying approximately where on the Bass Highway the accident occurred and relevant landmarks, counsel for the MAIB tendered an aerial map (P1). There was also a view held at the commencement of the trial. There was no dispute that, by reference to that map, the Lesters' Deep Creek property was all that area of land to the left of the highway facing Smithton bordered by the Bass Highway and Backline Road. A local farmer, Greg Ralston, identified a number of landmarks and other relevant positions on the map. At the very top of the map on the right hand side of the highway facing Smithton, he identified his house. Proceeding down the highway towards Smithton, Mr Ralston identified another building on the right of the highway, which he said was his barn. On the map, he identified the entrance to his barn off the highway, and said that, about opposite that entrance on the other side of the highway, there was a gate leading into paddocks on the Lesters' property. Further down the highway again, he identified another house on the right as being that of his brother, Brad. In between Mr Ralston's barn and his brother's house, but on the left of the highway adjacent to the Lesters' property, there was a pull over area on the side of the road.
In the bottom left hand corner of the map, there was an intersection. That was the intersection of the Bass Highway and Backline Road. Facing Smithton, to the right of the intersection there was a barn or shed identified as belonging to the Lesters. After the turn into Backline Road, and after some distance along that road, Mr Ralston identified the position of the escape gate. Inside that gate was a dirt track, more or less at right angles to Backline Road. Further along Backline Road, Mr Ralston identified a barn and stockyards on the left hand side on the Lesters' property. Beyond that, appearing on the bottom right hand corner of the map, Mr Ralston identified another house as being that where Maurice Ling's sister lived. He also said Maurice Ling lived just beyond that but you could not see it on the map.
Mr Ralston identified the approximate position of where the accident scene was as being just past his brother's house closer to the junction with Backline Road.

Evidence relating to the collision

House was not called as a witness on the trial because of his injuries. There was no other witness to the actual collision. There was, however, other evidence about events which led up to and generally occurred at about the same time.
House's father told the Court that House worked at a business in Smithton and was due to start work at 2am on 26 June 2008. He left the family home at Wiltshire at close to 2am. He was driving his blue Subaru Impreza car. Mr House heard his son drive away from home that morning, and did not notice anything unusual. There was no evidence about the route House might have taken. I infer however that it was not thought to be unusual for him to have been driving on the Bass Highway in the area where the accident occurred.
Two other accidents involving vehicles colliding with cattle occurred on the same stretch of the Bass Highway that night, at or about the same time as that involving House. Tendered to the Court were notices of accident forms given to the MAIB in relation to all three accidents. I infer from the Notice of Accident given to the MAIB by Clinton Ollington (P13) that the first accident in time was that involving House, the second was that involving Mr Ollington, and the third was that involving Mr Nielson. Mr Ollington was driving a fully laden log truck from Smithton towards Burnie. Just past the intersection with Backline Road, he was distracted by some light which it seems may have been House's car. He then looked back to the highway, and collided with steers on the highway. He stopped his vehicle and got out and saw lights coming towards him. That was Mr Nielson. He was driving a utility from Burnie to Smithton. He collided with a steer. The steer he hit went up over his bonnet, across the top of the cab of his utility and landed in the tray of his utility. He can only be described as having been incredibly lucky the steer did not land and remain on the cab of his utility. A photograph of his utility post-accident shows a very large beast in the tray of his vehicle. The beast is dark in colour.
Photographs taken of the car driven by House and the road area around it show animals of similar colour and size to that in the tray of Mr Nielson's utility, lying apparently dead on the side of the road.

Events post-accident

Mr Ralston went to bed about 10pm on 25 June. He was woken at about 2am by a telephone call from his brother Brad. As a result of that call, he dressed quickly and went out to his Toyota Hilux utility. He drove out onto the highway and turned towards Smithton. He had only driven about 50 or 60 metres when he came across a mob of cattle on the road coming towards him, going "flat out". He identified his position as being just the Stanley side of his barn, and the position of the cattle as being just near his gate to that area.
To try to stop the cattle, he used his horn and then got out of his vehicle. He waved his arms around and managed to stop the cattle and turn them around just before his gateway. They headed back along the fence-line in the direction of Smithton. He opened the gate into the Lesters' property (the one approximately opposite the entrance to his barn area), and then got back into his vehicle. He drove to the Smithton side of the mob and drove them up to and through the Lesters' gate. There were 30 or 40 cattle in this mob. He got all except two through the gate. Those two jumped the fence just before the gate and, in doing so, damaged the top wire.
Mr Ralston then got back into his vehicle and began driving towards Smithton. Just the Smithton side of the pull over area, he came across Mr Nielson in his vehicle in the middle of the road with a steer on the back of it. Mr Ralston's brother Brad was there as well. He also saw a man he now knows as Mr Ollington walking down the road from the direction of a log truck. At that point, the only cattle he had seen were those he herded into the Lesters' property and the one in the back of Mr Nielson's utility.
Mr Ralston then got back into his utility and drove further down the highway in the direction of Smithton. As he did so he saw other cattle walking down the side of the road which appeared to be injured. He also saw at least two animals apparently dead, others on the ground apparently unable to walk and ones moving clearly with broken legs. He came upon an ambulance just the Stanley side of the junction of the Bass Highway and Backline Road. He then turned his vehicle around and shone his lights on a blue Subaru vehicle in the drain on the side of the road. He helped the ambulance officers get the occupant of the vehicle, House, out. He remained helping for about 10 minutes, by which time a police officer arrived. That officer attempted to shoot one of the injured animals with a handgun. Mr Ralston got into his vehicle and drove home to get his gun.
Mr Ralston collected his gun and came back out onto the highway on his 4WD quad bike. As he came down the road he destroyed about five injured cattle. He did not destroy all of them because he said:
"I thought I could probably herd them into the paddock and Mike and Lexie could probably get them into the abattoirs in the morning."
He walked those injured cattle towards Stanley, and about opposite his brother's place, there was another gate into the Lesters' property. He walked these cattle into the Lesters' property through that gate. He then went back to where the ambulance was. He then removed the ear tags from dead cattle and gave them to police. Also at the scene by this time was the local council animal controller, Simon Crisp.
While he was still where the ambulance was, Mr Ralston noticed a car turn off the highway into Backline Road. As the vehicle reached the straight part of that road, he saw cattle in its headlights. He and his brother got onto the quad bike and drove to Backline Road. He drove along that road and stopped at the escape gate. He identified the gate area where he stopped in photograph 11 in P2. The gate was open out towards the road and the area was muddy, virtually as it appeared in that photograph. That was a photograph taken on 27 June 2008. Mr Ralston saw signs in the mud that, "there'd been a lot of cattle out that gate". He said the cattle had flattened the lush grass on the side of the road, and you could see a lot of mud coming out from the gateway in the direction of the Bass Highway.
Mr Ralston found no cattle on Backline Road between the Bass Highway and the escape gate. He did see some further along Backline Road heading away from the intersection with the Bass Highway.
Mr Ralston was shown photographs numbered 3 and 4 in exhibit P3. They were photographs taken on 16 September 2008. He said the gudgeon pin and chain were not as shown in those photographs when he found the gate open. The gudgeon pin and chain were hanging down towards the ground with the end loop of the chain still over the head of the gudgeon pin. He pushed the gate back through the gate opening into the paddock, but left it open, intending to try to get the cattle on the road back through the gate.
After stopping at the escape gate, Mr Ralston got back on his quadbike. There were about 40 or 50 cattle running down the middle of the road. He drove through the mob to get to the other side of them to slow them down and turn them round. Once he got through the mob, he stopped and turned his bike across the road. His brother was on the bike with him, and they both got off and slowed the cattle down and slowly turned them. The cattle got past the Lesters' barn and stockyard to a point on the road beyond what is shown in the aerial map (P1) before they could do that. Mr Ralston then drove the cattle back towards the Lesters' barn and stock yards, intending to herd them in there. However, he could not handle them, and they continued down the road.
Mr Ralston then drove round in front of the mob. His brother, Mr Crisp and Mr Ling by that stage were in Mr Ling's truck and brought up the rear. At one point, some of the cattle went through or over the fence into the Lesters' property breaking some of the wires. Mr Ralston got the rest of the mob into the Lesters' property through the escape gate he had left open. Mr Ralston marked on the aerial map where some of the cattle went through the fence. After Mr Ralston got the cattle in through the gate, he shut it and wound some wire around the fence post and through the gate to keep it shut. He said:
"I put the gudgeon back in the hole, I pushed the gudgeon back in the hole and I knew that wouldn't hold so I wrapped the wire around like in one of those photos.
…
I could push it (the gudgeon) in and push back out again. It was loose, it was worn."
Mr Ralston saw two holes in the fence post. The chain with the gudgeon pin would only reach one, which was the one he pushed it into. He observed no damage to the gate, the fence post where the latching mechanism was, or the hole into which he pushed the gudgeon. He also said there was, "absolutely no sign of instability or looseness in the strainer post. If it had been knocked loose it would have been necessary to pull the wire off and re-strain it and also to re-strut the post."
Between when he was called by his brother and when he wired up the escape gate, Mr Ralston noticed no rain, thunder or lightning.

