Rockdale Beef Pty Ltd v Carey

[2003] NSWCA 132

CITATION:	Rockdale Beef Pty Limited v Carey [2003] NSWCA 132
HEARING DATE(S):	23/05/03
JUDGMENT DATE:	13 June 2003
JUDGMENT OF:	Mason P at 1; Ipp JA at 2; McColl JA at 128
DECISION:	(1) Application for leave to appeal granted (2) Appeal dismissed with costs (3) Application for leave to cross-appeal granted (4) Cross-appeal upheld (5) The judgment of Sorby DCJ be set aside and in lieu thereof there be a verdict and judgment for Mr Carey in the sum of $134,943.15 (6) Rockdale pay Mr Carey's costs of the cross-appeal.
CATCHWORDS:	NEGLIGENCE - Duty of care owed by entrepreneur to independent contractor - Whether duty of care was breached by entrepreneur - Whether causation was established - Whether independent contractor was contributory negligent. D
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 Climaze Holding Pty Ltd v Dyson (1995) WAR 487 Council of the Municipality of Waverley v Loge [2001] 1 NSWCA 439 Graham Barclay Oysters Pty Ltd v Ryan [2002] 194 ALR 337 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Kolodziejczyk v Grandview Pty Limited [2002] NSWCA 267 Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Perre v Apand Pty Limited (1999) 198 CLR 180 Rauk v Transtate Pty Limited (2001) Aust Torts Reports 81-592 Rylands v Fletcher (1986) LR 3 High Court 330 State Rail Authority of New South Wales v Watkins [2001] NSWCA 405 Stevens v Brodribb Saw Milling Company Limited (1980) 160 CLR 16 Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	Rockdale Beef Pty Limited (Claimant) Ross David Carey (Opponent)
FILE NUMBER(S):	CA 40974/02
COUNSEL:	A Hewitt SC/E Cox (Claimant) E Romaniuk (Opponent)
SOLICITORS:	Curwood & Partners (Claimant) Farrell Lusher (Opponent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6/01
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

CA 40974/02
DC 6/01

MASON P
IPP JA
McCOLL JA

Friday, 13 June 2003

ROCKDALE BEEF PTY LIMITED v ROSS DAVID CAREY

FACTS

The opponent was injured when he was working as an independent contractor at the claimant’s feedlot. The injury was sustained when the opponent attempted to herd a steer (which had escaped into a laneway or race) back to its pen. In the process of moving past the steer in order to herd it back to its pen, the steer swung in front of the opponent’s horse causing him and the horse to fall.

Sorby DCJ found that the claimant owed the opponent a duty of care that it had breached by failing to provide a safe system of work within which the opponent could carry out his duties as a stockman. His Honour found the opponent guilty of contributory negligence, assessing the opponent’s negligence at 40%.

The claimant applied for leave to appeal contending that his Honour wrongly held that it had been negligent. The opponent sought leave to cross-appeal contending that his Honour erred in finding him guilty of contributory negligence.

HELD per Ipp JA (Mason P and McColl JA agreeing)

1. The existence of a duty of care owed by an entrepreneur to an independent contractor is not conditional on the existence of any particular factual element. An entrepreneur may owe a duty of care to an independent contractor when, according to the general law of negligence, the circumstances are such that a duty arises: Stevens v Brodribb Sawmilling Company Pty Limited (1986) 160 CLR 16 per Wilson and Dawson JJ and Deane J. It is the substantive content of the relationship between the parties that is decisive and one must consider the totality of the relationship between the parties: see Graham BarclayOysters Pty Ltd v Ryan (2002) 194 ALR 337 at 375.

2. A duty of care owed by an entrepreneur to an independent contractor may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations such as vulnerability, inequality of bargaining power, control and other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present: see, for example Perre v Apand Pty Limited (1999) 198 CLR 180.

3. In the circumstances of this case, due to the degree of control the claimant exercised over the work site and system of work, the opponent was as reliant on the claimant for his safety as any employee. Further, due to the inequity of bargaining power between the parties, the opponent was as vulnerable to potential misuse as any employee. Accordingly, to the extent that the configuration of the work site caused there to be a safety risk in the work the opponent was directed to carry out, the claimant came under a duty to use reasonable care to avoid or minimise that risk, that is, a duty to provide the opponent with a safe system of work. The relevant duty of care was akin to that which would have been owed to the opponent had he been an employee, that being the “duty to take reasonable care to avoid exposing … employees to unnecessary risks of injury”: Hamilton v Nuroof(WA) Pty Ltd (1956) 96 CLR 18 at 25 cited in Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 307-8.

4. The vulnerability of the opponent, the degree of control exercised by the claimant over the work site and the system of work, the obvious risk of harm and the seriousness of the harm that could result from the work practice that the claimant directed its employees and contractors to follow called for positive remedial action on its part. Cheap remedial measures were available which would have minimised the foreseeable risk of harm. By failing to implement these remedial measures, and thereby failing to provide a safe system of work, the claimant breached the duty of care it owed to the opponent.

5. Had remedial measures been implemented, the accident would have been avoided. Causation was therefore established.

6. The opponent was not guilty of contributory negligence by attempting to pass the steer at the narrower section of the race. The configuration of the work site made it unsafe for the opponent to pass the steer at any section of the race in the manner prescribed by work practices.

ORDERS

(a) Application for leave to appeal granted.

(b) Appeal dismissed with costs.

(c) Application for leave to cross-appeal granted.

(d) Cross-appeal upheld.

(e) The judgment of Sorby DCJ be set aside and in lieu thereof there be a verdict and judgment for Mr Carey in the sum of $134,943.15.

(f) Rockdale pay Mr Carey’s costs of the cross-appeal.

CA 40974/02
DC 6/01

MASON P
IPP JA
McCOLL JA

Friday, 13 June 2003

ROCKDALE BEEF PTY LIMITED v ROSS DAVID CAREY

Judgment

1 MASON P: I agree with Ipp JA.

2 IPP JA:

The appeal and cross-appeal

3 This case concerns a claim for damages for personal injuries brought by the opponent, Mr Carey, against the claimant, Rockdale Beef Pty Limited (“Rockdale”). Mr Carey’s injuries were sustained in an accident on 19 January 1998 at Rockdale’s feedlot. At the time, Mr Carey was working as a stockman on the feedlot doing mustering and related work. It was common ground that he was then working as an independent contractor and not an employee of Rockdale.

4 The accident occurred when a steer escaped from a pen in the feedlot and entered a laneway or race adjacent to the pen. Mr Carey, while on horseback, attempted to herd it back to its pen. In the process of doing so, he galloped past the steer (so as to get behind it), but the animal suddenly swung around into the path of his horse. The horse fell, as did Mr Carey, and he was severely injured.

5 Sorby DCJ found that Rockdale owed Mr Carey a duty of care that it had breached, in effect, by failing to provide a safe system of work within which Mr Carey could carry out his duties. His Honour also held that Mr Carey was guilty of contributory negligence and he assessed Mr Carey’s negligence at 40%. He gave judgment awarding Mr Carey damages in accordance with his findings.

