State of New South Wales v Buckland; Katena Pty Ltd v Buckland
Case
•
[2000] NSWCA 72
•31 March 2000
No judgment structure available for this case.
CITATION: State of New South Wales v Buckland & Ors; Katena Pty Ltd & Ors v Buckland & Ors [2000] NSWCA 72 FILE NUMBER(S): CA 40461/98; 40518/98 HEARING DATE(S): 6 & 7 March 2000 JUDGMENT DATE:
31 March 2000PARTIES :
Katena Pty Ltd & Ors - Appellant (40518/98)
State of New South Wales - Appellant (40461/98)
George Sackville Cotter Buckland & Ors - Respondents (40461/98)
George Sackville Cotter Buckland & Ors - Respondents (40518/98)JUDGMENT OF: Giles JA at 1; Rolfe AJA at 12; Foster AJA at 147
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :DC 1/95 (Condobolin) LOWER COURT
JUDICIAL OFFICER :Phegan DCJ
COUNSEL: J S Coombs QC & D L Ronzani - Appellant (40461/98)
M L D Einfeld QC & T J Morahan - Appellant (40518/98)
B M J Toomey QC & N M Carney - Respondents (40461/98 & 40518/98)SOLICITORS: I V Knight, Crown Solicitor - Appellant (40461/98)
Justin F O'Sullivan & Edgar, Dalby, Queensland - Appellant (40518/98)
Mathews Williams, Condobolin - Respondents (40461/98 & 40518/98)CATCHWORDS: NEGLIGENCE - harvester brought from area where Parthenium weed prevalent - approved to enter NSW by government inspector - used on NSW farm - paddock developed Parthenium weed infestation - whether from use of harvester - whether negligence in approving entry of harvester into NSW - whether negligence in use of harvester - whether negligence causally related to infestation - finding that weed infestation caused by use of harvester upheld - negligence in approving entry of harvester into NSW not causally related to weed infestation - (by majority) negligence in use of harvester was conjectural and not proved - distinction between conjecture and inference and whether facts permitted inference of causally related negligence considered. D CASES CITED: Rylands v Fletcher (1866) LR 1Ex 265
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Jones v Great Western Railway Co (1930) 47 TLR 39
Carr v Baker (1936) 36 SR (NSW) 301
Caswell v Powell Duffryn Associated Collieries Ltd (1940) AC 152
Luxton v Vines (1952) 85 CLR 352
Jones v Dunkel (1959) 101 CLR 298
Bonnington Castings Ltd v Wardlaw (1956) AC 613
St George Club Limited v Hines (1961-1962) 35 ALJR 106
Seltsam Pty Ltd v McGuiness (2000) NSWCA 29DECISION: Appeal upheld and judgment for the appellants; the respondents pay the appellant's costs of the hearing and of the appeal and have a certificate under the Suitor's Fund Act if otherwise entitled.
THE SUPREME COURT
CA 40461/98 & 40518/98
OF NEW SOUTH WALES
COURT OF APPEALDC 1/95 (Condobolin)
FOSTER AJA Friday 31 March 2000
ROLFE AJA
GILES JA
STATE OF NEW SOUTH WALES v BUCKLAND & ORS
KATENA PTY LTD v BUCKLAND & ORS
JUDGMENT1 GILES JA: I have had the benefit of reading the respective reasons of Rolfe AJA and Foster AJA in draft. My conclusions, and the grounds for them, can be stated briefly in the light of those reasons.2 The first issue is causation, on which their Honours are agreed in their result. 3 On the evidence canvassed by their Honours, it was open to the trial judge to find that the 1994 infestation of Parthenium weed in the 650 paddock came from seed distributed by the second header, being seed in some manner emanating from within the machine as distinct from harvested from the paddock as it operated. To the extent that their Honours take different paths to upholding the trial judge on causation, I respectfully prefer that taken by Foster AJA. The trial judge was entitled to find as he did, and in my view correctly so found. 4 The second issue is negligence, on which their Honours differ in the result. 5 The trial judge found that the particular work apt to dislodge seed within the header had not been proved, but that work “of some kind” had been done which had dislodged the seed. I will assume that this was so. 6 However, the dislodgment of seed may or may not have involved negligence. Whether there was negligence in doing the work in such a way that seed was dislodged, as distinct from leaving the seed safely quarantined within the machine, depended on what work was done and how it was done. Whether there was negligence in not undertaking a sterilisation process depended on what work was done, how it was done and the reasonably perceived risk of dislodgment of seed. It is plain enough that, in general terms, some work would be perceived as bringing a risk of dislodgment of seed if not done carefully, but for all that appears other work would not be so perceived although in fact there was dislodgment. Once the particular work sought to be proved is put aside, there was no evidence enabling the step from work dislodging the seed to the negligence found by the trial judge, namely, failure to take adequate steps to prevent the escape of seed from the header. 