Ownership of the steers on the road and where they came from

The Lesters admitted on the pleadings that the steer with which House collided belonged to them, and had strayed from their Deep Creek property. The third defendant did not admit those facts.
The only direct evidence as to the ownership of the steers on the Bass Highway came from Matthew Lester. He went to the scene of the accident about 4am on 26 June 2008. At that stage, he saw no live cattle on the road. He went back at daylight. He then saw between eight and ten dead cattle in the drain on the side of the highway. He was questioned by counsel for the MAIB about the dead cattle he saw. He was asked if the cattle were his, and he replied, "I believe they were". He was pressed, and agreed they were. He also agreed that he did not see any dead cattle that morning which were not his. When he was cross-examined by counsel for the third defendant, the following exchange occurred:
"Yes. Or was it your knowledge that you found that all – that the steers were either dead or back into the paddock?.....Sorry just to clarify do you mean when I went down in the morning, at four o'clock in the morning?
Yes, yes?.....At four o'clock in the morning I didn't really speak to a police officer. We had a drive around ourself [sic] looking if there was any cattle still out and we couldn't find any.
Right and then you went home?.....No.
No then you went to Ralston's place sorry yes?.....Then I went and spoke to Greg Ralston.
And then what did you do?.....After we spoke to Greg Ralston we went home.
Yes?.....And then by daylight I drove back down to deal with the dead animals and the fencing.
Right and when you came back what time was that, daylight would be 7am or thereabouts?.....Correct.
Yeah, right. Now you looked at the cattle on the side of the road, the steers that were dead, correct?.....Yes.
But of course you don't know each of your steers personally do you?.....No I don't."
Evidence was sought to be led from a police officer who attended the scene on the night and who took possession of ear tags taken from steers which were killed. He gave evidence he made an enquiry of the local council to establish ownership of the steers by reference to the ear tags. The council officer he dealt with, Simon Crisp, who had also attended the scene that night, is now deceased. The police officer was asked about the result of his enquiry. An objection to his giving that evidence was made, and the issue was not pursued. The police officer did not know what had become of the ear tags.
The only other person present on the night whose evidence might shed light on who owned the steers on the road was Mr Ralston. When he arrived on the scene he saw dead steers, steers badly injured and live steers still on the road. He herded the live steers he found on the Bass Highway and Backline Road into the Lesters' property after the accident. He did not identify the steers directly as belonging to the Lesters. However, he clearly thought they did. Both he and another local farmer commented in their evidence that they were initially concerned that the steers on the road might have been theirs. It must be inferred that they concluded the steers were not theirs.
Counsel for the third defendant submitted that the evidence did not prove that the Lesters owned the steer with which House collided. He submitted that, while Matthew Lester agreed that he owned the steers, he then said that, without the ear tags, he was not able to say that the dead steers were his or not. Counsel also submitted that the ear tags were not in evidence and, although it appears they were matched with council records, there was no evidence of the result. With respect, counsel's submissions in this regard can only be described as disingenuous. I accept what Matthew Lester actually said. He also said immediately prior to the evidence to which counsel referred, "I think we lost 10 cattle altogether. I think there were eight dead ones on the side of the road and two that had to be put down later on." He also said, after he said the words to which counsel referred, that he did not see any dead cattle that were not his. Matthew Lester was clearly an integral part of the Lester family. He managed the Lester family properties on behalf of his parents who, it seems, were the actual owners. The questioning of Mathew Lester by counsel for the MAIB was clearly directed to establishing the cattle in question came from the Lesters' property as opposed to being from somewhere else.
Counsel for the third defendant also referred to exhibit D3-2. That was a print-out supplied by Tasmania Police of various incident reports. No explanation was provided to the Court about what it actually meant. It was submitted that the second and last pages recorded a call in relation to four black cows on the road at Bass Highway, Stanley, and that the owner was with the reporting officer. The significance of this was said to be that it was unlikely to be the Lesters' cattle which were the subject of the report, but it was evidence that cattle from some other property were on the Bass Highway this particular night.
As far as I am able to tell from the print outs, a call was made to police at about 5.09am on 26 June 2008, some three hours after the collision involving House, to the effect that four black cows were on the Bass Highway at Stanley. The Stanley turn-off from the Bass Highway was some eight kilometres away from where the House collision occurred. At 5.16am, it was reported that a uniformed officer from Smithton was present at the scene with the owner and the incident report was completed at 5.19am. The description of where the incident occurred was some distance from the scene of the collision, and it was three hours after it. Further, when the steers were seen by Mr Ralston this night, they were seen the Smithton side of his house and heading towards Stanley. That was at just after 2am.
Counsel for the third defendant submitted in relation to this evidence that:
"The inference is that these cattle were from a property other than the Lesters. In these circumstances the evidence could not induce in the mind of the fact-finder, an actual persuasion that the fact (that the steers were owned by the first and second defendants) does (or at the relevant time did) exist as there is a real chance that other cattle were on the road in that vicinity that night and the plaintiff on notice of the issue and with a means of proving the fact did not attempt to bring to this court the evidence that was capable of proving the issue."
With respect, I reject that submission. The beasts referred to in the police report were four black cows. I accept this demonstrates that other animals were on the Bass Highway that night. The Bass Highway is a very long road and much of it is bordered by farming properties. However, the incident report referred to refers to cows not steers which were many kilometres away from the scene of this accident. The four black cows were intercepted some three hours after the House collision. I do not accept, given all the evidence, that there is any real chance those four black cows had anything to do with the events which occurred adjacent to the Deep Creek property or, absent any other evidence of beasts on the Bass Highway that night, there was a any real chance of any animals other than those from the Lesters' property being anywhere near the point of the House collision.
In the words of counsel for the third defendant, there is induced in my mind an actual persuasion that the steers found on the Bass Highway and Backline Road on the morning of 26 June 2008 belonged to the Lesters, had escaped from their property that night, and one of them was the steer with which House collided.

From where on the Lesters' property did the cattle escape?

The unchallenged evidence of Mr Ralston was that, shortly after the accident, he found the escape gate standing open. His evidence was also that he opened two gates in the perimeter fence of the Lesters' property adjacent to the Bass Highway to get cattle into the property after the accident. He also said that he either saw or heard damage being caused in the perimeter fence adjacent to the Bass Highway and also on Backline Road by cattle attempting to get into the Lesters' property when he was trying to herd them into that property.

Mr Ralston described the area around the road side of the escape gate. He described the muddy area and flattened grass outside the gate. He described mud being carried from the area of the gate down onto the road. The evidence was also that a large number of the cattle were moving along the Bass Highway from the direction of Smithton, that is the direction of the intersection of the highway and Backline Road. Cattle were also, of course, found on Backline Road between the escape gate and the Ling's house further up Backline Road
Matthew Lester arrived at the scene of the accident with his mother at about 4.20am. They drove around looking for escaped cattle, and did not find any. They spent 15 to 20 minutes checking out the perimeter of the fencing, and then drove to Mr Ralston's house and spoke to him. At some point, it was unclear whether it occurred during this 15 to 20 minute check of the perimeter fencing or later when he went back at daylight, Matthew Lester identified two broken fence wires. One was in the fence adjacent to the Bass Highway near the gate where Mr Ralston herded some cattle into the Lesters' property, and the other was in the fence on Backline Road. That was at a spot which coincided with where Mr Ralston said cattle went over the fence as he was trying to herd them on that road. Matthew Lester gave no evidence about seeing any other breaks in the perimeter fence on either the Bass Highway or Backline Road.
Having regard to the above evidence, the inevitable conclusion, in my view, and the only reasonable one open, is that the steers from the Lesters' property found on the Bass Highway and Backline Road escaped through the gate found open by Mr Ralston, that is the gate described as the escape gate.