6 Rockdale applies for leave to appeal against the decision and contends that his Honour wrongly held that it had been negligent. The application for leave was heard concurrently with the appeal.

7 The grounds of appeal are nine in number but, as argued by Mr Hewitt SC, senior counsel for Rockdale, can be summarised as follows:

(a) Sorby DCJ wrongly held that Rockdale owed Mr Carey a duty of care.

(b) Should such a duty of care exist, it was not in the terms stated by his Honour.

(c) Sorby DCJ erred in holding, in effect, that, in breach of its duty of care, Rockdale failed to install a gate midway along the race where the accident occurred.

(d) Sorby DCJ gave inadequate reasons for his rejection of Rockdale’s expert evidence that the installation of gates in the race was not a reasonable precaution.

(e) Sorby DCJ erred in holding that the failure to install the gates was causative of Mr Carey’s injuries.

8 Mr Carey seeks leave to cross-appeal in regard to the apportionment of damages determined by the learned judge. He contends that his Honour erred in holding that he was guilty of contributory negligence. Mr Carey’s application for leave was also heard concurrently with the cross-appeal.

The findings of the trial judge

9 In dealing with Rockdale’s duty of care Sorby DCJ said:

“The proximate relationship between [Mr Carey] and [Rockdale], first as an employee stockman then a sub-contractor doing the same work was such that, in my opinion it gave rise to a duty of care. That duty is probably as high as that between employee and employer as per dicta in Stevens v Brodribb Sawmilling Company Pty Limited (1986) 160 CLR 16 at 31 and 47”.

10 His Honour observed:

“There was a foreseeable risk of injury that was neither far fetched [n]or fanciful, that the beast might suddenly turn and run into the path of a stockman’s horse”.

11 His Honour considered, in effect, that the system of work provided by Rockdale was dangerous. He noted in this regard that:

“There was an alternative system available of the installation of a gate or gates along the race at intervals. Such a gate was installed in the race of new pens in [Rockdale’s] premises and according to [Mr Carey] after he had returned to work he had occasion to use the new gate ‘to block the steer from running down the lane’”.

12 His Honour considered that if there had been a gate in the race, capable of reducing its length, the accident could have been avoided. He explained:

“If the gate had been present in the race where the [opponent] was injured he could have closed it from the grass lane [running alongside the race] first then approach the beast on horseback to identify it before herding it back to its pen”.

In other words, he found that the presence of such a gate would have obviated the need for Mr Carey to gallop past the steer in order to get behind it.

13 On these grounds Sorby DCJ held that Rockdale had breached its duty of care by requiring Mr Carey to carry out its “practice for rounding up stray pen lot beasts by galloping past the beast at speed on horseback in the relatively enclosed space of a race when it knew, or ought to have known that such a practice was dangerous involving an unpredictable heavy animal”.

Rockdale’s engagement of Mr Carey

14 Rockdale’s feedlot was in Yanco, New South Wales. It was a large establishment that could hold some 53,000 head of cattle. Some 47,000 were being held at the time of the accident.

15 At the time of the accident Mr Carey was 32 years of age. He was at school until aged sixteen years but did not progress very far. Despite attempts he has made on and off all his life to teach himself to read, he is barely able to read a newspaper. He is only able to “[p]ick up bits and pieces of it”.

16 Mr Carey had worked with horses since childhood and by the time he commenced working for Rockdale he was an experienced horseman and stockman.

17 In 1991 Mr Carey obtained employment with Rockdale as a stockman on a casual basis. In 1992 his employment became permanent. In July 1997 Mr Carey ceased being an employee of Rockdale and was engaged by it as an independent contractor. It appears that, throughout the period from 1992, when he was permanently engaged by Rockdale, until the time that he left Rockdale (after the accident), Mr Carey did not work for anyone else.

18 Mr Carey provided his own horses and equipment when carrying out his work. His duties as a stockman included mustering cattle between feed pens, weighing cattle and, when the occasion arose, rounding up cattle that had managed to escape the pens into laneways or races adjacent to each feedlot pen.

19 When, in 1997, Mr Carey changed from being an employee to an independent contractor, his rate of pay went up. Rockdale insisted that he obtain an income protection policy but made no mention of a personal accident policy (which he did not acquire). He was of course no longer entitled to workers compensation.

20 The advantages to Rockdale in Mr Carey becoming an independent contractor are obvious. It no longer needed to take out workers compensation insurance cover in respect of his employment and there must have been opportunities for savings resulting from a number of administrative tasks, imposed by law on employers, no longer being necessary.

21 Mr Carey was not particularly high in the hierarchy of the Rockdale staff. From the time he commenced working for Rockdale, he was told what work to do by the head stockman and others.

22 The change in the terms of Mr Carey’s engagement that occurred in 1997 did not result in any change in the nature or methods or extent of his work. After he became an independent contractor he continued to be told what to do by more senior persons working for the Rockdale organisation. When asked whether, when he changed to being an independent contractor, his work was different in any way, he replied, “no different, exactly the same”. There was no challenge to this.

23 An example of this state of affairs is the instruction given to Mr Carey that led to his attempted mustering of the steer that caused his injuries. Immediately prior to the accident, Mr Carey was in the company of three other Rockdale employees or independent contractors engaged by Rockdale. They were setting off to muster cattle which had to be taken to a weighbridge. One of the three, “a level two stockman”, then instructed Mr Carey to ride up to an escaped steer which had been observed in the race. He was told to bring it back to the southern end of the race so that its home pen could be identified. It was in carrying out this work that he was injured.

The configuration of the feedlot

24 Rockdale’s feedlot was a large-scale commercial enterprise. Its business included the pen feeding of cattle for different periods and with different types of feed so that various groups of steers would be ready at different times for different markets.

25 The set-up of the feedlot included many food pens approximately 70 metres x 100 metres in dimension. Each pen held about 400 head of cattle. There must have been some 130 pens on the feedlot.

26 Photographs tendered in evidence depict several lines of pens situated adjacent to each other with races running alongside each line of adjacent pens. The cattle in each pen were at different stages of physical development and feeding, that is to say, one pen would contain cattle at a different development stage to cattle in another pen. The cattle in the pens were identified by red ear tags.

27 The race on which Mr Carey was injured ran roughly from south to north. It was 650 metres long.

28 A grassed area was situated to the immediate west of the race. The grassed area was separated from the race by a straight fence running along the entire length of the western boundary of the race. Although there was no evidence as to the width of the grassed area, it appears from photographs to have been at least double the width of the race. It was described as a drainage pit.

29 A series of adjacent pens running from south to north was situated on the eastern side of the race. The fence that bounded the pens on the eastern side of the race was of a “herringbone” or “saw-toothed” or jagged formation. This meant that the race continually narrowed and broadened in width. It did so in conformity with the saw-tooth formation of the eastern fence. At its narrowest sections, the fence was approximately four metres wide and at its broadest sections it was approximately seven metres wide.

30 Gates affording access to each pen were installed in the fence at each of the narrowest sections of the race. Each such gate opened completely across the laneway until it touched the western fence of the race. Thus, when an access gate was opened, it allowed musterers, herding cattle along one of the fences of the race, to direct the cattle against the opened gate and then, through the opening, into the pen. Likewise, when the gate was opened, with the pen full of cattle, the opened gate allowed musterers to direct cattle out of the pen into the race.