7 The line between inference and conjecture may not be easy to recognise, but the distinction is clear: see the authorities cited by Rolfe AJA. It is possible that the Schafferius outfit was negligent, but I do not think that the evidence rose above possibility. The difficulty in inferring negligence from the fact of dislodgment of seed, which is really what the trial judge did, is underlined by the very small quantity of seed thought to have been involved, perhaps only half a thimble full. 8 Perhaps for this reason, on appeal the relevant negligence was said to be not the act of working on the header or whatever work was done on it. Rather it was submitted that the negligence was using the machine after non-negligent work had been done on it. This does not take the matter any further. It was not negligent to use the machine after work had been done on it unless there had been relevant negligence in doing the work or in not undertaking a sterilisation process. Were it otherwise a machine would quickly become unusable, or useable only at risk of strict liability. The standard of care might have been high, but liability was not strict (Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520). 9 It follows that I do not think that the Schafferius outfit should have been found liable. It is unnecessary to decide whether any liability would extend beyond Katena.
The Schafferius outfit
10 I agree that the negligence of the State was not in law causative of the infestation of the 650 paddock, including that the State was not under an absolute duty to ensure that there was no Parthenium seed in the header. It follows that I do not think that the State should have been found liable. 11 I agree with the orders proposed by Rolfe AJA.
The State of New South Wales
12 The plaintiffs/respondents, for whom Mr B.M.J. Toomey of Queen’s Counsel and Mr N.M. Carney of Counsel appeared, were, at all material times, the owners of two farming and grazing properties near Condobolin in New South Wales known as “Koorangie” and “Waverley”, on which they conducted the business of farmers and graziers. The principal crops grown were wheat and oats. 13 This case, which has only been heard thus far on the issue of liability by his Honour Judge Phegan in the District Court at Forbes, is concerned with the alleged consequences of the harvesting of oats on 3 December 1992 in portion of a paddock on “Waverley” known as the 650 paddock. The harvesting was carried out pursuant to a contract entered into by the respondents. There was an issue as to whether the other contracting party was the first defendant/appellant, Katena Pty Limited, (“Katena”), which was incorporated on 1 August 1985 and which carried on business as a contract harvester under the name of Arcadia Valley Farming Company, (“Arcadia”), or two of the four third defendants/appellants, Mr Peter Bryant Schafferius and Mr Robert Dean Sawley, who had carried on the same business in partnership under that name prior to Katena’s incorporation and to whom I shall refer, as did his Honour, as “the Schafferius outfit”. This was, no doubt, because Mr Schafferius was in charge of the harvesting. Mr Sawley had nothing to do with it. The other two third defendants/appellants were their wives. All the third defendants/appellants were directors of Katena. However, it is no longer suggested that any liability attaches to Mrs Schafferius or Mrs Sawley. Mr M.L.D. Einfeld of Queen’s Counsel and Mr T.J. Morahan of Counsel appeared for these appellants.
ROLFE AJA:
Introduction
(a) The Parties
14 The respondents alleged, in various ways to which I shall refer, that Katena and/or the Schafferius outfit used two John Deere 9600 headers to harvest the oats and that by reason of negligence and/or breach of contract the one described as “the second header” spread seed of the highly noxious Parthenium weed in that portion of the 650 paddock on which it harvested, leading to an infestation of that weed in that paddock, which was discovered by Mr Buckland Senior in April 1994. They sought to make Katena and/or the Schafferius outfit liable for the damage they allegedly suffered as a result of that infestation. 15 They further alleged that the State of New South Wales, (“the State”), for which Mr J.S. Coombs of Queen’s Counsel and Mr D.L. Ronzani of Counsel appeared, was liable to them for damages because, in essence, it allowed the second header to enter this State from Queensland when Parthenium weed seed was in it and failed to make a proper inspection of it to ensure that such seed was not in it.
