Parsons v Cargill Australia Ltd

[2005] HCATrans 235

[2005] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S293 of 2004

B e t w e e n -

COLLEEN MARY PARSONS

Applicant

and

CARGILL AUSTRALIA LTD

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 2005, AT 9.50 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:   May it please, your Honours, I appear with my learned friend, MR D.R.J. TOOMEY, for the applicant.  (instructed by McLaughlin & Riordan)

MR M.L. WILLIAMS, SC:   If your Honour pleases, I appear for the respondent.  (instructed by Moray & Agnew)

GLEESON CJ:   Yes, Mr Toomey.

MR TOOMEY:   May it please, your Honours.  Your Honours, if I can very briefly sketch the facts.  The applicant was the plaintiff in the court below having been seriously injured when a Santa Gertrudis steer ran into her car at night on a road on the outskirts of Wagga Wagga.  The accident happened at about 10.30 at night.  At about 5.30 or quarter to six that day, the steer had been one of a mob being driven by the respondent to its abattoir which was about 1.2 kilometres from a saleyard, both on the north‑western outskirts of Wagga Wagga.  In the course of the cattle being driven, this Santa Gertrudis steer jumped the fence and escaped.  It appears to have jumped another fence and was found at about 6 o’clock in a paddock known as the Hill Paddock in the respondent’s holding paddocks for the abattoir. 

McHUGH J:   Well, I think we are familiar with the facts and speaking for myself, if I was sitting on the Court of Appeal I do not think I would have reversed the trial judge, but where is the special leave point in the case, Mr Toomey?

MR TOOMEY:   Your Honour, we can only rely on the justice of the case, the second leg of the Judiciary Act prescription, but we can also say that the Court of Appeal appears to have applied a test of foreseeability which was quite wrong.  In paragraph 37 of his judgment at page 82 of the application book, Justice Cripps, who gave the judgment of the court, said this:

The learned trial judge found that Mr Rutland’s solution –

Mr Rutland being the head stockman of the respondent –

would not, on the balance of probabilities have succeeded . . . In my opinion that finding was not open.  It is true that Mr Rutland acknowledged a risk that the animal might not do what he thought it would do but that is a far cry from saying that, putting hindsight to one side, a reasonable man in his position and experience should have thought, on the balance of probabilities, that what he was proposing would not succeed.

GLEESON CJ:   There is not any suggestion of negligence on the part of these stockmen up until the time the steer was in the holding paddock, is there?

MR TOOMEY:   No, your Honour.

GLEESON CJ:   So the negligence consisted in the way they dealt with the problem.

MR TOOMEY:   That is so, your Honour.

GLEESON CJ:   And, as I understand the reasoning of Justice Cripps, and I understand the evidence, they were confronted with a choice between at least two possible courses of action.  I think there was a third one which was - to shoot the beast was one.

MR TOOMEY:   There were actually five including that one, your Honour.

GLEESON CJ:   And Justice Cripps said, on the evidence, including some expert evidence, the choice they made was not an unreasonable one.

MR TOOMEY:   Well, your Honour, the difficulty with that is that we say that the evidence for the respondent itself, the expert evidence for the respondent was from a man named Spark who said that he thought the method they adopted had a 70 to 75 per cent chance of being successful.  In other words, there was a 25 to 30 per cent chance that the method would not be successful and that this beast would continue its flight and, in our respectful submission, that established that it was not a reasonable method which was adopted.

McHUGH J:   But why does that follow, Mr Toomey.  As we said yesterday, reasonableness may often be carried out by inaction.

MR TOOMEY:   Yes.

McHUGH J:   Here was a choice, they had a number of choices and they elected to take a particular one which turned out, unfortunately, to injure your client but it was a choice that was open.  Why was it negligence to prefer one as opposed to another, even if one has a greater probability of risk than the other?

MR TOOMEY:   Your Honour, if there were methods open to them which did not carry that risk, in our respectful submission, it was negligent to prefer that one and the evidence was that there was a method which did not carry that risk.

GLEESON CJ:   Well, you say that risk.  Having regard to the propensity of these beasts to jump fences, which is how the problem arose in the first place, short of shooting it, they could not do anything that would be certain to stop it.

MR TOOMEY:   No, not certain but they could do something which would put them in a position where they would know, with proper observation, whether the beast was likely to continue.  You see, what happened, your Honours, was that the head stockman and another stockman found the beast, observed it for two minutes and left it, just walked away and left it.

GLEESON CJ:   With an open gate between it and the rest of the ‑ ‑ ‑

MR TOOMEY:   An open gate and other fence.  To get to the other cattle it would have had to go through an open gate and jump the fence.  The method that was proposed was one which had been used half an hour earlier successfully when another Santa Gertrudis had jumped the fence, literally and figuratively, and they had then brought up some cows from the herd, introduced him to those cows and then herded them all into a safe paddock.  Now, what the expert cattleman called for the plaintiff at trial said was that the probabilities were that that would have succeeded with this beast.  He said that there was a possibility, but it was unlikely, that if you had driven other cattle up to join with it and take it back to a safe paddock, that it might have spooked it, but he said that was unlikely. 

GLEESON CJ:   Terrible thing to say, but this does not sound like an issue on which our opinion would be better than anybody else’s.

MR TOOMEY:   Well, it is a pretty important issue, I would have thought, in rural Australia, your Honour.

GLEESON CJ:   I know.

MR TOOMEY:   It is something that happens, as your Honours know, not infrequently.  This beast could have caused a bus driver or a car full of children or ‑ ‑ ‑

GLEESON CJ:   That is why we try to look for some issue of principle or some issue of law.

MR TOOMEY:   Yes, your Honour, I know that that is so, but we say that this matter has simply been treated wrongly by the Court of Appeal.  They have made two major errors, in our respectful submission.  One is the error they have made in considering the risk and the second is when they found

that it was not open to the learned trial judge to find that the alternative, which Mr Weston, the plaintiff’s expert, said would have succeeded, they said it was not open to the trial judge to find that to be the case and that was clearly wrong.

There was the evidence of Mr Weston which I have told your Honours, that he thought it would succeed.  He acknowledged a possibility that it would not and, of course, since we are dealing with an historical fact in respect of that, all that was needed was the balance of probabilities so the Court of Appeal were clearly wrong in that area and I can only say to your Honours that there is, we submit, an unjust result in a case which is of importance in country Australia.  I cannot say any more than that.  May it please, your Honour.

GLEESON CJ:   Thank you, Mr Toomey.  We do not need to hear you, Mr Williams.

This case turned on the application of settled principles to the particular facts and circumstances and does not, in our view, raise an issue suitable to a grant of special leave to appeal.  The application is dismissed with costs.

The Court will adjourn to reconstitute.

AT 9.59 AM THE MATTER WAS CONCLUDED