The need to muster escaped cattle and the system adopted

31 It was common for cattle to escape from pens into adjacent races. This would occur when a cable in a fence failed or when cattle, lying against a fence, would create a depression in the ground and which progressively became larger until a steer would be able to roll under the fence and thereby gain access to the race. For this reason, rounding up and returning escaped steers to their home pens was a regular occurrence at Rockdale’s feedlot and a regular part of Mr Carey’s duties as a stockman.

32 Feedlot cattle are easily subject to stress from panic and exertion. They can die from heart attacks caused by stress or over exertion. According to the unchallenged evidence of Mr Huefner, an expert who testified on Mr Carey’s behalf, there is a paramount need to deal with cattle so as to avoid any detrimental impact to their value. Thus, it was important, when rounding them up, to prevent them from panicking and dashing off and running long distances. This could be a difficult exercise as, if a stockman came too close to a steer, the animal was likely to be startled and to run away.

33 Thus, it was the task of the stockman to get each escaped steer into its home pen as calmly as possible with the animal travelling the shortest possible distance. If at all possible, cattle were not to be herded along the full length of a race before being turned and herded back to the other end of the race.

34 According to Mr Huefner:

“The access lanes have been designed for efficient loading and unloading of pens, but not for the circumstance of herding one or more beasts into pens once they have passed the entrance to their pens. The long, undivided length of the raceway prompted drovers to by-pass beasts at speed to head them off”.

35 The relative long length of the races resulted in the stockman being required to round up escaped cattle in a particular way. In order to determine an escaped steer’s home pen, the stockman had to get close enough to the steer to read its red ear tag. This could be done properly only when the animal was corralled or herded into an appropriately confined space where the stockman, from the vantage point of his horse, could read the tag. This, essentially, required the stockman to herd the animal up against a gate, bounded by fences running at right angles on each side of the gate.

36 Such a gate existed at the southern end of the race where the accident occurred. A gate straddled the race at its southern end and was bounded by the eastern and western fences of the race, which ran north to south along the race. If a steer escaped from a pen, and was found within the southern half of the race, the stockman needed to get behind the steer and then herd it in a southerly direction back to the southern gate where it could be corralled. The stockman could then read the ear tag and proceed to herd the steer to its home pen.

37 The difficulties facing stockmen in getting behind the cattle are apparent from the testimony of Mr Mansell, a “level 2 contractor”, engaged by Rockdale. Mr Mansell had been head stockman. He was called to testify by Rockdale. Mr Mansell’s evidence was that it was necessary to approach a steer in the race fairly slowly. He was questioned further on this topic as follows:

“Q. In your experience as a stockman and not just in the abattoirs, not just at Rockdale, are cattle, if approached in that manner, likely to turn and move quickly?
A. I think if you approach an animal abruptly, he’s going to be wary of you.
Q. But in your experience is it possible that they will turn and for instance get in your way if you approach them abruptly?
A. I think they hear you coming and they – yeah.”

38 If, in a race 650 metres long, the steer took off to the north before the stockman got behind it, the consequences could be serious. The steer would then be likely to run all the way to the northern end of the race. If the steer was say 100 to 200 metres from the southern gate when it commenced to run, it would travel some 550 to 450 metres to the northern end where the ear tag would be read and the animal then herded southwards to its home pen. This could involve a journey of over a kilometre with damaging and even possibly fatal results to the animal and a loss to Rockdale.

39 To prevent these adverse effects, a practice was followed that was designed to enable the stockman to round up and herd the animal to the southern gate without it escaping northwards. This involved the stockman riding from the south in a northerly direction along the race at a slow pace. Shortly before reaching the animal the stockman would cause his horse to speed up and thereby pass around the back of the animal before it realised what was happening. Once at the back of the steer, the stockman could herd it at walking pace to the southern gate where the process of reading the tag and taking the steer into its home pen could be achieved.

40 Mr Carey described this system as “standard practice”. A Rockdale document headed “Accident/Incidence Report” (completed by Mr Carey’s supervisor, Jack Ireland) was put into evidence. This document contained an acknowledgment by Rockdale that it had a safe system of work, that Mr Carey had been trained in the system, and that at the time of the accident he had followed that system. The system in question was that which I have described.

Mr Carey’s credibility

41 At this stage, it would be appropriate to comment on Mr Carey’s credibility. Mr Carey is not an articulate person. On reading the transcript it seemed to me that at times he did not understand the precise nature of particular questions and his answers were not as complete as might have been hoped for. This resulted in some ambiguities in his testimony. There is an obvious explanation for this. One of the medical specialists who attended him described Mr Carey as follows:

“[H]e was a co-operative, undramatic man to interview and in some ways a typical Australian bushman that is, a man of relatively few words. He is a man of no great education and is barely literate and struggles to read a newspaper so to that extent he is reliant upon his physical well-being in terms of employment”.

According to the doctor, Mr Carey “is somewhat ill at ease with people he is meeting for the first time and is a shy person. He struggled at school …”.

42 It was not suggested that Mr Carey was anything other than truthful in his testimony. This was not a case where credibility was in issue. There was no significant difference between Mr Carey’s testimony and that of Mr Mansell, although they differed to a degree in their opinions as to the best way to get behind a steer in a race. Sorby DCJ accepted Mr Carey’s evidence, which so far as I could determine from reading the transcript, has the ring of truth. In the circumstances, I have no hesitation in considering that his testimony, where it is unequivocal, should be accepted.

The accident

43 The steer was about 150 to 200 metres to the north of the southern end of the race when Mr Carey and the other men with him first noticed it and when he was directed to herd it back to the southern gate.

44 As Mr Carey rode his horse northwards along the race, he noticed that the steer was standing broadside to his line of travel (that is, at right angles to his approach) and it was gazing into the pens to the east.

45 The steer did not take much notice of Mr Carey, but when Mr Carey got close to it, the steer suddenly saw him and turned in front of him. He was about five feet away when this occurred. Mr Carey explained:

“He spun in front of me and took the legs out from underneath my horse and then I come down”.

46 Mr Carey’s explanation for the accident was that the steer heard him coming, looked around and saw him, and then swung away to head up north. The steer, in its sudden turning action, struck Mr Carey’s horse.

47 It was later discovered that the home pen of the steer in question was about 150 metres from the southern end of the race.

The different speeds at which cattle have to be approached and passed

48 Mr Carey said that if one went up to a steer at a slow pace, the animal would “run in front of you and they’ll be gone”. He said that, on the other hand, “if you get to him quick, he won’t have time to take off … . But if you just take your time getting there, he’s gone”. This was his justification for cantering (and not walking) up to the steer.

49 He said the stockmen had to “get faster to get around them to bring them back down [the race].” This was his justification for increasing his speed to a gallop when attempting to pass the steer.