(b) The Occurrence
16 His Honour’s finding in relation to Katena and the Schafferius outfit was:-
(c) The Trial Judge’s Ultimate Findings
17 He held, for the reasons to which I have just referred, that Katena, Mr Schafferius and Mr Sawley were liable to the respondents in negligence, and added that the lack of care on which that finding was based also constituted a breach of the implied term to take reasonable care in the contract “between the plaintiffs and the first defendant and/or the third defendants, Peter Schafferius and Robert Dean Sawley”: Red Appeal Book p.55. 18 In view of the fact that it was accepted by the parties at trial, as his Honour noted, that Mr Schafferius and all the operators were employed by Katena, I do not see how his Honour could have come to this conclusion. Either Katena was vicariously liable, or, in some unexplained way, Mr Schafferius and Mr Sawley were liable in negligence. In my opinion, on the findings made, they could not have been liable in negligence, which was the only basis on which they were held to be liable. If there was negligence, it was that of Katena by those through whom it acted. 19 In relation to the State, his Honour found:-
“On the findings of fact outlined above, I am satisfied that work of some kind was done on the second header on the morning of 3 December 1992 before the header proceeded to assist in the completion of the stripping of the 650 paddock and that in the course of that work, parthenium seed was dislodged and subsequently spread as the header worked the paddock. I find that there was negligence on the part of the employees of the defendants, in failing to take adequate steps to prevent the escape of parthenium seed from the header, having worked on the header”: Red Appeal Book p.54.
20 It is against these findings that all the appellants have appealed. The respondents, in addition to seeking to uphold his Honour’s reasons, have relied upon Notices of Contention alleging that Mr Einfeld’s clients were under a duty to ensure that the second header was free of Parthenium seed before bringing it onto the respondents’ property, which duty they breached; and that the State was under a duty to ensure that headers coming from known Parthenium weed infested areas outside New South Wales were free of Parthenium seed before being allowed to work on New South Wales properties, which duty it breached.
“It is therefore more likely than not that a thorough inspection, sufficient to meet the high standard which the danger of infestation and the second defendant’s own policy of eradication required, would have uncovered the seed which was subsequently dislodged by employees of the first and third defendants. In that sense, the second defendant’s negligence materially contributed to the harm caused by the infestation to the 650 paddock ( McGhee v National Coal Board [1972] 3 All ER 1008).
His Honour considered this result followed the “common sense” approach demanded in March v E. & M.H. Stramare Pty Limited (1991) 171 CLR 506, and:-
“It would be a most anomalous result if, in this case, for reasons of causation, the second defendant, who was responsible for a demonstrably lax system of inspection, escaped liability while the first and third defendants were held liable for a momentary, albeit negligent, lapse in otherwise highly responsible and thorough practices in the maintenance and cleaning of their machines. I find the second defendant liable to the plaintiffs in negligence, arising out of the negligent exercise of their statutory powers.”
(d) The General Nature Of The Appeal
21 From 1988 to 1992 Katena was engaged by the respondents each year to harvest their crops. The respondents denied that they were aware of Katena’s existence, the evidence being that all accounts and other documentation issued in the name of Arcadia. In late November and early December 1992, Katena carried out the wheat and oats harvesting with its own equipment, which included the two headers supported by a tractor-driven chaser bin and service vehicle. In April 1994 Mr Buckland Senior discovered a heavy infestation of weed in the 650 paddock, which he could not identify, but which was quickly found to be Parthenium weed. It is prevalent in Queensland and authorities in other States, including New South Wales, have tried to prevent its entry to them. 22 Katena was based near Rolleston in Central Queensland. It commenced contract harvesting in that general area each year and worked its way south through Queensland and, thereafter, into New South Wales. It used the equipment to which I have referred. It followed this practice in 1992. Whilst working in Queensland, it harvested crops infested with Parthenium weed with the consequence that during the harvesting, Parthenium seed was harvested or disturbed and some of it probably lodged in various parts of the headers. 23 The seed is contained in quite small pods. It is very small and, when released from the pods, can hardly be seen by the naked eye. The evidence was that an amount as little as about half a thimble full, would have been sufficient to cause the infestation in the 650 paddock. 24 Parthenium weed is a notifiable noxious weed under the Noxious Weeds Act 1993 (NSW). It has a number of highly detrimental effects on land, livestock and humans, which are set out at p.4 of the judgment under appeal sufficiently for present purposes and were not in issue. 25 Because of the desire by New South Wales authorities to ensure, so far as possible, that neither the weed nor its seed was brought into New South Wales, legislation required “any prescribed agricultural machine”, which had worked in Queensland and which by definition included the headers, to be inspected at the New South Wales/Queensland border to receive a permit before travelling into New South Wales: Section 475J of the Local Government Act 1919 pursuant to which Ordinance 50 was made in 1984. Clause 6(1) of the Ordinance prohibited the transport, movement or use of any prescribed agricultural machine from Queensland into New South Wales unless a permit was issued pursuant to sub-clause (3), which required the machine to be made available for inspection during daylight hours at specified border crossings of which Mungindi was one. Clause 6(4) provided:-