Weather on the night of 25/26 June 2008 and impact on cattle of external events

Various witnesses were asked about weather conditions on this night because of the contention raised by the defendants that the cattle found on the Bass Highway and Backline Road may have been "spooked" by weather conditions, and possibly stampeded out of the escape gate.
Mark Ling was a farmer from Forrest. His property was about two kilometres from the "escape gate". It did not adjoin the Deep Creek property on Backline Road. He remembered an electrical storm and hearing loud thunder on the night of 25/26 June 2008. He said he was in bed and awakened by the thunder. He clearly had no precise idea when it was on this night he heard this storm. He had never personally seen cattle spooked by a storm. He had observed damage to internal, not external, fencing following thunderstorms and violent weather. He said "where cattle have gone through during the night". However, that can only be his assumption that any such damage was caused by cattle because he had not seen it happen.
Isaac Korpershoek was a dairy farmer who farmed at Forrest. The escape gate was approximately 10 kilometres from his farm. He was asked to cast his mind back to the night of 25 June 2008 and recall anything about the weather. He said the weather was atrocious, as in thundery, lightning and driving rain. He could not remember if that weather was occurring before or after he went to bed. As a result of the weather that night he got up and checked his calves which were about three months old. He was asked why, and he responded that they were young and scared and he knew they were going to do something. As it turned, out they did not.
However, when Mr Korpershoek heard the next morning about the accident he went to check on young stock he had agisted "on the other side of the highway from where I am". He was asked if he meant "on the northern side, or Bass Strait side of the Bass Highway", and he agreed. Unfortunately, that does not tell me where that stock was relative to the accident scene. Mr Korpershoek said this stock consisted of 70 to 80 calves and around 100 heifers, the calves being about three months old and the heifers being about 15 months old. He found they had broken through multiple electric wires. His evidence spoke of internal fencing. This stock was dairy cattle.
Evidence was also given by Dr Michael Pook, described as a retired or semi-retired research scientist. He was probably better known as a weather presenter for the ABC. In April 2015, he was asked to prepare an assessment of the meteorological conditions in the vicinity of the Bass Highway/Backline Road intersection between 6pm on 25 June 2008 and 6am the next day. For this purpose, Dr Pook had regard to a report from the Bureau of Meteorology dated 29 October 2009. That became exhibit D1-4. He also had regard to a second Bureau of Meteorology report dated 13 February 2015 with "synoptic and cloud observations and radar images" which became exhibit D1-6, and a final report of the Bureau dated 19 March 2015 which contained high resolution satellite images. That became D1-5.
Dr Pook also examined a lightning incident archive search report for the 24 hour period commencing 7pm on 25 June 2008 from a company called Global Position and Tracking Systems Propriety Limited. He understood that company provided data to the Bureau of Meteorology on contract. That report became exhibit D1-7. Dr Pook also had regard to other material identified as extracts of manual synoptic analyses from the Australian Bureau of Meteorology Analysis Chart Archive, some radiosonde traces (in effect data from sets of instruments carried by weather balloons) for Melbourne and Hobart airports from the University of Wyoming, and precipitation data from several reporting stations in the Smithton area. That material was not tendered. Dr Pook also prepared a report dated 10 April 2015 which became exhibit D1-8.
On page 2 of his report Dr Pook said:
"The determination of meteorological conditions at a point location at a particular time is a difficult undertaking without dedicated instrumentation and observations by a qualified observer. Even when observations from neighbouring sites are available it is well known that there can be large differences in meteorological elements because of the effects of topography, aspect and exposure. These problems relate particularly to variables such as wind speed and direction, visibility, and the type and intensity of precipitation.
However, the well-established techniques of synoptic analysis can be employed to identify organised structures such as air masses and fronts that have properties which are expressed over relatively large areas. The careful tracking of these features with conventional observations coupled with remotely sensed data enables analysts to make informed inferences about weather conditions in a localised area within a given time period.
In this analysis, I have examined the certified data provided by the Australian Bureau of Meteorology and additionally, I have extracted numerical model data in order to reconstruct time-steps in the evolution of the meteorological situation on the night of 25 June 2008 and early morning of 26 June 2006 [sic]."
Following an analysis of the material he examined, Dr Pook described the weather conditions near Smithton on the night of 25 June 2008 and early morning of 26 June 2008 as extreme. There was an active cold front crossing the area and a wind gust recorded at Smithton of 67km/h at 11.04pm on 25 June. There were no recorded reports of lightning strikes in the period to 3am on 26 June. There was rain, but it seems it would not have been constant over that night and, in simple terms, it would not have been raining at 2am on 26 June. When he was cross-examined, Dr Pook agreed that the rain which did fall was confined to a short period of intense rainfall between 12.50am and 1.10am. He would describe the weather in that period as extreme weather rather than extreme over the whole night.
Dr Pook conceded that there was no weather data taken from the Deep Creek property. He was asked about observations of thunder. He said there was no thunder recorded at Wynyard airport in the 24 hours to midnight on 25 June, but there was during the 24 hours to midnight on 26 June. He noted that Wynyard airport actually experienced a thunderstorm just before 6am on 26 June. He was also asked about the condition of the Bass Highway. He agreed that because of earlier rain it might have been wet but that there would be no problem with visibility.
A police officer on duty from Smithton until about 10.30pm on 25 June, Sergeant Walters, said the weather was stormy while she was in Forrest on the evening of 25 June and then returned to Smithton but she could not recall any lightning.
A second officer who gave evidence actually attended the scene of the accident. He was on general patrol in the Smithton/Circular Head area between about 9pm and midnight on 25 June. He said it was quite windy and there was lightning and some thunderstorms. He could not be sure if he saw lightning more than once. He went home at midnight and was called out to the accident at about 2am. He said it was not raining then and there was no lightning but it was still quite windy. He stayed at the scene of the accident between about 2.30am and 9am and recalls it starting to drizzle at about 4.40am to 5.30am.
Mr Nielson, the driver of the utility which hit a steer that night, completed a notice of accident which was exhibit P14. In that, he described the weather conditions as "wet, dark & windy. Lightning, thunder & windy…stormy". In his oral evidence, he said that he last experienced thunder and lightning on his journey that night at the top of "Oppenheim's Hill" east of Latrobe. By the time he got to Burnie, the weather was calm and cold. It was not raining and it was not windy. He described it as a complete contrast to Oppenheim's Hill
Evidence was also given by Professor Clive Phillips, a professor of animal welfare in the veterinary science faculty of the University of Queensland. His research interests included the welfare of farm, companion and captive wild animals, the contamination of the human food chain with heavy metals and animal and plant production in agricultural systems. Welfare aspects that he was particularly interested in included adequate nutrition, health, housing, transport and reproduction of such animals with an emphasis on cattle, sheep and captive wild animals. He prepared a report which, subject to amendments, became exhibit D1-10. His report was divided into four parts, the first and second being related to the behaviour of cattle relative to prevailing weather conditions, the third being related to preventing the accident, and the fourth being related to forcing the gate.
In the first and second parts, he summarised information he had been provided with as to weather activity on the night of the accident and a period before it and concluded that there were some major storm weather events in Tasmania on and around 26 June 2008, although he said wind and rainfall in the vicinity of the crash appeared to have been only moderately increased. He also said:
·     that stampedes in cattle were usually preceded by a specific threat and that there was usually evidence of a stampede from cattle hooves on the ground, particularly if it was wet.
·     cattle normally lie down at night and were more active during the day but accepted they must have been active this night to leave their paddock.
·     the large number of cattle in this case could have exerted considerable force on the fence if they had bunched up.
·     it was important that the cattle had only been in the paddock two to three days because that would mean they were less settled.
·     the movement of a fence post could be caused by a single steer forcefully rubbing itself on the post (depending on the extent of the anchorage of the fence post in the ground).
·     there appeared to be no protection in the form of hedges or trees where the cattle could have sheltered in inclement weather.
As to the third part, he said positioning an electric fence within a gate was not usual, and that gates were normally built to be cattle-proof. As to the fourth part, cattle could rub against a gate but would more usually rub against a solid item such as a post.
One area of the report, to which objection was taken, was a reference to what Professor Phillips had been told three local farmers had said about the weather on the night of the accident. I allowed the evidence to be admitted as it formed, in part, the basis for the witness's opinions. However, the farmers were not identified, and there was no opportunity to test precisely what they had said to ensure there was some proper basis for Professor Phillips' reliance upon the material.
In cross-examination, the reliability of Professor Phillips' report was questioned. He agreed that in fact he had prepared an earlier report, not put before the Court, in which he had expressed an opinion that a stampede of the cattle on the night of the accident was unlikely, and that he had then expressed a different opinion in the report before the Court. He also said:
·     he had never seen cattle spooked or stirred up by lightning or thunder.
·     he had witnessed cattle stampeding but not as a result of being stirred up by thunder and lightning.
·     he was the author of a book "Cattle Behaviour and Welfare". In that there was a discussion about cattle corralling in response to becoming stressed for a number of reasons, none of which included thunder and lightning.
·     he had not seen cattle damage fences or gates when stampeding.
·     that cattle might locate a gate in a fence that had no electrical charge and bunch up around it, could occur absent any stampede.
·     from his study and learning, he knew, "that lightning is believed to stimulate stampede in cattle. Even minor lighting stimuli such as the lighting of a match at night will potentially cause them to stampede. So when cattle are mustered and people are out with cattle at night, then potentially that can cause them to stampede, so they have to be very careful."

How did the escape gate come to be open?

The latching mechanism for the escape gate was one which involved a chain screwed at one end into a fence post with a loop at the other end. The chain was then threaded through the gate, and the looped end put over the gudgeon pin which was also screwed into the fence post.
When Mr Ralston found the escape gate open, he saw that chain still connected to the fence post at the unlooped end, but with the looped end hanging down with the gudgeon pin still held in the loop but having come out of the fence post. The only mechanism holding the gate shut was that latching mechanism. There was no secondary means by which the gate was secured. In the circumstances, there can be no other conclusion open but that the gate opened as a result of the gudgeon pin coming out of the fence post.
The issue is how that came to occur, and whether how it came to occur involved any want of reasonable care on the part of any of the defendants.

What caused the gudgeon pin to come out of the fence post?

It is necessary to go back in time and start with the installation of the gate and the fence it formed part of.