50 Rockdale contended that Mr Carey had ridden too fast in attempting to get behind the steer. This argument was based on the following evidence given by Mr Mansell (who had observed the accident) in his evidence-in-chief:

“Q. What did you see?
A. Well I saw Ross approaching this steer that was in the lane. He was probably a 550 kilo steer. Ross approached it to go around it to turn it back to get it out of the lane or out of the road and collided, tipped himself and the steer end for end.
Q. Did you form an opinion as to the gait of Mr Carey’s horse as it approached the steer?
A. I’d call it a hand gallop which is a controlled gallop.
Q. Did you form an opinion as to whether or not that was an appropriate speed at which to approach the steer?
A. Well I thought myself it was probably a bit quick. I would’ve approached it in a quiet way myself.
Q. In your experience, if approached in a quieter way as you described – and I’ll ask you to explain what you mean by that first. What do you mean by that?
A. Well you can walk up to a steer like that within 15 or 20 metres and he probably will just stand there and look at you, so if you kept approaching quietly – I mean these cattle are quiet, they’re used to people and horses cause they’ve been there probably 50, 80 days, so you could approach him within 15, 20 metres and jog up around him and you’d probably get him.
Q. When you say jog, what do you mean?
A. Well it’s a very quick trot or a slow canter, and just sneak around him rather than take the risk of a quick approach.”

51 Mr Mansell’s testimony that “you can walk up to a steer like that within 15 or 20 metres and he probably will just stand there and look at you” was inconsistent with other evidence he gave, namely:

“Q. So if you just approach the steer walking towards it, the steer can run away from you?
A. He can, yeah.
Q. Has that ever happened to you in your experience?
A. Yeah, yeah, the younger cattle will because they’re not used to you and your horses.”

This part of Mr Mansell’s testimony was consistent with that of Mr Carey.

52 While there was a difference between Mr Carey and Mr Mansell as to the degree of speed that was required to pass a steer, they were at one in recognising the need to accelerate before getting to the animal so as to get behind it before it could run away.

The risk inherent in the system

53 Mr Carey said that it was not uncommon for him to fall off a horse in the course of his work, either because of the way in which the horse behaved or the way in which stock behaved. This was part of his job as stockman. He had not previously had any serious injury from falling off a horse. His case, however, was that the configuration of the race required him to go past a 550 kilogram steer at speed and in close proximity to the animal, and this significantly increased the risk to which he was exposed. It was argued on his behalf that the risk could readily have been removed had a gate being installed halfway along the race.

54 Mr Carey said that he had seen cattle “turn, cut around” when approached, but not “right when you get on top of them”. The fact that Mr Carey had not seen steers act in this way does not mean that there was not a significant possibility that they might do so. Their behaviour was simply unpredictable.

55 Mr Huefner said, “[i]t is not uncommon for cattle to lunge or shy sideways, but it would not be predictable …”. For that reason, “a quick gallop” was appropriate, as that would enable the stockman “to get past the beast as quickly as possible”. Mr Huefner said that a seven metre wide race “is probably of insufficient width to enable a rider to easily and casually by-pass a beast to head it off”.

56 The Rockdale Accident/Incident Report recorded: “unable to prevent a 100% accident, when work practices were being followed”. This was an acknowledgement that, according to the system of work required by Rockdale, it was not possible to prevent the occurrence of an accident of the kind in which Mr Carey was injured.

57 Mr Mansell conceded that, when passing a steer, the animal might turn unpredictably and get in the way of the stockman.

58 Rockdale called Mr Rowland, a feedlot development officer employed by the Government of Victoria, to give evidence on its behalf as an expert. In a written report Mr Rowland said:

“I do not believe that the laneways at Rockdale Beef’s feedlots are too narrow, as this design feature is based on the requirements and layout of the feedlot. However, I have not moved stock from the pens along the laneways. I do not believe there is anything unusual or wrong with the design of the lanes and they comply with the standards set out in the Victorian guidelines”.

He expressed no opinion as to the risk involved in the system of work adopted at the Rockdale feedlot for dealing with cattle that escape into races.

59 It seems to me that there are significant risks in a system of work that requires a mounted stockman to move at a relatively slow speed up to a 550 kilogram steer in a race, then accelerate, whether by way of a quick trot, a canter or a gallop, so as to pass the animal before it can turn and plunge away. The inherent nature of the animal, its unpredictability, its capacity to move quickly and its size make this a particularly risky procedure. The risks are obvious. This is common sense, but it is also borne out by the undisputed evidence of Mr Huefner, as well as the evidence of Mr Carey and Mr Mansell.

The difference that a gate makes

60 The proposition advanced on Mr Carey’s behalf at trial and accepted by Sorby DCJ was that a gate should have been installed midway along the race. Such a gate, when closed, would have had two advantages. Firstly, the length of the race along which an escaped steer could run would be substantially reduced. The presence of a closed gate at a position half way along the race would, when closed, reduce each section of the race to some 325 metres. Secondly, the gate could be used by the stockman as an alternative barrier against which the steer could be corralled and turned without the need to pass it in order to get behind it.

61 On Mr Carey’s case, had a gate been installed half way up the race the need for him to attempt to pass the steer at speed would have been avoided. It would have been open to him to ride up the grass drainage pit section, get off the horse, close the newly installed gate, re-mount the horse and return along the drainage pit section to the southern end, re-enter the race at that point, proceed to corral the steer at the closed gate midway up the race, read the tag, and then, by herding the steer against the gate and then the fence, return it to its home pen. Mr Carey also could have walked up the drainage pit to the north, closed the new gate, returned to his horse at the southern end of the race and proceeded further as I have described. These methods would have avoided the need to pass the steer in order to get behind it.

62 Mr Carey’s case in regard to the benefits of a gate midway along the race was supported Mr Mansell, who testified as follows:

“Q. If you have the gates in the laneway where – on the laneway of where the plaintiff’s accident happened, there’s that section of grass in the middle which I think is a drainage pit?
A. Yeah.
Q. To operate the gate, if there was a gate on that access lane --
A. Yeah.
Q. -- you could make your way up the drainage path section in the middle --
A. Yeah, you could get --
Q. -- rather than going into the lane?
A. Yeah, you can get out right at the bottom where that X is. There’s a gate out there, and you could ride up --
Q. Get to the other side of the steer?
A. Yeah.
Q. Lock the gate down?
A. You could do that.
Q. And then you have the steer in a controlled environment and you can hunt him down fairly easily down to the X spot?
A. Yeah.
Q. or you can hunt --
A. Well you’d have to walk down behind him because your horse is going to be on the other side of the fence.
Q. The alternative is, once you’ve blocked the lane, you know he can’t run anywhere, he’s up in that area --
A. Well he can’t go up any further.
Q. That’s right. You can go back down --
A. That’s right.
Q. -- to the X spot?
A. Yeah.
Q. And come back up the lane --
A. Yeah.
Q. -- and either trap him in that corner that you’ve created by blocking the gate --
A. Yeah.
Q. -- look at his tag, return him to the pen --
A. Yeah.
Q. -- that he wants to go to, or you can take him down to X spot --
A. Yeah.
Q. -- and do the same thing there?
A. Yeah.”