(e) Some More Background
26 After finishing harvesting in Queensland, Katena’s harvesters were presented at the Mungindi checking station and inspected by Mr Phillip Billing, who was employed by the State for that purpose. On 9 November 1992, Mr Billing issued a permit in respect of the two headers and a white field bin, all of which were identified by model and/or serial numbers. This allowed them to enter New South Wales. No such permit was required for the service vehicle. 27 Thereafter Katena carried out harvesting on several properties in northern New South Wales before moving to the respondents’ properties in late November. Most of that harvesting was finished at about 3 am or 4 am on 2 December 1992. At about 8 am or 9 am on 3 December 1992 the only harvesting remaining was the oats in the 650 paddock. This was a poor crop, which was described as “miserable” and which had only grown to about 12 inches in height, but was leaning over. The ground cover was relatively sparse. The respondents initially thought it would be uneconomical to harvest it, but then decided to harvest some. Mr Buckland Senior accompanied the driver of one header, “the first header”, to identify the area to be stripped. The first header harvested two rows around the area Mr Buckland designated, thus marking out the portion of the crop to be harvested. Thereafter it was driven through the area thus cutting the designated area into two and it continued to work on the larger, which comprised about two thirds of the designated area. 28 The second header was brought to the road beside the 650 paddock, but it did not start harvesting until about an hour after the first header. Before it did men, whom it was inferred were employees of Katena, were seen clambering on it. His Honour held that there was no evidence as to what they were doing, but he made a specific finding, on a matter which had been a very real issue at the hearing, that they did not change any parts on it. This finding was not challenged on appeal. There was also evidence, to which his Honour did not refer, that it was necessary to service the headers each morning prior to their commencing work and to make adjustments to them before they could work on oats after harvesting wheat. The uncontradicted evidence was that the second header was serviced on the morning of 3 December 1992 some distance from the 650 paddock. Whilst this was not a matter of argument on the appeal it showed that there may well have been two types of work performed on the header before the men were seen on it. The respondents’ case at trial, in this regard, was that the men were carrying out repairs to a shaft, and in doing so they disturbed the Parthenium seed, which subsequently fell from the second header. This was the case his Honour rejected. No case was sought to be made at trial or on appeal that the servicing and/or adjustment work would have disturbed or dislodged the seed. 29 The second header commenced harvesting in the 650 paddock and both headers were engaged for a total of six hours in that work, for which time Katena charged the respondents. The second header firstly harvested the smaller area and then worked in tandem with the first header on the larger area. The paths taken by the first header are designated by a pink colour (described in the evidence as red), and by the second header by a yellow colour: see Exhibit D and the evidence of Mr Buckland Senior at Black Appeal Book pp.4 and 5. 30 Another matter heavily in issue at trial was whether Katena had cleaned the headers properly before presenting them for inspection at the border. His Honour found that they had. He said that the methods adopted were consistent with the best practices in the industry at the time. He was also satisfied that compliance with best practice could not guarantee a “Parthenieum-free header”, “leaving open the possibility that parthenium seed could have remained lodged in various parts of the header which could not be accessed by ordinary cleaning even as thorough as that undertaken by” Katena. These findings were not challenged on appeal. 31 The evidence was that the method of cleaning required to obtain a permit to enter New South Wales was not as thorough as that required to take a header into Western Australia, where it was necessary to strip the header down completely and clean every part, but that even that type of cleaning would not guarantee the removal of all Parthenium seed.
“4. A border inspector shall inspect a prescribed agricultural machine produced for inspection under subclause (3) and shall issue a permit only if -
(a) where the border inspector suspects that Parthenium weed is or may be present on or in the machine, the person seeking the permit treats the machine, in accordance with the border inspector’s directions, so as to remove any Parthenium weed to the satisfaction of the border inspector;
(b) the border inspector is satisfied that the machine is free of Parthenium weed; or
(c) the border inspector is of the opinion that, in the special circumstances of the case, it is proper to issue a permit.”