The installation of new fencing and gates on the Lesters' property

In or about October 2007, that is some eight months before the accident, the Lesters made a decision to upgrade a portion of the fencing on the Deep Creek property which ran along Backline Road. Both Matthew Lester and his father said the existing fencing had deteriorated and needed replacing. It was decided that the third defendant would be engaged to replace the fencing. That company was a contractor engaged in the business of fencing, and had previously done fencing work for the Lesters, about which they had no complaint. The representative of the third defendant with whom the Lesters dealt was Andrew Blizzard ("Blizzard"), and the dealings about the project were in effect between him and Matthew Lester. Prior to any work being done on the new fencing, Matthew Lester arranged for another contractor to come in with a back hoe to clear vegetation away from the area of the fence-line, and to take down the existing barbed wire fence. That old barbed wire was then buried in the ground, I infer, where it was pulled down. Matthew Lester met with Blizzard on site.
As manager of the property, Matthew Lester told Blizzard, he wanted a four-strand wire fence. The top and third wires were to be suitable to be electrified, and the other two would be normal. The strainer posts and other posts were to be treated pine. The Lesters were to supply all the materials, and the third defendant was to erect the fence and install the necessary gates. The Lesters had a shed which was on the side of the Bass Highway opposite the main Deep Creek property near the junction of the highway and Backline Road. In that shed, they kept a bucket which contained all sorts of bits of equipment, mainly pre-used, which were available to be used on the farm. The bucket, amongst other things, contained pieces of chain, gudgeon pins, hinges, effectively anything save posts that would be necessary to erect the fencing and necessary gates.
Matthew Lester told Blizzard of that bucket. There was a difference in the evidence of Matthew Lester and Blizzard about what was said about the use of the contents of the bucket. Matthew Lester said he told Blizzard that the contents of that bucket were available to him to use for the fencing and gates if they were suitable, while Blizzard said he was told to use items from the bucket. There is no dispute that Blizzard did, in fact, use the items from that bucket, and did not source any other items, either new or otherwise. Blizzard did not ask that any new items be purchased. He accepted that he could have if he thought new items were needed.
The fencing work undertaken by Blizzard started in Backline Road not far off the highway at a concrete strainer post already there. It continued along Backline Road to a point Blizzard identified on the aerial map which was P1. That point was in the bottom right hand corner of the map about where the slight bend appeared in Backline Road. The escape gate was about 500 metres from the concrete strainer in place near the highway end. Because the concrete strainer post was already in place, Blizzard's and his assistant's work started with putting the necessary strainer post in for the escape gate. When they went to put that strainer post in, they found a hole where it appeared the old strainer post had been pulled out. The hole was "fairly large in diameter". The new strainer had to go in that area because Matthew Lester had requested that the new gate be put back in the raised gravel area, and they could not move away from the surveyed line. They filled the existing hole with some gravel and dirt. The area was very wet, and so they used a tractor and post driver to ram the new strainer post in. The post used was one they found on site, although Blizzard did not believe it was the one from the original fence. It was however clearly a used post but one Blizzard was quite happy to use. He needed one of that size because of the size of the hole it was going into.
After that post was rammed in, Blizzard was not happy with how solid it was. He got another post and rammed that down beside the first one into more solid ground and then lashed the two together. After the timber strainer post went in, the first strand of wire being the non-electrified one at the bottom was put in first by running it from the concrete strainer near the highway up to and around the timber strainer post. That was then tensioned with a strainer, and that gave a straight line which allowed the smaller running posts to be put in down the line between the two strainer posts. They were put in eight to ten metres apart and rammed down to a selected height. The positions for the other three fence wires were then marked on those running posts.
After that process, what is called a strut or box assembly was assembled. That can be seen in the photograph which is numbered 4 in exhibit D3-1. The strut or box assembly is intended to provide extra strength to the strainer post. There was no need for one at the highway end of the fencing work because of the existence of the concrete strainer post. The strut assembly consisted of another post the same size as the strainer post with a smaller horizontal post to connect the two. The horizontal rail was connected by fibreglass rods to the uprights. A wire was then run diagonally between the top of the strut post and the bottom of the strainer post. That was tensioned to, in effect, protect the strainer post from the pressure put on it by wires running the length of the fence pulling against it. After the strut assembly was completed, the other three wires were installed along with insulators for the electrified wires. To the best of his knowledge, the only things Blizzard believed he may have supplied were staples and fibreglass rods. Everything else came out of the Lesters' shed.

The process was then repeated for the fence the Forrest side of the escape gate. The next section involved two strut assemblies at a spot described as the grassy knoll. The section after that took the fence to the Lesters' barn. After that, the last section went to the end of a cleared area. Photograph 8 in exhibit D3-1 showed a post with a metal cap. To the left of that was a strut assembly and that was work completed by Blizzard. To the right was old work not done by him. Blizzard also did other fencing on the other side of Backline Road for the Lesters.
Blizzard was not tasked with actually electrifying any of the fencing he installed. That part of the work was to be done by the Lesters. Blizzard referred to an example of work done for that purpose in photograph 7 in exhibit D3-1 which was a photograph of work done on the other side of the road where the fencing work started. He said the black cable coming up from underground and the black cable connecting the top and third wire down were not installed by him.
As to the escape gate, that was swung once the fencing had been done along Backline Road up to the Lesters' barn. That gate had been used before and was supplied by the Lesters. When Blizzard first saw it, it had what he described as a twist in it. It was not, he said, structurally weakened. It just looked like it had been hit by something. He straightened the twist out using his tractor.
The first step in installing the gate was to work out the height it needed to be so that it did not drag on the ground. Blizzard and his assistant lifted the gate into the required position, and then marked on the post on the Forrest side of the opening where the bottom hinge needed to go. They selected the post on the Forrest side of the opening to hang the gate off because Blizzard said that post, "went in a lot tighter and was a lot firmer than the other post that I had to peg and secure with another post, due to the old holes from the old strainers". The bottom and top hinges were sourced from the bucket in the Lesters' shed. Once the bottom hinge was on, the gate was positioned on that, and then a level used to get the gate in line with the post vertically. The top hinge was then positioned and tightened to ensure the gate was also horizontally level.
Once the gate was hinged on the post on the Forrest side of the gate opening, the work was then done on the latching mechanism on the other side of the opening. Blizzard said he sourced the chain and gudgeon he used out of the bucket in the Lesters' shed. He first drilled a hole in the post intended to accommodate the pin on the end of the chain. He had to use a drill bit which was smaller in diameter than the screw at the end of the chain. He inserted that screw end in the hole he drilled, banged it with a hammer a couple of times and then used a shifting spanner to wind the chain end into the post to the required depth. He then put the chain through the gate to measure where the gudgeon pin needed to go. He then drilled another hole, again using a drill bit smaller in diameter than that pin, inserted the screw end of the gudgeon pin in the hole, tapped it until the thread just held and then used a shifting spanner to screw it in the rest of the way. He screwed the gudgeon pin until the thread on it was buried and the chain latched over the gudgeon pin sufficiently. He said the gudgeon pin was screwed in, "probably would have been 50 mil or more I suppose". As to the tightness or otherwise of the fit of the chain, Blizzard said it was a snug fit but easy to take on and off. He had no concerns about the stability of either the gudgeon pin or the attachment pin in the post. He had no concerns about the fitness for purpose of any materials supplied by the Lesters.
One other matter raised with Blizzard was the placement of the gudgeon pin parallel to the gate, as opposed to the road front side of the fence post. He was asked if what he did was his normal practice. He said no, he would normally place it on the front simply to keep it out of the way of anything going through the gate. His usual practice had nothing to do with any strength issue. He did it the way he did on this job because of the shortness of the chain, and because of the position of the strainer post. None of the Lester family checked his work as it was being done, and he had no complaints after the work had been completed about the work.
All the above information came out in the course of Blizzard's evidence-in-chief. He was subsequently cross-examined by counsel for the MAIB, and then counsel for the Lesters. Blizzard was questioned by counsel for the MAIB about the gap between the strainer posts each side of the escape gate. He said his preferred option would have been to have them closer together. It was suggested that would have allowed him to set the gate up so it only opened inwards. He responded, "Yes well that could have been a fact." He was pressed again to acknowledge that was his preferred option and he said:
"Yes. I couldn't get it, I couldn't get it any closer because, as you probably observed there, it is gravel and there was a hole right next to the gravel. Now, you put a post right next to it and start hitting it with 380 kilos of weight, which is my post driver. That post will take the path of least resistance, which is that soft hole, and that's, that's where it went."
The following exchange then occurred:
"If you could have put the posts closer together, that would have been what you'd have done, in order to make sure the gate could only open inwards?.....Yes. That would have been, that would have been my, my choice, I suppose, but it just – I couldn't have – couldn't do it because of the old holes and where the gravel was. I couldn't shift the gate to the left. I couldn't shift it to the right. I had to put it back in the centre of that gravel.
When you say you had to, was that a judgment you made, or was that something the Lesters told you?.....No, that was, no, a judgement I made. Well, you start shifting that gate off centre and then you got – your gravel isn't in the middle of your gateway. It's off to one side and it's just – pointless then.
But you didn't ask Matthew or Michael Lester whether you might move it a short distance one way or the other?.....No, I couldn't see why."
Blizzard accepted that he could have bought a new gudgeon pin rather than use what was in the bucket, but could not see why when there were materials already there. He also accepted that he would usually prefer to use what was called a Franklin pack latching mechanism but had no discussion with the Lesters about the possibility of using that. He did not however say there was anything particularly better with a Franklin pack or that what he used was not a suitable type of mechanism.
Blizzard was shown the two gudgeon pins which were exhibits P26 and P28. He agreed P28 had substantially more thread on it than P26 but did not agree it was necessarily newer. He agreed P26 was much more worn than P28. He also said that he could not be one hundred percent sure P26 was the one he had used on the escape gate but could not point to anything about it which was different to the one he used. His recollection was that in the bucket in the Lesters' shed there was more than one gudgeon pin, and he chose the one which would do the job. He said there were ones in the bucket which were bent, and, he thought, unsuitable. He did not ever suggest to the Lesters that any materials provided were not good enough for the job.