63 Unlike Mr Huefner, Mr Rowland gave oral testimony and was cross-examined. Mr Rowland said that he had never seen a feedlot with gates at intervals as contended for by Mr Carey. He had regularly visited feedlots throughout Australia and the United States making observations, learning and giving advice in these places. Mr Rowland made no mention of the length of the race or the argument that a gate should be installed in the middle of it. His principal objection to the gates was that they would “slow the flow of cattle down and slow the process of movement of cattle down”. His evidence appeared to be predicated, generally, on the assumption that the gates would be closed for most of the time. This, however, was not the case advanced by Mr Carey. His case was put on the basis that the gates would be installed and left open so that access through the races would not be impeded. The gates would only be closed when needed so as to muster cattle in a reduced length of race. Mr Rowland did not take account of this.

64 Mr Rowland said that, were gates to be installed, “you’d still have to go through and close that gate and you’d have to by-pass that animal”. In saying this he appeared to overlook the existence of the grass drainage area. Mr Mansell accepted (which seems quite obvious from the photographs) that a person could ride or walk along the grass area and thereby by-pass any escaped animal in the race without being so close as to disturb it.

65 Towards the end of Mr Rowland’s cross-examination the following exchange occurred:

“I want you to then – Mr Mansell also told us that from the area which is marked X, the horseman – the stockman can get out into the grassed area that seems to be the middle bit there and ride up that area, so if they can get access to that grassed area, a stockman could have rode up adjacent to the lane, got to the area – the gate and closed the gate without having to ride past the beast?
A. Right. It sounds a plausible process.
Q. And of course if the gate had then been shut in that fashion, then either the plaintiff could return back to the X position using the grass area and then get back up the lane and gently hunt the beast up to the gate and confine it or control it there, or another stockman could work his way up to the lane and do that?
A. Sure. Plausible again.
Q. If either of those two scenarios occurred, then it would remove the need for the stockman to pass the beast in the laneway on horseback, is that correct?
A. Yes.
Q. And it would remove the need to pass the beast in the laneway at speed?
A. Yes.”

66 This topic was taken up by counsel for Rockdale in re-examination, but Mr Rowland reiterated his agreement that “if a gate had been 50 metres past this beast, someone could go up outside the laneway to then close the gate”.

67 It is clear from this evidence (and that of Mr Mansell) that the installation of the gate would have avoided the need for Mr Carey to attempt to pass the steer. The gate could have been left open and thereby not impeded the ordinary flow of cattle in the race. It could have been closed without difficulty in the manner I have described and which both Mr Mansell and Mr Rowland accepted.

The installation of gates in sections K to H

68 New sections of pens, known as sections K to H, involving some 80 pens, had been constructed. These pens had access races running alongside them of the same kind as the race where Mr Carey was injured, except, as he explained, “some are a bit longer, some are the same size”. These races had gates midway along their length.

69 Sections K to H appear to have been built before the accident. In this regard the following exchange in the cross-examination of Mr Mansell is relevant:

“Q. Since Mr Carey’s accident I think there have been some other pens built, is that right? Other yards built?
A. No, I don’t think there has since that accident because it was built before Ross’s accident, that new section.
Q. I’m talking about an area that’s referred to as rows H to K?
A. Yeah.
Q. Do you know what I’m referring to?
A. Yeah.”

70 Mr Carey testified that he had used these new gates to block steers from running down the length of the race and to turn the steers to take them back to their home pens.

The duty of care

71 The authority almost automatically cited when considering whether a duty of care is owed by a principal or entrepreneur to an independent contractor is Stevens v Brodribb Sawmilling Company Pty Limited (1986) 160 CLR 16 at 31. The relevant facts in Stevens were described by Mason J at 30 to 31:

“It is equally plain that a relationship of proximity existed between Brodribb and the individual worker sufficient to ground a common law duty of care. Subject to the ultimate control of the Commission, Brodribb had an exclusive licence to cut and take away logs from the logging areas. It allocated fellers, sniggers and truck drivers to specify parts in those logging areas; it required them to work together in teams in an intricate process of extracting timber from the forest and delivering it to the sawmill; and it monitored and co-ordinated the operations through its bush boss. While individual fellers, sniggers and truck drivers may have been responsible for their own safety with regard to carrying out their own functions, they had little choice but to rely on the care and skill of Brodribb in the arrangements which it made for the disposition of the work, and of the care and skill of the persons engaged by Brodribb in the execution of the work.

The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury”.

72 In Stevens the plaintiff claimed that the defendant was negligent in failing to provide appropriate equipment and in failing to supervise and control work operations. It was not a case where it was argued that the system of work was unsafe by reason of the inherently dangerous configuration of the work area. It was also not a case where the control exercised by the entrepreneur over the activities of the contractor was no different to the control it had exercised over him when he was engaged by the entrepreneur as an employee, and no different from that exercised by the entrepreneur over its other employees engaged in the same kind of work. The present case has all these features.

73 It is against the facts of Stevens that the following well known remarks of Mason J at 31 must be understood:

“The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system of work by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb’s ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines”.

74 His Honour makes the point that there is no reason why an obligation to provide a safe system of work should be confined to an employer and, depending on the circumstances, such a duty may be owed by an entrepreneur to an independent contractor. The reference by Mason J to the requirement of a need on the part of the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities was relevant in Stevens, as those matters were expressly raised by the issues in that case. I do not think, with respect, that his Honour was laying down an exhaustive code as to the circumstances under which an entrepreneur may owe a duty of care to an independent contractor.

75 Wilson and Dawson JJ, in Stevens, referred (at 45) to the proposition that an employer had an overriding responsibility to take precautions for the safety of independent contractors where the familiar concepts of proximity and foreseeability in the law of negligence would require the employer to take precautions for the safety of those contractors. Their Honours said:

“There is no reason why those same concepts should not provide a basis upon which it might be found that Brodribb was under a duty of care towards Stevens and we are prepared to assume that it was under such a duty of care, although it seems to us that the extent of the duty would have to take account of the independent functions of the contractors and be something less than that owed by an employer to his employees. To equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstance which differentiates the contractors from employees”.

76 Brennan J (at 47) said:

“An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk … . The entrepreneur’s duty arises simply because he is creating the risk … and his duty is more limited than the duty owed by an employer to an employee”.

77 Deane J (at 50) said that the conclusion that a relationship could be characterised as being one between independent contractors rather than that of employer and employee is not necessarily of decisive significance for the purpose of the question whether a common law duty of care arises. Technical considerations as to whether a person is an independent contractor are not likely to be of critical importance. In regard to whether a duty of care arises, his Honour said:

“What is decisive of that question is the substantive content, rather than the technical characterisation, of that relationship.”

78 In Kolodziejczyk v GrandviewPty Limited [2002] NSWCA 267 Heydon JA (with whose judgment I agreed) said that, in Stevens, Mason J did not recognise that there was a duty of care owed to all independent contractors and that the duty recognised by Mason J only arose in the category of cases discussed by him. In Kolodziejczyk, the plaintiff’s case was based on the argument that a ladder from which he had fallen was inherently unsafe and scaffolding should have been provided by the defendant entrepreneur. Heydon JA considered that the ladder was not unsafe and therefore there was no obligation on the defendant to supply scaffolding. His Honour pointed out that the plaintiff contractor had been engaged to apply cladding and, importantly, no care and skill on the part of the defendant affected how that cladding was to be undertaken. Hence, the defendant owed no duty of care to the plaintiff. Heydon JA’s comments on Mason J’s judgment in Stevens have to be seen in this context.