32 There were a number of issues fought at trial, and I have stated the results of the two principal ones. The respondents by their Amended Ordinary Statement of Claim pleaded that Messrs Schafferius and Sawley were the proprietors of a partnership trading as Arcadia, and that from about 1988 to 1992 they attended upon the respondents’ properties each year to harvest as contract harvesters. It was pleaded that on or about 1 August 1985 Katena was incorporated and that it thereupon acquired the business name of Arcadia and thereafter traded and carried on business under that name, but that notwithstanding such incorporation Messrs Schafferius and Sawley represented that they traded and carried on business as an unincorporated partnership under that name, upon which representation the respondents relied, “not being on notice of the fact of the incorporation”, for the purpose of seeking to establish that a contract was entered into between them, on the one hand, and Messrs Schafferius and Sawley, on the other. 33 It was pleaded, either alternatively or additionally, that Messrs Schafferius and Sawley, contrary to the provisions of s.52 of the Trade Practices Act 1974, engaged in conduct in trade and commerce that was misleading or deceptive, in that they represented that they were trading and carrying on business as an unincorporated partnership styled Arcadia upon which the respondents relied “not being on notice of the fact of the incorporation”. 34 An issue on the appeal was whether the respondents could hold Messrs Schafferius and Sawley liable for the negligence they alleged. However, Mr Toomey conceded, as I understood it, that if the only cause of action was in negligence the respondents could only succeed against the negligent party, which, on the way in which the case was presented and fought, was Katena. Even if no such concession was made, that must be, in my opinion, the correct legal position. 35 It was nextly pleaded that the oral contract into which the respondents and Messrs Schafferius and Sawley entered contained an implied condition that before commencing stripping the wheat the headers would be thoroughly cleaned “and in particular free of any Parthenium”, and that in breach of that condition “at least one of the headers” was not clean and free of Parthenium “such that during the harvesting operation (and following a break-down wherein one of the headers was disturbed) the third defendants and/or the first defendant spread Parthenium” on the 650 paddock. This pointed up again the importance the respondents attributed to the alleged “break down”. It was pleaded additionally or alternatively that Messrs Schafferius and Sawley and/or Katena owed the respondents a duty of care to act reasonably to prevent the spread of Parthenium weed, and that in breach of such conditions and/or duties they allowed or permitted “a header which was contaminated and/or infested with Parthenium” to be on the respondents’ property with the consequence of contamination and infestation. 36 His Honour dismissed the claims based on the Trade Practices Act allegations and the implied terms allegations. The respondents did not challenge those conclusions, although Mr Einfeld relied upon the finding of the absence of an implied term, in the terms for which the respondents contended, on the negligence issue. His Honour accepted that the law will imply in a contract for service that the person supplying the service will exercise reasonable care, and, as I have said, he considered that his findings on negligence would have constituted a breach of that implied term. But that did not advance the respondents’ case beyond negligence and, in any event, his Honour did not make an express finding, no doubt because the respondents had not pleaded the breach of any such implied term. He noted that the terms for which the respondents contended went further than the implied term to act reasonably and sought to subject Katena and/or the Schafferius outfit to an undertaking that the headers would be thoroughly cleaned, although he seems to have equated that with the obligation to take reasonable care; and free from any Parthenium weed. He dealt with the knowledge of Parthenium weed in 1992 and, Red Appeal Book p.34, found that the need for thorough cleaning of headers was well established, and that Mr Schafferius was well aware of the dangers of spreading Parthenium weed from headers used in infested areas. 37 He then turned to a consideration of the principles applicable to the implication of a term and, having set out the five requirements, said:-
The Issues