The evidence of Michael Lester as to the use of the gate between October 2007 and the date of the accident

Michael Lester said he knew for sure he accessed the escape gate at least twice between when it was installed and the date of the accident, the last time being about a week before the accident. He went through the gate to check a water trough. He did that because he was going away, and knew that cattle were coming into the paddock while he was away. On this occasion, he drove up to the gate and opened it as normal. He said the chain was tight, there was not a lot of free play "but the pin came off as normal, there was no – no problem. The chain came off the mushroom head". He then corrected himself and said, "The chain came off the gudgeon pin as normal". He noticed nothing abnormal about the way in which the gate was swinging. He admitted he did not study the mechanism closely, but just used it. Everything with the gate appeared normal.
The other occasion he went through the gate was about a month before that. His recollection of the gate then was that it was the same as the other time.
Michael Lester arrived back at the farm a couple of days after the accident, and went to look at the gate and "the post". He said he noticed that the post was leaning backwards slightly from the gate. He was asked in which direction, and he said towards the highway. He did not actually identify which post he was talking about. He then said he went and looked at three or four other posts and they all appeared to be vertical.
Under cross-examination, Michael Lester said that an electrical stand-off wire had been installed on the escape gate since the accident. It cost a minimal amount to do that work. He knew there was a similar stand-off wire on a metal gate on the highway boundary, but could not remember when that was installed. He also said that the third defendant had done other fencing work for them, and they had never had any complaints. He agreed that he provided the "furniture" to latch the escape gate, and he was content it was put in in a workmanlike manner.

The evidence of Matthew Lester as to the installation and use of the gate and paddock prior to 26 June 2008

Matthew Lester was the farm manager for his parents' two properties, one of which was the Deep Creek property. He estimated that, over both properties, there was about 100 kilometres of fencing. The repair, maintenance, replacement and up-grading of that fencing was continual.
The cattle had been in the paddock with the escape gate for a couple of days prior to the accident. On the day of the accident, he was in the paddock feeding the cattle hay. He did not use the escape gate. He did however check that the electrified fence was working. Between when the fence was constructed and the day of the accident, he had accessed the paddock via the escape gate about five times. He noticed that there was not a lot of slack in the chain part of the securing mechanism but it certainly was not tight. Otherwise, there was nothing out of the ordinary about the latching mechanism or the posts, and he had no difficulty operating the mechanism.
He said he repaired the latching mechanism on the gate about a month after the accident. He lengthened the chain. He also drilled a new hole for a new pin further, about 90 degrees, around the post. The chain had more slack than it did before the accident.
Mr Lester also said he had observed damage to fencing in the aftermath of thunder and lightning. He saw smashed fences, broken wires and sometimes two or three damaged fences in a row, that is, internal fences. He was asked what the weather was when he went to bed (at another farm about 20 minutes away from the Deep Creek property) on the night before the accident. He said, "Well when I went to bed I can't recall. I believe probably fine, but I do remember thunder and lightning in the night and rain."
Under cross-examination, Mr Lester accepted that he really could not recall when he did the repair work on the latching mechanism. He also did not really know when cattle might have been in the paddock in the period prior to the cattle being put there a couple of days before the accident. He recalled feeding the cattle hay about mid-afternoon "down near the gate". He agreed there would have been sufficient feed there to last until the next day.
As to the bucket which contained parts, Mr Lester agreed it contained second- hand parts. He had no idea what, from there, Blizzard used. He agreed three new gudgeon pins would have cost about $20, and had Blizzard asked to buy new pins, he would not have objected. He also agreed that he would not have put anything in the bucket which was not fit for its designated purpose. That contradicted Blizzard's evidence that there were pins in the bucket which were bent and he, that is Blizzard, thought were not usable.
As to the use of electrical off-set wires, Mr Lester did not agree that gates were the weakest point in a boundary fence if they did not have an off-set wire. He agreed they were intended to keep cattle away from a gate and that cattle can rub on gates. He said they had a number of gates on their properties, some with and some without off-set wires. Off-set wires were sometimes used if there was no underground cabling for an otherwise electrified fence. He agreed it would have been a simple job to put an off-set wire on the escape gate but they simply did not consider it.
As to securing gates generally, Mr Lester agreed that they did not use "chains or padlocks" on any of their gates. It was suggested to him that that would be a more secure method of securing perimeter gates than the latching mechanism seen in the photographs shown to him, and he agreed it would, and that it was not an expensive option.

Evidence of the experts about the escape gate

David Armstrong

Mr Armstrong was an agricultural consultant. He had a Bachelor's degree in Agricultural Science. He had worked as an agricultural consultant in Tasmania since 1988. While he had no specific training or experience in erecting rural fencing and gates, he had dealt with the adequacy of fencing through his work and had, he said, probably opened and shut thousands of farm gates in the course of his work.
In December 2008, at the request of the MAIB's solicitors, Mr Armstrong inspected the escape gate. At that point, he understood the latching mechanism was the same as that in place at the time of the accident. He prepared a report dated 5 January 2009. Subject to some redactions, the report became exhibit P22. He concluded that cattle pushed against the gate which caused the gudgeon pin to come free from the post allowing the gate to swing open. He made the following observations on 29 December, namely:
·     the gudgeon pin was not tightly secure in the hole in the strainer post.
·     the thread on the gudgeon pin was poorly defined and so the pin was not secure in the hole in the fence post.
·     the pin was not fully inserted in the hole because the chain was too short and would not reach the gudgeon if it was fully screwed or pressed into the hole in the post. It may have been deliberately left in that position so that the ring could be removed over the cap.
·     the strainer post was probably pulled away from the gate, resulting in the gudgeon being left partly inserted in the hole.
He recommended that some testing be done which should be filmed. He was asked to do that. Mr Armstrong went back to the gate for that purpose with an associate on 24 January 2009. His supplementary report dated 27 January became exhibit P23, and the disc containing the video footage of what the two men did on 24 January became exhibit P24. What Mr Armstrong and his associate did with the gate on 24 January 2009 could hardly be termed a scientific experiment. He effectively conducted two tests. The first involved a jerking of the gate with some force a number of times. The gudgeon pin remained in place. The second involved a gentle wobbling of the gate. The gudgeon pin fell out of the hole in the fence post under this action. There was no attempt to scientifically measure the level of force needed to disengage the gudgeon pin from the hole in the fence post. What the video recording of the testing did show, however, was how easily the gudgeon pin came out of the hole, and how easily it could be pushed back in.
Mr Armstrong was asked to make a further inspection of the gate to determine whether the strainer posts beside the gate had moved. He carried out a further inspection on 28 February 2009 and submitted a further report dated 3 March 2009. Photograph 2 in that report shows the left side strainer post (the latching mechanism side) appears to be leaning at an angle to the gate as opposed to parallel vertically to it. Mr Armstrong took measurements which showed that posts both sides were leaning away from the gate. There was also a gap between the left strainer post and the side of the hole in which it was placed.
In the course of his evidence, Mr Armstrong was asked to look at what was then MFIA. That was a gudgeon pin which had been welded onto a piece of metal. Mr Armstrong identified the gudgeon pin (not the piece of metal to which it had been welded) as that which he saw in the escape gate on his inspection on 29 December 2008. It became exhibit P26.

Noel Carroll

Mr Carroll was a structural engineer with the firm of pitt&sherry. At some stage, either late in 2013 or at the beginning of 2014, he was instructed by the solicitors for the MAIB to undertake a structural engineering appraisal of the latching mechanism used on the escape gate. He prepared a report dated 23 April 2014 and, subject to some amendments, that report became exhibit P29. Mr Carroll stated in that report that he was initially briefed that the original gudgeon pin/latch hook had been removed from the gate post after the accident, and it was unavailable. However, he was then told that the solicitors for the Lesters had retrieved two gudgeon pins from the Lesters' farm, and one of those might have been the one which was in the fence post at the time of the accident. He attended the office of those solicitors and photographed one of the gudgeon pins which he said, "bears a remarkable similarity to the 'gudgeon pin' appearing in the photographs forming part of the report by David Armstrong dated 5 January 2009 with photos dated 29 December 2008 … I am convinced the pin that I inspected recently is almost certainly the same pin that was removed after the accident".
Mr Carroll prepared a second report dated 14 November 2014. Subject to some amendments, that report became exhibit P30. In that report, Mr Carroll commented upon another report prepared by Ms Tia Gaffney, a mechanical and forensic engineer, dated 3 March 2014.
For the purpose of each of his reports, Mr Carroll measured the diameter of the hole into which the gudgeon pin had been inserted. In the first, he measured it at approximately 13 to 14 millimetres, and, in the second, at approximately 13 to 14½ millimetres. He said the difference between the two was he thought he took more care the second time around. He also measured the depth of the hole. He agreed the hole at its entrance was not completely circular. Apart from that sort of measurement, he did not conduct any tests on the gate or otherwise. He was asked about the thread on the gudgeon pin he inspected and measured, and said the thread was internal to the outer surface of the pin.