79 The judgments of Wilson and Dawson JJ and Deane J in Stevens are authority for the proposition that an entrepreneur may owe a duty of care to an independent contractor when, according to the general law of negligence, the circumstances are such that a duty arises. The existence of the duty is not conditional on the existence of any particular factual element. It is the substantive content of the relationship between the parties that is decisive. As it was put by Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 194 ALR 337 at 375, albeit in relation to a different context, the “totality of the relationship between the parties … is the proper basis upon which a duty of care may be recognised.”

80 In Climaze Holding Pty Ltd v Dyson (1995) WAR 487 the legal issues that arose were not dissimilar to those in this case. The Full Court of the Western Australian Supreme Court held that the entrepreneur in that case owed a duty of care to the independent contractor.

81 Rowland J said (at 490):

“The modern law of negligence tends to look beyond predetermined or consensual relationships. It looks to see whether between one person and another there is a relationship of proximity which will enliven ‘a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another’ – per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ discussing the absorption of the rule in Rylands v Fletcher (1868) LR 3 HC 330 by the ‘principles of ordinary negligence’ in Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 at 556 to 557.”

His Honour went on to say:

“I agree with Steytler J that the first respondent was, for the purposes of contract, an independent contractor to the appellant, but that his method or system of work was known by, and effectively dictated by, the appellant, which gave rise to a relationship of proximity and the duty of care which, in my opinion, was breached”.

Recent developments have resulted in there being a question mark in regard to the significance of the element of proximity. Nevertheless, the substance of the observations of Rowland J remains pertinent.

82 Steytler J (with whom Malcom CJ agreed) said at 497:

“The learned trial judge found, as I have said, that the appellant was subject to a duty to provide a safe system of work for the first respondent regardless of whether he was or was not an independent contractor.
There is, of course, no reason why the concepts of proximity and foreseeability should not provide the basis for a duty of care which a principal might owe to an independent contractor although, in assessing the extent of the duty, a court would have to take into account, where relevant, the fact that the person to whom the duty is owed is an independent contractor rather than an employee, which fact will often have the consequence that the extent of the duty will be less than would otherwise have been the case”.

83 See also Rauk v TranstatePty Limited (2001) Aust Torts Reports 81-592, upheld on appeal in [2002] NSWCA 222, where it was recognised that an entrepreneur owed a duty of care to an independent contractor despite there being no need for the entrepreneur to organise activities. See also Munkman On Employer’s Liability, Hendy and Ford, 13th ed at para 4.48 where the learned authors state:

“If a controlling undertaking occupies the site, fails to select competent co-workers or to adopt a safe overall system, it should be liable just as would be an employer in respect of such failing”.

84 In my opinion, nothing said by Mason J or Brennan J in Stevens, or Heydon JA in Kolodziejczyk prevents the general law of negligence imposing on an entrepreneur a duty of care owed to an independent contractor. Such a duty may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations (not applicable in Stevens and Kolodziejczyk) such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present.

85 Mr Hewitt placed some reliance on Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 in submitting that Rockdale did not owe Mr Carey a duty of care, but I do not think that it is of assistance on this issue as Heydon JA (with whom Meagher JA and Foster AJA agreed) dealt with the matter on the basis that it was not necessary to determine whether the plaintiff was an employee or an independent contractor as “it was not shown that a characterisation of the relationship as one of employment would have led to any different result before the Master, or would lead to any different result in this Court” (at [56]).

86 During argument on appeal, reference was made to Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 where Brennan and Dawson JJ at 30 referred to the principle that:

“[W]here an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning to a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind”.

But the present is not a case where an occupier is alleged to be liable for damage suffered by an invitee by reason of an unusual danger on the premises. This is a case where liability is said to arise from the failure to provide a safe system of work. Thus, Rockdale’s duty of care does not stem merely from being the occupier of the feedlot ( cfState Rail Authority of New SouthWales v Watkins [2001] NSWCA 405).

87 Rockdale first engaged Mr Carey as an employee to carry out work that involved some risk of injury. It cannot be disputed that in that capacity, Rockdale owed Mr Carey a duty of care. Under that duty, Rockdale was required to provide Mr Carey with a safe system of work. In 1997, no doubt for economic reasons that were thought to benefit both, Mr Carey was engaged as an independent contractor, and not as an employee. It is common ground that Mr Carey was a genuine independent contractor. But it is not in dispute that the nature of his work and his de facto subordinate relationship to those who, at the feedlot, had always told him what to do, remained unaffected.

88 Mr Carey had no control over the configuration of his workplace. That was in the sole control of Rockdale. He had no control over where he had to work and what work he had to carry out. He was instructed by Rockdale as to these matters including the system of work that he needed to follow.

89 Mr Carey’s position as independent contractor was not comparable to that, say, of an electrician or plumber or roof tiler, who enters premises of an occupier to carry out skilled work, and where care on the part of the occupier has no effect on how that work is carried out. At the relevant time, Mr Carey was a permanent fixture in Rockdale’s work force. Unlike the ordinary electrician or plumber or roof tiler, he had no say in where he worked and what work he carried out. In these respects he was under the control of Rockdale and was as reliant on Rockdale for his safety as any employee.

90 Although he was an independent contractor, Mr Carey worked for no one apart from Rockdale and had done so for many years. The bargaining power of the parties was not equal. Mr Carey was as vulnerable to potential misuse as any employee. In Perre v Apand Pty Limited (1999) 198 CLR 180 the vulnerability of a specific plaintiff was regarded, generally, as being an important factor in determining whether a duty of care arises.

91 A defendant’s control over the conduct that gives rise to the risk, a defendant’s knowledge of the risk, and the relative inability of plaintiffs to protect themselves are also important factors in determining whether a duty of care arises (see, in particular, McHugh J in Perre v Apand Pty Limited at 226 to 229).

92 In my opinion, in the particular circumstances of this case, to the extent that the configuration of the work site caused there to be a safety risk in the work Mr Carey was directed to carry out, Rockdale came under a duty to use reasonable care to avoid or minimise that risk. That is to say, Rockdale was required to exercise reasonable care to avoid or minimise the risk of injury caused by the configuration of the work site. This involved prescribing a safe system of work.

93 As I have pointed out, there is no issue of supervision or directions or provision of equipment that arises in this case. To this extent, the differences between contractors and employees are not presently relevant. In these circumstances, the differences between contractors and employees do not affect the obligation of an employer or entrepreneur to provide a reasonably safe working environment.

94 Therefore, in the particular circumstances of this case, the relevant duty of care was akin to that which would have been owed to Mr Carey had he been an employee, that being the “duty to take reasonable care to avoid exposing … employees to unnecessary risks of injury”: Hamilton v Nuroof (WA) PtyLtd (1956) 96 CLR 18 at 25 cited with approval in Bankstown FoundryPty Ltd v Braistina (1986) 160 CLR 301 at 307-8. In Braistina Mason, Wilson and Dawson JJ noted at 308 that “it has long been recognised that what is a reasonable standard of care for an employee’s safety is ‘not a low one’”.