38 Mr Einfeld submitted that in the light of these findings it would be very strange if the conclusion were reached that notwithstanding, as was found to be the fact, that the headers had been cleaned according to best practice, it was nonetheless found, as his Honour did, that by having some Parthenium seed in the headers, which could only be removed in the way to which reference was made by his Honour in the passage I have quoted, his clients could be guilty of negligence. 39 The particulars of negligence against Katena and the Schafferius outfit in paragraphs 8(b) and (c) were each based on a failure to warn the respondents that the headers had been used in an area contaminated and/or infested with Parthenium weed before entering and operating on their properties, and to warn of the risk of using a header so contaminated and/or infested. His Honour rejected these allegations and there was no challenge to his finding. He was of the view, Red Appeal Book p.50, that they could have no material bearing where at least one of the respondents, Mr Martin Buckland, was aware of the risk of infestation by headers from a contaminated area, and, although “alert to the risk”, trusted Mr Schafferius’ reputation. 40 In dealing with the issue as to whether the headers had been cleaned before crossing the border, which his Honour said “was fiercely contested”, he said that there was compelling evidence to support a conclusion that Katena and the Schafferius outfit were thorough in cleaning their headers after leaving Parthenium infested areas and before crossing the border. He referred to the evidence in support of that and, Red Appeal Book pp.46-47, was satisfied that before crossing the border the headers used “had been thoroughly cleaned in accordance with the high standards required by Peter Schafferius”. He referred to the evidence of Mr Kelly to the effect that unless one spent hundreds and hundreds and hundreds of hours and more money than ten headers were worth, one could not physically clean a header properly. Mr Kelly, who was an expert called by the respondents, was asked whether he considered the cleaning carried out was reasonable, and he said it was acceptable enough to get them across the border, but it would not stop infestation if Parthenium weeds were still on them because “.. it’s impossible to clean a bloody header. It’s as simple as that”. 41 Mr Chapman, an expert in headers, who was also called by the respondents, said that the cleaning regime “would be given his stamp of approval”, and that to require more would put harvesting contractors out of business. His Honour continued:-
“Furthermore given the evidence before me, to some of which I have already referred, an undertaking to thoroughly clean the headers would appear to be no more than part of an undertaking to exercise reasonable care. The same cannot be said of an undertaking to make the headers ‘Parthenium free’. According to Mr Ian Kelly, an expert with a zealous commitment to the control of Parthenium weed in New South Wales, cleaning a header to render it Parthenium-free borders on the impossible. Certainly without a massive, and commercially unsustainable, expenditure of time and money, it could not be done. It is most unlikely that Mr Schafferius, knowing as much as he did about Parthenium weeds and headers (he had been harvesting since the mid-1970’s) would have agreed to any such term and it would certainly not meet the ‘business efficacy’ and ‘goes without saying’ tests laid down in BP Refinery and approved in Codelfa .”
42 His Honour also relied on the evidence of Mr Martin Buckland, who said that he could have said to Mr Kelly that he, Mr Martin Buckland, accepted that when the header had crossed the border it was “as clean as you can get it”. 43 The first particular of negligence was a failure to take adequate precautions to prevent the spread of Parthenium seed in the use of a header on the respondents’ property. This, as I understood it, sought to raise the principle of strict liability. 44 The third particular of negligence was the failure to properly clean the headers and remove any Parthenium seed before entering New South Wales as then required under the Ordinance. I have referred to his Honour’s finding as to the cleaning which was undertaken, and to the way the respondents sought to agitate this issue. 45 The fourth particular was the failure to disclose properly to the border inspectors the likelihood and risk of Parthenium seed remaining in or on the headers. His Honour rejected this allegation, and this finding was not challenged. 46 The fifth particular of negligence was failure to use appropriate sprays, herbicides or pre-emergent herbicides or other means to prevent Parthenium remaining in or on the headers from germinating or spreading. This, as I understand it, is an elaboration of the first particular. 47 The sixth particular was that Katena and/or the Schafferius outfit owed the respondents and others in New South Wales a duty of care to take proper and adequate precautions to prevent the spread of Parthenium seed in New South Wales. It was alleged that there were breaches of these various duties. 48 By letter dated 1 October 1997 the respondents’ solicitors added a further allegation of negligence against Katena and the Schafferius outfit, namely:-
“The conclusion I reach is that the system of header cleaning adopted by the Schafferius outfit was consistent with the best practices in the industry at the time and that the headers brought into New South Wales in November, 1992 had been cleaned to that standard. But the evidence also establishes that even best practice could not guarantee a Parthenium-free header, leaving open the possibility that Parthenium seed could have remained lodged in various parts of the header which could not be accessed by ordinary cleaning even as thorough as that undertaken by the Schafferius outfit.”