Tia Gaffney

Ms Gaffney was a mechanical and forensic engineer with Delta-V Experts. At the request of the solicitors for the insurer of the third defendant, she prepared a report dated 3 March 2014. She was not called by counsel for the third defendant, and he did not seek to tender her report. However, it was tendered by counsel for the MAIB, but only against the third defendant. It became exhibit P33. Ms Gaffney gave no oral evidence and, of course, was not cross-examined about anything in her report.
According to her report, Ms Gaffney did not inspect the escape gate until 2014. The latching mechanism had, by that date, been altered. She had available to her Mr Armstrong's reports, including the photographs contained in it, the report of Professor Phillips, and a proof of evidence of Mr Ralston dated 11 October 2011. Her conclusions were based on that material and certain computer modelling. She also had regard to reports of others which were not before the Court. Her view was that the testing and calculations she conducted suggested that, if the gudgeon pin were assumed to be rigidly attached (she described that as the best case scenario), the force required to fail the chain link was approximately 199kg. To break the chain, a 600kg cow would have to apply a pushing force equal to one-third of its mass. A cow determined to escape could have exerted that amount of force. She also concluded that a cow or cows running at the gate were likely to create sufficient force and energy to break open the gate chain link even if the gudgeon pin was rigidly attached, regardless of whether the pin was mounted parallel to the gate or perpendicular to it. Of course, there was no evidence the chain had been broken.

Photograph 4 in Mr Armstrong's report shows the gudgeon pin out of the fence post, and the threaded portion of it. That thread is internal, in that the grooves which form the thread are inside the outer surface of the pin. There is what appears to be rust on the thread. Mr Armstrong, at the time he took his photographs, observed that the thread was smooth and slightly discoloured with rust. He was able to pull the gudgeon pin out of the fence post.
I accept that the securing device and gudgeon pin seen by Mr Armstrong on 29 December 2008 were the same as those at the time of this accident. I do so because:
·     when Mr Armstrong inspected the gate in December the wire which Mr Ralston used to wrap around the post and through the gate to secure it after the accident was still there. Had the securing mechanism been replaced by then it is reasonable to infer that wire would no longer be required.
·     Mr Matthew Lester was completely unconvincing in his evidence during which he tried to suggest the securing mechanism was replaced about a month after the accident and I do not accept that suggestion.
·     the gudgeon pin in place in December 2008 was clearly one affected by prior use in that its thread was smooth and it showed signs of rust. It was not one likely to have been used to replace one it was suggested was deficient.
·     the evidence of Blizzard and Mr Armstrong clearly suggests that the device seen in December 2008 was that installed by Blizzard in October 2007.
·     there was no evidence to suggest that the gudgeon pin or any part of the securing mechanism was altered between October 2007 and June 2008.
Counsel for the MAIB submitted that the evidence was clear that the length of the chain in the securing mechanism would not allow the loop at the end of it to be put over the gudgeon pin if the pin was screwed into the fence post, such that no thread was exposed. The photographs of Mr Armstrong show that the chain is taut in circumstances where the gudgeon pin is not screwed wholly into the fencepost (that is to the extent where no thread is showing). The evidence of Mr Ralston was that he put the gudgeon pin back in the hole, the only hole the chain would allow him to reach was that in which it is shown in photograph 3, when he pushed the gudgeon pin in he knew it would not hold because he had no difficulty pushing it in, he could push the pin in and pull it out again, it was loose and worn and he pushed it as hard as he could to where it was shown.
The evidence of Blizzard as to the circumstances in which he installed the securing mechanism was that he screwed the gudgeon pin in until the thread was buried. Having regard to the evidence of Mr Ralston and Mr Armstrong, and the photographs of the assembly post-accident, either Blizzard was not truthful about what he did, or something had happened to the mechanism or the post to which it was attached which, combined with whatever he did do, prevented the gudgeon pin from staying in the fence post.
There was evidence to the effect that the strainer posts, post-accident, were leaning away from vertical, whereas Blizzard said he ensured they were vertical by reference to the gate. If for some reason the strainer post to which the securing mechanism was attached was to have been pushed or pulled away from the vertical, that action would have placed pressure on the mechanism because of the shortness of the chain. The gudgeon pin may have been pulled out by that action, leaving the mechanism in the situation in which it was seen by Mr Ralston and later photographed.
Counsel for the MAIB relied on the report of Ms Gaffney, which had been tendered only against the third defendant. At page 33 of that report, Ms Gaffney extracted the photographs which are numbered 3 and 4 in Mr Armstrong's report of 5 January 2009. By reference to those photographs, she described the gudgeon pin thread profile parameters as atypical. A diagram below the photographs in her report depicted what she described as "Typical thread profile notation". The difference between the thread there shown and that in the photographs is obvious. The thread projection in the diagram is external to the shank of the pin, whereas that in the photographs is the opposite. An examination of the exhibits which were P26 and P28 shows that the thread profile on P26 is the same as that in the photographs, while the profile on P28 is the same as that in the diagram.
At page 34 of her report, Ms Gaffney said:
"Although the subject gudgeon is threaded, the threads are recessed such that their external diameter is flush with the shank diameter. With this design, the threads do virtually nil to restrict the pull-out force as they are not oriented in a way to provide a reaction force against the wood. In terms of withdrawal force, the gudgeon is not accurately modelled as a threaded screw."
At page 35, Ms Gaffney concluded:
"5 Conclusions
The opinions expressed are based on the author's experience and training as a mechanical and forensic engineer, and are supported by the available evidence, the site inspection, the calculations and testing performed. In relation to the specific questions posed, the author's opinions are as follows:
1In the absence of post-incident microscopic testing, it is not possible to scientifically determine the strength of the gudgeon pin within the post as it existed on the date of incident. If microscopic dissection of the subject gudgeon pin and post had been conducted immediately following the incident, it would possibly reveal evidence indicating whether the pin was forcefully removed or not. However, forensic evidence that would have been present (or not present) post-incident was destroyed each time the pin was inserted and removed.
2The testing and calculations conducted by the author suggests that if the pin is assumed to be rigidly attached (the best case scenario), the force required to fail the chain link is approximately 1.95kN (199kg). In order to break the chain, a 600 kg cow would have to apply a pushing force equal to one-third of its mass. A cow determined to escape could certainly exert this amount of force on the gate.
3A cow or cows running into the gate is likely to create sufficient force and energy to break open the gate chain link, even if the gudgeon was rigidly attached and regardless of whether it was mounted parallel or perpendicular to the gate.
4The maximum withdrawal resistance or pull-out force of the subject gudgeon is estimated to be approximately 209 lb or 95 kg or 930N (sans pilot hole). When compared to the strength of the chain link, it can be seen that the gudgeon would pull out from the wood prior to the chain snapping, even if no pilot hole or a very small pilot hole was drilled prior to insertion."
As I have already said, Ms Gaffney was not questioned about her report or the conclusions she reached. Against that background, care needs to be taken with the weight given to them. However, her qualifications for the opinions expressed were appropriate. Counsel for the MAIB referred to the evidence of Blizzard about the installation of the gudgeon pin. As to that, Blizzard said about it:
"drill a small pilot hole, smaller than the thread, give it a tap – tap it in until the thread just bites and then wind it in with a shifting spanner……..I wound it in until the thread was buried into the post and the chain latched over the gudgeon pin sufficiently…. I wound the gudgeon pin in so there was no thread showing at all."
Mr Carrol disagreed with aspects of Ms Gaffney's report, but as to a number of matters did not. However perhaps relevantly he said in his report dated 23 April 2014 at page 6:
"It is not possible for a metal object fitted with a screw thread to be effectively anchored into a supporting component (in this case the timber post) if the hole for the screw is oversize. From my inspection of the original hole for the 'latch hook' in the timber post of the 'escape gate'. It is not obvious that a grooved internal surface is present nor is there any evidence of the original 'latch hook' having been torn out of the hole under load. I suspect that the original 'latch hook' was installed into a drilled hole that was slightly oversize and therefore the screw thread, such as it was, did not tightly engage inside the timber post."
Counsel for both the Lesters and the third defendant submitted that, without knowledge of the level of force applied to the escape gate, it would in effect be pure conjecture to conclude how the gate came to be open. Counsel for the third defendant submitted, after referring to evidence given by Blizzard, Michael and Matthew Lester and Mr Ralston, that:
"It is reasonable to find from these facts that the post moved over night causing the gudgeon to come out of the strainer post. It might have moved from some force applied by one or more steers perhaps to the gate, perhaps to the strainer post or perhaps to the strut assembly. However it is a guess as to where the force was applied and more critically what the extent of that force was."
Counsel for the third defendant then considered various possible causes for the application of force.
I have already concluded there was no stampede. There is no evidence as to whether or not the strainer post was vertically parallel with the gate immediately prior to the night of 25/26 June. The photographs and the evidence of Michael Lester suggest a slight leaning of the strainer post away from the vertical after the escape. That lean is only just discernible. The evidence of Mr Ralston was there was no sign of instability in that strainer post when he saw it after the escape. The evidence of Michael and Matthew Lester as to the state of the securing mechanism prior to the escape was that the chain part of the mechanism, while fairly tight, could still be lifted off and on without difficulty. The photographs taken the day after the escape clearly show that the gudgeon pin could not, with the length of chain present that day, be screwed into the strainer post so that there was no thread showing. They also show the chain taut, even with the gudgeon pin only partly screwed in. Blizzard said that when he installed the mechanism he did screw the pin in so that there was no thread showing. Either he was untruthful as to that, or the manner in which he installed it, and the materials he used, allowed for the pin to simply pull out when there was movement of the strainer post away from the vertical, however that may have been caused.
In my view, it is unnecessary to determine whether pressure on the post, gate or adjoining fencing caused the strainer post to move and the pin to fall out, or whether the gudgeon pin simply fell out as a result of some pressure applied by cattle to the gate or post. The above factors and others lead me to be positively satisfied that the gudgeon pin was, prior to the escape, loosely fitting such that even relatively minimal pressure allowed it to be pulled out and thus the gate to open. Those further factors are:
·     the type of thread on the gudgeon pin and that it was worn.
·     that the nature of the thread would not have provided sufficient friction to prevent it coming out even with a relatively low level of force.
·     the size of the steers in the paddock with the gate.
·     that those steers were, certainly late on the afternoon of 25 June, being fed somewhere near the gate and that feed was expected to last them at least overnight, thus placing the steers in the vicinity of the gate rather than elsewhere in the paddock.
·     that there was no evidence of the gudgeon pin having been "torn out".
·     as a matter of fact, the gudgeon pin was able to be manually pushed in and pulled out easily by Mr Ralston and Mr Armstrong. Mr Armstrong's "tests", while not particularly scientific, did demonstrate how easily the gudgeon pin could come out of the fence post. The fact that it could come out in the manner it did clearly demonstrates it was loosely fitting at the time of the accident.
·     that the strainer post had been installed in an area which even Blizzard acknowledged required him to put an extra post in to provide some security for it.
I do not, in my view, need to determine precisely what the level of force was which was applied to the gate, fencing or posts. The factors I have identified show that something caused the strainer post to move slightly away from the vertical. That was sufficient to pull the gudgeon pin out of the strainer post because of the tightness of the chain, the deficiency in the design of the gudgeon pin and the level of wear, and the manner in which it had been installed.
It is implicit in the above that I do not accept the evidence given by Blizzard as to the state of the gudgeon pin he used, that is its fitness for purpose, and the process he undertook to ensure the pin was securely installed.
Neither Michael nor Matthew Lester inspected the work done by Blizzard either at the time it was done or at any time thereafter. They provided Blizzard with second-hand materials including the gate, fence posts and what counsel referred to as the furniture for the hinging and latching of the gate. They did not check that the furniture they provided for use was fit for the purpose for which it was to be used. The evidence of Blizzard was there were pins in the bucket which were bent and unusable. Matthew and Michael Lester did use the gate on a limited number of occasions and said that, while the chain was fairly tight, the mechanism worked normally. I presume what they meant was that the pins remained in the post when they used the mechanism. There is no evidence that they subjected the latching mechanism to any sort of inspection or checking to see if it was secure, as opposed to whether they could open and shut it.
Given the nature of the "furniture" supplied by Michael and Matthew Lester for use to latch the gate, the condition of the one selected by Blizzard, and the fact it could easily be pushed in and out, leads me to conclude that, had the Lesters taken reasonable steps to check the efficacy of the pins available to Blizzard and that used, they would have known it was unsuitable for the use to which it was put.
This particular, in my view, is made out against the Lesters.