95 Accordingly, I do not think that Sorby DCJ erred in saying that the relevant duty of care owed by Rockdale to Mr Carey was “probably as high as that between employee and employer”. I accept that such equivalence would not ordinarily arise, but for the reasons I have explained, the relevant duty in this case would arise irrespective of whether the worker was an employee or an independent contractor, and, in my view, the content of that duty would not differ.

Did Rockdale breach the duty of care?

96 I am conscious of the need to avoid the application of all-knowing hindsight in determining whether the risk of injury to Mr Carey was foreseeable. I remind myself of strictures such as those expressed by Windeyer J in Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 397 to 398:

“The reasonable man does not hear anyone on the Clapham omnibus. He is a man who notionally stood in the shoes of the defendant and had such knowledge, and capacity for care and foresight, as that defendant actually had and in addition such as a reasonable man in his position is expected to have … . He is not a seer who can foretell future occurrences that are quite unlikely according to the natural and ordinary course of events. Happenings that were fortuitous, in the sense that no reasonable man would have thought of them as within the range of possible consequences, cannot be said to have been reasonably foreseeable. And knowledge after the event, when it is easy to be wise, cannot show that the event was foreseeable”.

97 Taking these admonitions into account, and recognising that foreseeability is a value judgment in regard to which differences are likely to arise, I am nevertheless firmly of the view that the dangers of the system of work that Rockdale put in place were foreseeable. I consider that Sorby DCJ was entirely correct in this regard.

98 I have come to this conclusion despite Mr Carey’s own testimony to the effect that the accident was quite unexpected. The following exchange needs to be noted:

“Q. What I’m putting to you though is that what this cow did was nothing unusual or unexpected?
A. It was actually, cause he cut in front of me when I got right to him instead of taking off like most of them do.
Q. So this was a very unusual circumstance?
A. Well it only happened once and I’ve been doing it for eight, nine years.
Q. So it was indeed a highly unusual thing to happen?
A. Yeah.
Q. Nothing similar to that has happened in your experience before?
A. No. I haven’t come down and hurt myself before.
Q. Beg your pardon?
A. I haven’t come down and hurt myself that bad before, no, nothing like that’s happened.
Q. No, I’m talking about what the beast did?
A. Yeah, no, I hadn’t had that before.”

99 One needs to focus on the precise cause of the accident. That was the act of the steer in suddenly turning and cutting in front of Mr Carey when he “got right to him”, and the fact that the steer did not “[take] off like most of them do.” It was not unexpected that the steer would suddenly dash away. That often happened. It was perfectly foreseeable that the steer would take fright when suddenly seeing the rider attempting to speed past him. Normally, however, cattle plunge away in directions that avoid the oncoming rider. The fact is that the only unexpected action was that the steer turned in the direction that it did.

100 I repeat Mr Huefner’s unchallenged testimony that “it is not uncommon for cattle to lunge or shy sideways, but it would not be predictable …”. While it might be expected that a steer would attempt to avoid a collision, it is not uncommon that it might lunge in an unpredictable direction. Plainly, such a reaction might result in serious injury. The well-known nature of cattle is such that the risk of injury was inherent in the Rockdale system of work.

101 In my opinion it was plainly foreseeable, not least to the operator of a giant feedlot, that a steer might panic when seeing a rider coming towards it at some pace, and might well lunge in such a way that it does not miss the rider, but bumps into him.

102 Rockdale did not suggest that the cost of installing the gates was likely to be prohibitive or even a factor that should be taken into account in determining whether or not it would have been reasonable to install gates of the kind suggested by Mr Carey. Indeed, as I have mentioned, in the new sections of the feedlot, that is, in sections K to H, such gates have been installed.

103 The mere fact that the accident was reasonably foreseeable and that the installation of a gate was an inexpensive precautionary measure, does not inevitably lead to the breach of a duty of care. As Heydon JA said (at [83]) in Van der Sluice:

“It is a fallacious reading of Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 to 48 to conclude that it holds that if the risk of injury is reasonably foreseeable and removal of that risk by simple and cheap measures is possible but not undertaken, there is a breach of duty. Mason J left open as the response of a reasonable person the course of doing nothing instead of adopting the simple and cheap measures: Council of the Municipality of Waverley v Lodge [2001] NSWCA 439 [at 29]”.

104 In supporting the argument that Rockdale was not required to do anything, Mr Hewitt emphasised the fact that Rockdale had a very large turnover of animals and there was no evidence that an accident of this kind had ever occurred in the past. Mr Carey himself regarded the steer’s conduct as unexpected.

105 The matters raised by Mr Hewitt have force, but in the end I am not persuaded that Sorby DCJ was wrong in finding that Rockdale should have installed a gate in the race.

106 The need to exercise reasonable care required Rockdale to have a proper system of work in place. Rockdale did have a system in place. I have pointed out that in the Accident/Incidence Report Rockdale asserted that it had a “safe” system of work, that Mr Carey had been trained in the system, and that at the time of the accident he had followed that system. But the Accident/Incidence Report acknowledged that Rockdale was “unable to prevent a 100% accident, when work practices were being followed”. This is a tacit recognition that its own system of work was unable to avoid accidents caused by stockmen attempting to speed past steers, who have escaped into races, so as to be able to herd them to the requisite place.

107 The risk of harm, in my view, was real and obvious and the harm that could result was potentially serious. That a steer would act unpredictably was common knowledge. Unpredictable behaviour could lead to serious injury. Reliance on a steer to do the right thing (that is, in a state of panic, to swerve past and not collide with the horse and rider) is a tenuous foundation for the proposition that nothing need be done. Cheap remedial measures were available.

108 Regard must be had to the practical implications of installing a gate midway up the race. Firstly, the objections raised by Mr Rowland based on impeding traffic in the race are without real substance. The gate would be open most of the time and closed only when needed. Secondly, the gate would have considerable utility when an escaped steer, having its home pen in the southern half of the race, is found in that half. This was the case with the steer that Mr Carey attempted to pass.

109 The question arises whether consideration should be given to those situations where an escaped steer is found in the southern half and is later discovered to have its home pen in the northern half, or where a steer is found in the northern half. The difficulty in dealing with these scenarios is that they were not canvassed at the trial or on appeal. Mr Carey’s case was that the installation of a midway gate would make the stockman’s task safer. He argued that such a gate would obviate the necessity to pass an escaped steer at speed, and evidence was led to explain how the installation of a gate would have this effect. Rockdale fought the case on the basis that the installation of a gate midway along the race would be impractical, as it would impede traffic. It did not contend that the gate would be impractical because it would not provide any benefit in the scenarios I have described. There was a complete absence of evidence and argument on this aspect of the matter. In these circumstances, I think it inappropriate for the court to attempt to arrive at conclusions by way of speculation in regard to the scenarios in question.