The respondents’ attack was not on these findings, but was directed to his Honour failing to impose what they submitted was a sufficiently high standard, which would have required the cleaning of the headers at least to the Western Australian standard, or, to an even higher standard, to ensure that there were no Parthenium seeds in the headers.49 As against the State the allegations of negligence were failure to adequately inspect to locate Parthenium seed and/or to remove it from the headers; failure to use appropriate sprays, herbicides, pre-emergent herbicides and other means to prevent any Parthenium seed that entered the State from germinating or spreading; failure to direct the person or persons in possession of the headers to remove any Parthenium seed from them before they entered New South Wales from Queensland; issuing a permit that had the effect of misrepresenting that the headers were clean and free of Parthenium seed; failing to direct Katena and the Schafferius outfit to warn the respondents and others of the risk of contamination and/or infestation; and failure to enquire of the use to which the headers had been put in Parthenium seed infested and/or contaminated areas in Queensland. 50 It was further pleaded that pursuant to the principle in Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520, that Parthenium seed is inherently likely to cause serious damage and loss, and/or pursuant to the principle laid down in Rylands v Fletcher that Katena and the Schafferius outfit is/are strictly liable for bringing that noxious weed onto the respondents’ property and spreading it, thereby causing the infestation and contamination. His Honour dismissed the claim based upon statutory liability against the State, but found that the State was liable for failing to take reasonable care in the performance of its statutory duties. Mr Toomey did not challenge his Honour’s rejection of the “statutory count”. 51 The appeals proceeded on the bases that the issues were whether the respondents had established that the appellants were negligent, and the matters raised in the Notices of Contention.
“That the first and third defendants knew or ought to have known that to repair, work on or clean a header in the plaintiff’s paddock would dislodge Parthenium seed enabling it to fall from the header and to spread on the plaintiff’s property.”
52 His Honour set out the facts in detail and the problems created by Parthenium weed. He referred to the various causes of action pleaded, the essential elements of the claim and the respondents’ reliance on the decision in Burnie Port Authority v General Jones Pty Limited to support a claim against the appellants “for strict liability based on Parthenium as inherently likely to cause serious damage or loss if brought onto” their properties. 53 He identified the claims made against the State as being based on a breach of duty of care or statutory duty and, at Red Appeal Book p.30, began to consider the liability of Katena and the Schafferius outfit, stating that the respondents’ task was to prove that the infestation was caused when Parthenium weed seed, which to that point had been trapped in one or both of the headers, (although it was not in issue that if seed escaped it was from the second header), became dislodged and was spread over parts of the 650 paddock, whereafter it germinated and multiplied into the infestation discovered in April 1994. He continued that it was also necessary for them to prove that that was a result of conduct on the part of Katena or the Schafferius outfit sufficient to give rise to liability on one or other of the grounds on which the respondents relied. 54 His Honour considered, firstly, the issue of liability against Katena and the Schafferius outfit, stating the respondents’ case as being that all the dealings were with Mr Schafferius, who, to their knowledge, traded in partnership under the name Arcadia. He referred to evidence from the Messrs Buckland that they only knew of Messrs Schafferius and Sawley trading as such and that Mr Buckland Senior had never heard the name Katena. His Honour stated that all the relevant documentation including the New South Wales Government Border Permit, sales records for the supply of spare parts and the account for the harvesting was in the name of Arcadia, and he concluded that the evidence supported that Messrs Schafferius and Sawley held themselves out as trading in partnership under the name Arcadia. From this he reasoned that the contract was entered into with the respondents for the harvesting of the crops to which contract Messrs Schafferius and Sawley became parties and liable for any breach. He continued that the contract with Katena was one with an undisclosed principal and enforceable as such. 55 As his Honour found ultimately that the case based on the alleged breaches of the implied terms had not been established, (the breach of the implied term to take reasonable care not having been pleaded), the contract count failed and, therefore, it seems to me it is unnecessary to consider it further. Mr Toomey acknowledged that this was so. 56 His Honour turned to the case based on s.52 of the Trade Practices Act, which he rejected. 57 His Honour commenced, at Red Appeal Book p.35, to consider the liability in negligence. The first matter to which he gave attention was whether Messrs Schafferius and Sawley were liable in negligence. He posed circumstances in which Mr Peter Schafferius would be an employer and vicariously liable for the negligence of his employees in the course of their employment, and that if he and Mr Sawley were found to have been acting in partnership that they would have been jointly liable as “partners/employers”. He considered that their wives could not be made liable in the absence of any evidence of a partnership of which they were members. At Red Appeal Book p.36, his Honour said:-
An Analysis Of His Honour’s Reasons
58 His Honour continued:-
“Although there is no direct evidence that Peter Schafferius, Dean Sawley, Mark Sbresni, Craig Griffiths, Bart Simpkins or any of them were employed by Katena Pty Ltd this seems to have been assumed by both sides and on that assumption Katena Pty Ltd, as first defendant would be liable for a breach in the course of employment by all or any of them in the tort of negligence.”