Particular (c) - With the pin of the securing mechanism positioned as it was, failing to position the gudgeon so that it pointed directly at Backline Road (ie, at 90 degrees to Backline Road)

There was no evidence led on the trial which could persuade me that the "90 degree" method was any more secure than the parallel method used. This particular is not made out.

Particular (d) - Failing to use, as part of the securing mechanism, a sufficient length of chain and in particular a length of chain sufficient to enable the pin to be positioned as it was and the gudgeon to be fixed in a position where it pointed directly at Backline Road (ie, at 90 degrees to Backline Road)

For the same reason as above, there was no evidence led on the trial to persuade me that a combination of a longer chain and a 90 degree method would have been any more secure than what was used. This particular is not made out.

Particular (e) - Failing to secure the opening end of the gate to the strainer post with a chain linked by a locked padlock

There was no evidence led on the trial sufficient to persuade me that the fact that the Lesters did not secure the escape gate with a padlock amounted to any breach of their duty to fence. The use of padlocks, while perhaps an ideal, was something more directed to protection against trespassers than a routine method of preventing the escape of stock. This particular is not made out.

Particular (f) - Failing to ensure that the approach to the gate from inside the property was protected by an electric current so positioned and of sufficient voltage that cattle in the paddock would be deterred from approaching the gate more closely

The evidence suggests the steers which escaped this night had only been in the particular paddock for maybe two days. Further, the evidence was that not all fences were electrified. Electrifying the escape gate may have deterred the steers from going near it. Clearly, however electrification does not always deter cattle. The evidence of Mr Ralston about what the cattle did this night when he was attempting to get them back into the paddock and of Mr Korpershoek about cattle going through electric fences, indicates that they do not in all circumstances act as a deterrent.
I am not satisfied that the MAIB has established to the requisite degree that electrifying the escape gate would necessarily have deterred the cattle from exiting the paddock through it, or that failure to electrify that particular gate represented such a departure from what a reasonable farmer would have done such as to amount to a breach of a duty to road users.

Particular (g) - Using, or supplying for use by the Third Defendant, or permitting or requiring the Third Defendant, to use, as part of the securing mechanism a gudgeon pin that was threadbare or substantially so, with the result that it was not securely fastened or capable of being securely fastened into the strainer post

There is no dispute that the gudgeon pin used came from the bucket of items provided by the Lesters. There is no doubt, in my view, the gudgeon pin used was ultimately inadequate for the job. While I am not satisfied that the Lesters required Blizzard to use the particular gudgeon pin that he did, they certainly supplied it intending that it could be used. For the reasons outlined under particular (b) I am satisfied that, with reasonable care they should have known, if used, this pin would have been inadequate for the purpose it was used for.
This particular is made out.

Particular (h) - Failing to inspect, or monitor, or check, sufficiently or at all, the condition of the securing mechanism and in particular the gudgeon in order to ensure the integrity and sufficiency of the securing mechanism

The fence replaced by the third defendant had, prior to its replacement, significantly deteriorated. While the Lesters no doubt recognized the need for replacement, and took steps to give effect to that, the materials supplied for potential use were clearly not all suitable for the purpose. Blizzard said there were pins in the bucket which were bent and unusable. It must be inferred the Lesters were responsible for what was in that bucket and had used items in it before around the property. The Lesters did not check the work done by Blizzard as it was being done or after it was completed. They did not check what he used from the bucket.
The only thing that Michael and Matthew Lester did was use the gate a limited number of times in the few months before the accident. It appeared to operate normally in that they could lift the chain and loop off the gudgeon pin. Such use would not necessarily have made apparent the insecurity of the gudgeon pin. It is apparent from what Mr Armstrong did that the gudgeon pin could be easily dislodged by a gentle wobbling of the gate.
Given the nature of the "furniture" made available, and that there were unusable items in the bucket to which Blizzard was directed, a reasonable person should have checked that what was used was actually secure. The Lesters did not do that. The particular is, in my view, made out.

Particular (i) - Failing to inspect, or monitor, or check sufficiently or at all, maintenance of vertical alignment of the strainer post at the opening end of the gate in order to ensure the integrity and sufficiency of the securing mechanism

There was no evidence one way or the other as to whether the strainer post was vertically parallel to the gate immediately prior to the escape. The evidence suggests it was not so after the escape. There was no evidence one way or the other as to whether any of the Lester family specifically checked the strainer post's alignment. Had, for example, the strainer post been so loose in the ground to have moved away from vertical during normal use of the gate, the evidence would suggest that the Lesters would have become aware of instability from their use of the gate. Their evidence would suggest no such obvious instability was apparent and that is consistent with the evidence of Mr Ralston.

This particular has not been made out.

Particular (j) - Failing to ensure that the strainer post at the opening end of the gate had not moved from its initial alignment, vertical to the ground, as the result of strain placed on it by the fencing wire or otherwise

For the same reasons given in relation to the preceding particular, this particular has not been made out.

Particular (k) - Failing to use or supply for use by the Third Defendant, or require the Third Defendant to use, or ensure that the Third Defendant used, a 'Franklin pack', rather than the securing mechanism, for the purpose of securing the gate

There is no evidence that the use of a Franklin Pack was the accepted method of securing an external gate to the exclusion of the mechanism used. The evidence does not support a suggestion that the fact that a Franklin Pack was neither used nor supplied represented any departure from the standard of care required of the Lesters. This particular is not made out.
Going back to particular (a), I am satisfied, by reason of my conclusion in relation to particular (b) that the gate was not secured adequately.

Particulars of negligence asserted against the third defendant

Particular (a) - Failing to secure the gate adequately or at all

For the same reasons as above, I am satisfied this particular is made out.

Particular (b) - Installing the gate so that the opening end of the gate was to be secured to the strainer post by means only of the securing mechanism

This particular appears to suggest that a mechanism in the form used was unacceptable whether or not the component parts were fit for purpose. To the extent that is what is being asserted, the particular is not made out. If by "securing mechanism" the plaintiff means the securing mechanism with the loosely fitting pin, then for the reasons already outlined, it is made out.

Particular (c) - Failing to make provision for the opening end of the gate to be secured to the strainer post with a chain linked by a locked padlock

For the same reasons as given in relation to particular (e) in respect of the Lesters, I am not satisfied this particular has been made out.

Particular (d) - With the pin of the securing mechanism positioned as it was, failing to position the gudgeon so that it pointed directly at Backline Road (ie at 90 degrees to Backline Road)

For the same reasons I have given in relation to particular (c) in respect of the Lesters, I am not satisfied this particular has been made out.

Particular (e) - Failing to use as part of the securing mechanism a sufficient length of chain and in particular a length of chain sufficient to enable the pin to be positioned where it was and the gudgeon to be fixed in a position where it pointed directly at Backline Road (ie at 90 degrees to Backline Road)

For the same reasons I have given in relation to particular (d) in respect of the Lesters, I am not satisfied this particular has been made out.