110 Regard must be had to the fact that gates were installed midway up the races in sections K to H. I have referred to the evidence that they were installed before the accident; even if they were installed thereafter, their utility is demonstrated by the fact that Rockdale considered it necessary to install them. It is true that according to Mr Mansell the purpose of the gates was not to prevent harm to stockmen rounding up escaped steers but rather to assist in mustering operations generally. But I do not consider that to be a reason for not installing them in other races. The gates in sections K to H plainly have the benefit of protecting the stockmen from the real possibility of being injured by having to ride past escaped steers at speed. Mr Carey used them for this purpose.

111 Rockdale apparently considered the gates in sections K to H to be necessary because of the length of the races in those sections. There was evidence that some were as long as 1000 metres. But Mr Carey said that some were of the same length as the race in which he was injured. According to Mr Carey, all the races in sections K to H had gates installed midway up their length. The fact that Rockdale considered it necessary to install gates in other races of the same length as the race where the accident occurred supports the argument that, for Rockdale to take no action to make that race safer, was a breach of its duty of care.

112 I am not persuaded by Mr Rowland’s evidence that he had seen no gates halfway up races in Australia and the United states. After all, he did not see the gates that had been installed in sections K to H. He appeared almost to be taken by surprise by the proposition that the gates would be left open and only closed when steers escaped. It seemed to me that, in giving his report and in his evidence in chief, he did not realise that Mr Carey’s case was that the gates would be left open until there was specific need for them to be closed. In any event, the vulnerability of contractors such as Mr Carey, the degree of control exercised by Rockdale over the work site and the system of work, the obvious risk of harm and the seriousness of the harm that could result from the work practice that Rockdale directed its employees and contractors to follow, in my view, called for positive remedial action on its part.

113 Accordingly, I am not persuaded that Sorby DCJ erred in finding that Rockdale should have installed gates midway up the race where Mr Carey was injured.

Inadequate reasons

114 Sorby DCJ noted that Mr Rowland said that, if gates were installed in the races, the closed gates might impede the movement of stock significantly. He also noted that Mr Rowland had never seen a feedlot where the laneways were subdivided at all. His Honour did not comment further on this evidence. It was submitted on Rockdale’s behalf that Sorby DCJ gave inadequate reasons for not accepting the evidence of Mr Rowland.

115 Mr Rowland’s evidence that closed gates might hinder the movement of stock carries no weight in regard to the issues that arise in this case as it is answered by the fact that the gates would be left open and only closed when it was necessary to use the gates for mustering cattle in the races. This, after all, is what was done with the gates in sections K to H. These matters were not really in dispute and in my view are so obvious that it was not necessary for Sorby DCJ to mention them in his reasons.

116 Mr Rowland’s testimony that he had never seen feedlots where the laneways were subdivided was of relevance, but Sorby DCJ, by inference, discounted that testimony. In my view, it is apparent from his Honour’s reasons that he did so largely by reason of the obviously dangerous nature of the system of work that Rockdale required Mr Carey to carry out. In other words, it is implicit from his Honour’s reasons that he considered that the potential for harm was so strong, and the likely harm was so serious, that the fact that feedlots did not normally have gates of the kind contended for by Mr Carey was an insufficient ground for Rockdale to refrain from installing them.

117 I do not think that there is any substance in this ground.

Causation

118 Had a gate as contended for by Mr Carey been installed, it would not have been necessary for him to attempt to get past the steer at speed. The presence of the gate would have avoided the accident. In my view causation was established.

The cross-appeal

119 Sorby DCJ rejected the proposition that to gallop past the steer was negligent conduct on the part of Mr Carey. Rockdale did not contend that his Honour was wrong in this respect. Rockdale also did not contend that Mr Carey was negligent in approaching the steer at too rapid a pace. This attitude on the part of Rockdale was quite understandable as the weight of the evidence, and common sense, were against these arguments.

120 In reliance on the evidence of Mr Mansell, however, Sorby DCJ held that Mr Carey should not have attempted to pass the escaped steer in the narrow section of the race. He held that Mr Carey was guilty of contributory negligence in this respect and he assessed Mr Carey’s contributory negligence at 40%. The cross-appeal is against the order that Mr Carey’s damages be apportioned.

121 The relevant evidence of Mr Mansell was as follows:

“Q. … Do you take the view that it’s dangerous to canter past a steer in that laneway?
A. Depending on what part of the lane because those lanes go like that.
Q. So you take the view that at the thinner part of the lane it’s dangerous to --
A. I take that view that it is dangerous if you’re going too quick at the narrow point.
Q. Is a canter too quick in your view?
A. If you can see your way clear and you think it’s safe, a canter would be – you’d get away with that I think.”
Q. So you make the decision to see whether you can see your way clear?
A. Yeah, on your approach. If the steer’s happy to just – if you can pick your steer and he’s happy on the fence then you go around him.”

Sorby DCJ drew the inference from this evidence that it would have been safer to pass the animal at a wider point in the race.

122 Whether passing the animal at a wider point would have removed the risk (or removed it to a significant degree) was never fully explored in evidence. Apart from this passing reference by Mr Mansell, and the unchallenged testimony of Mr Huefner, there was no other evidence that related to this issue. What is of particular significance is that it was never put to Mr Carey in cross-examination that it was unsafe to pass the animal where he did, or that he should have passed it where the race was wider. He was never given the opportunity of dealing with the proposition.

123 It may well not have been practically possible for Mr Carey to have caused the steer to walk slowly and placidly to the north until it reached a section of the race that was seven metres wide and at that stage suddenly, and in safety, to accelerate past the animal. Mr Carey and Mr Mansell were not asked any questions about this, and nor were any other witnesses. Mr Carey, when testifying as to the general behaviour of cattle, explained that:

“If you casually just canter up there, they’ll run in front of you and they’ll be gone. So then you’re upsetting them by – and then you have to get faster to get around them to bring them back down”.

Mr Mansell was of a similar view. This casts some doubt on the practicality of the proposition.

124 Moreover, assuming that a stockman could herd a steer so that it walked slowly to the wider section of the race (presumably by driving it slowly alongside the fence), the court is not in a position to know whether it would then be practically possible for the stockman (who would then be in close proximity to the animal) suddenly to accelerate past it in reasonable safety. Mr Mansell expressed the view that it was dangerous to pass a steer “if you’re going too quick at the narrow point”. He said nothing about whether it was practically possible to herd the steer to a wider section of the race and to pass it there at a rapid speed. This issue was not investigated at the trial and no evidence was directed to it.

125 Accordingly, I consider that Mr Huefner’s unchallenged testimony that a seven metre wide race would also be unsafe (for the standard practice) must be accepted.

126 In the circumstances I consider that the cross-appeal should be upheld. I do not think that Mr Carey was guilty of contributory negligence.

Conclusion

127 I propose the following orders:

(a) Application for leave to appeal granted;

(b) Appeal dismissed with costs;

(c) Application for leave to cross-appeal granted;

(d) Cross-appeal upheld;

(e) The judgment of Sorby DCJ be set aside and in lieu thereof there be a verdict and judgment for Mr Carey in the sum of $134,943.15.

(f) Rockdale pay Mr Carey’s costs of the cross-appeal.

128 McCOLL JA: I agree with Ipp JA.

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Last Modified: 06/17/2003