Particular (f) - Installing as part of the securing mechanism a gudgeon that was threadbare or substantially so with the result that it was not securely fastened or capable of being securely fastened into the strainer post

The gudgeon pin installed by Blizzard was certainly worn. It could not necessarily be described as "threadbare". The evidence of Ms Gaffney referred to the combination of wear and design for its failure. It could not be said its failure to be securely fastened was entirely due to its being threadbare.
This particular is therefore not made out.

Particular (g) - Failing to undertake the work so that the approach to the gate from inside the property was protected by an electric current so positioned and of sufficient voltage that cattle in the paddock would be deterred from approaching the gate more closely.

This particular cannot be made out as against the third defendant because it was never part of its instructions to provide for electrification of the gate. If anyone was to do that, it was to be the Lesters.

Particular (h) - Failing to advise the First and/or Second Defendants that the materials they had supplied and/or required him to use for the securing mechanism were inadequate for that purpose in that:-

the gudgeon was threadbare or substantially so; and/or
the gudgeon was so substantially threadbare that it was not securely fastened or capable of being securely fastened to the strainer post; and/or
the length of chain provided was too short to enable the gudgeon and the pin to which the gudgeon was attached by chain to be placed in proper alignment to one another;
the length of chain provided was too short to enable the pin to be positioned where it was and the gudgeon to be fixed in a position where it pointed directly at Backline Road (ie, at 90 degrees to Backline Road); and/or
there was no chain and padlock to enable the opening end of the gate to be secured to the strainer post by means of a chain linked by a locked padlock

Blizzard used materials from the bucket to which the Lesters directed him without query. He agreed that, had he considered any item unfit for purpose, he would have said something and he believed the Lesters would have bought a part for him. Blizzard at no stage asked for any parts. Accepting the evidence of Ms Gaffney about the type of pin used and that, post-accident, it was apparent the pin could easily be pushed in and out of the hole made, the evidence of Blizzard as to the process he adopted to secure the pin cannot be accepted. The gudgeon pin used however was not so much threadbare, as not designed for the purpose for which it was used.
As to the length of the chain and the assertion it was too short to enable the pin to be properly aligned, there was no evidence about what "proper alignment" was.
I am not satisfied these particulars have been made out having regard to the two preceding paragraphs and earlier findings.

Particular (i) - Failing to request and/or require the First and/or Second Defendants to provide materials for use for the securing mechanism that were appropriate for use as such and in particular failing to request and/or require:-

a gudgeon that was new or near new;
a length of chain of sufficient length to enable the gudgeon and the pin to which the gudgeon was attached by chain to be placed in proper alignment to one another;
a length of chain of sufficient length to enable the pin to be positioned where it was and the gudgeon to be fixed in a position where it pointed directly at Backline Road (i.e., at 90 degrees to Backline Road);
a chain and padlock to enable the opening end of the gate to be secured to the strainer post by means of a chain linked by a locked padlock;
materials which would enable the gate and/or the approach to the gate from inside the property to be protected by an electric current so positioned and of sufficient voltage that cattle in the paddock would be deterred from approaching the gate more closely;

There was no evidence a "new or near new" gudgeon pin would have resolved the problem. It may have been one of a different design of similar age might have worked. I simply do not know. For the same reasons as otherwise given under the previous particular, these particulars are not made out.

Particular (j) - Failing to advise the First and/or Second Defendants that the materials they supplied and/or required him to use as part of the work would mean that the securing mechanism was inadequate for the purpose of keeping the gate shut at all times when it was intended that the gate be shut

Blizzard held his company out to be experienced fencing contractors. They had done work for the Lesters before, and had to have been aware of the nature of their farming operations. As an experienced fencing contractor, Blizzard had to have been aware that any "furniture" he used for the latching mechanism was fit for the purpose for which it was used, and that any gate and latching mechanism he installed would be secure enough to hold the type of cattle the Lesters had.

Quite clearly, the gudgeon pin he used had a design that would not hold against even minimal pressure, and, in any event had little thread.
He knew the Lesters would have purchased appropriate items if necessary, and the existence of exhibit P28, which did have a more appropriately designed thread, shows such items were available even second-hand to him. He should have, by reason of his experience, known the deficiencies with the pin he used, and advised the Lesters accordingly.
This particular is made out.

Conclusions

Given the above findings, I am satisfied to the requisite degree that the Lesters and the third defendant owed a duty of care to House and breached that duty by the negligent acts so found. I am also satisfied that, as a consequence of their breaches of duty, the steers escaped from the Deep Creek property over the night of 25/26 June 2008 and wandered onto the Bass Highway. It was clearly foreseeable that if the steers did escape they would wander onto nearby roads and thereby pose a significant risk to any road user. In this particular case, the risk posed became reality and resulted in House's accident.
As a consequence, as non-indemnifiable persons, the defendants are liable to pay the scheduled benefits paid, and to be paid, by the MAIB.

Contributory negligence

As to this issue, counsel for the Lesters submitted that, while his clients did not concede that they had failed to establish that House caused or contributed to the damage suffered by the MAIB, they "nevertheless concede that they confront precisely the same difficulties as those which confront the plaintiff, and for many of the same reasons". Counsel for the third defendant made a similar submission but made some submissions to the effect that House did not slow his speed and did not slow or brake to avoid a collision. He said it "would be reasonable to find he was negligent". He said Mr Ralston was able to see the steers when he got on the road, and the road was wet.
The evidence was the road might have been wet. That came from Dr Pook. There was no evidence to suggest it was so wet as to create a hazard for a driver. Mr Nielson had his car on cruise control, but disengaged that. We do not know what speed he was doing when he hit a steer. However, as I said earlier, it would appear House's collision occurred first.
As to House's collision, it was dark, the beasts on the road were dark in colour, and House was driving a road, it has to be inferred, he knew well and well enough to be mindful of potential hazards. He could not have foreseen that a mob of cattle the size of what was there would be on the road at that point in time. There was no evidence to suggest House was speeding and not keeping a lookout. As to Mr Ralston, when he entered the road he already knew there was a problem of some description, and would have been alert to some sort of danger.
Given those circumstances, I am not satisfied any finding could be made that House caused or contributed to the accident in any way.

Contribution proceedings

Counsel for the Lesters made no specific submissions in regard to this issue, save that if the Lesters were found to be in breach of their duty, it must follow the third defendant was as well. There were no submissions as to any percentage contribution.
Counsel for the third defendant submitted that, if the Court were to find the defendants liable, it would be just and equitable that the Lesters should contribute 80% to the damage suffered. He submitted in support of that contention that:
·     the Lesters owed a non-delegable duty to road users by reason of the fact their property fronted the highway and they kept steers on that property.
·     they retained control over the fence and gate and were in a position to see any problems with them and fix them.
·     they provided the instruction as to the type of fence and gate to be used and the positioning of them.
·     they did not fit an electric stand-off wire which would have been a simple method of deterring the cattle from approaching the gate.
·     they provided the materials for the gate.
·     the Lesters were the farmers and possessed the greater expertise in what was needed to restrain their steers.
·     the Lesters knew what animals were to be in the paddock. There was no evidence Blizzard knew the age or type of the animal to be in the paddock.
All bar the last two submissions perhaps have some merit. As to those last two and generally, the third defendant held itself out as a rural fencing contractor and had been doing that type of work for a number of years. Blizzard gave evidence about different types of fencing for different purposes. He had worked for the Lesters before and had to have known the type of farming the Lesters were engaged in. I would not accept that the Lesters necessarily had greater expertise in what was needed to restrain their steers. It was also never suggested during the course of any evidence that Blizzard might have done something differently had he known that the particular paddock was to potentially house 150 head of steers of the type and weight which were housed there. It must be inferred that he knew, because of his experience, that external fences for paddocks which might house difference sizes of beasts needed to be secure enough to hold the largest of them.
While I accept that the Lesters retained control over the fences and gate, and were in a position, if so minded, to see any problems and fix them, and that they gave instructions as to the type of gate and fence to be used and their positioning, Blizzard was an experienced fencing contractor and held himself out as having the requisite experience in and knowledge of what was required to do the work for the Lesters. The submissions by the third defendant's counsel would suggest that Blizzard simply did what he was told by the Lesters and did not bring to bear any experience or knowledge of fencing techniques to the work he performed. That was not the tenor of his evidence.
I accept the Lesters provided materials and that they did not fit an electrical stand-off wire.
It is not an easy task to determine the relative degrees to which the Lesters and the third defendant departed from the reasonable standard of care required from each. Each of the Lesters and the third defendant exhibited failures. However, I accept that, even allowing for what appears to have been poor workmanship on behalf of the third defendant, had the Lesters exercised what might be described as a more robust approach to their duty of care, this accident might have been avoided. It is in the circumstances just and equitable they bear the greater proportion of the burden. I conclude that the Lesters should bear 65% of the liability, and the third defendant 35%.

Outcome

The MAIB is, in the circumstances, entitled to recover from both the Lesters and the third defendant any scheduled benefits already paid, or to be paid, to or for the benefit of House. That entitlement is not to be reduced in any way by reference to the Wrongs Act 1954, s4.
As to contribution between the defendants, the Lesters are to be responsible for 65% of the liability and the third defendant for 35%.
I will hear from counsel as to the precise orders to be made to give effect to these reasons, if they are unable to agree them.