In the result if the respondents’ are entitled to judgment against Katena and/or the Schafferius outfit, it must be, in my opinion, against Katena only.
59 Whilst it is correct to say that a Court may draw an inference reasonably supported by other facts, the Court must none-the-less find that the supporting facts for the inference have been established on the balance of probabilities. It is also necessary to distinguish between an inference, on the one hand, and mere speculation or conjecture, on the other, and, in the present case to remember that the respondents did not, and could not, in my opinion, having regard to the issues involved, rely on the principles of res ipsa loquitur. 60 His Honour recited the facts of the harvesting of the 650 paddock in November 1990, when Katena stripped a large wheat crop. One haulage contractor employed that year was Weir Haulage, which was based in Dalby, Queensland. Its trucks drove onto the 650 paddock to collect harvested grain during that harvest. 61 His Honour then gave a brief description of a header or conventional combine harvester such as the John Deere 9600. He described the comb and rotating knives for cutting off the grain, by which I take it he meant the grain and the stalk to which it was adhering, and the process of carrying that through the feeder house into the cylinder/concave area where the threshing took place. At that point up to 90 per cent of the grain was separated from straw, stalks and chaff, the latter being carried by a beater over the beater grate into straw walkers, which consist of a series of plates over which the straw is carried in an upward direction and shaken and “fluffed” to remove any residual seed. The straw remaining at the top of the straw walkers is passed or blown out the back of the machine and the grain is fed through sieves and into a bin behind the driving cabin. 62 His Honour recounted that each of the respondents and the appellants promoted an hypothesis, although he said that they were not substitutes for facts, and:-
“The real issues in this case and the ones which the plaintiffs bear the onus to prove are whether the infestation of the 650 paddock by Parthenium weed was the result of the stripping of that paddock by one or more of the first defendant’s headers on 3 December 1992 and, if so, whether such infestation could be attributed to the negligence of Peter Schafferius or those under his supervision.”
He said that two hypotheses were advanced but, before coming to them, he stated, at Red Appeal Book pp.36-37:-
“What occurred in the 650 paddock in the years leading up to the discovery of parthenium in April 1994, remains a mixture of undisputed fact and speculation arising from conflicting or non-existence evidence. There is no evidence which links unequivocally the infestation with the December 1992 harvest carried out by the ‘Schafferius outfit’. I choose that somewhat unsophisticated description to cover the various possibilities explored earlier: corporation, partnership, individual principals and/or their servants and agents. Any final conclusion must be a matter of inference but it is a well settled rule of evidence that an inference including an inference of negligence, can be drawn if such an inference is reasonably supported by other facts.”
63 The respondents’ hypothesis was that the infestation in the 650 paddock occurred as a consequence of the stripping of the oats on 3 December 1992. It was based on mechanical repairs being carried out to the second header, the suggestion being that the walker crank bearings were replaced and that when the repairs were completed the second header joined the first and the stripping was completed. The hypothesis continued that:-
“It is the evidence and conclusions to be reasonably drawn from it that will establish the facts and provide a proper basis for testing the hypotheses. The further point to be made at this stage is that in putting forward an hypothesis the defendant should not be understood to be accepting any onus of proof. If I am satisfied that the defendants’ hypothesis is at least equally sustainable on the evidence when compared to that of the plaintiffs, the plaintiffs would have failed to dislodge the burden which rests on them to prove their case on the balance of probabilities. Subject to those reservations, the hypotheses provide a useful framework within which to consider the evidence.”
64 The hypothesis of Katena and the Schafferius outfit was based, firstly, upon a denial that any mechanical work was done on the second header on 3 December 1992. It depended on an assertion, which his Honour ultimately rejected, that Weir Haulage brought Parthenium seed onto the 650 paddock in 1990, such that Parthenium plants were already there when the 1992 harvest took place. 65 The hypotheses marked out, at least to a certain extent, the areas of factual dispute between the parties. It was conceded that his Honour did not accept either. Firstly, he rejected the critical step in the respondents’ hypothesis that any repair work was carried out. So far as the respondents’ hypothesis depended on seed trickling from the header that, in my opinion, should also have been rejected. This was based on an assumption made in a letter from the respondents’ expert, Mr Kelly, dated 6 August 1997, in which, Blue Appeal Book p.199, Mr Kelly wrote:-
“The repair work on the second header dislodged Parthenium seeds which had been picked up from Parthenium infested land in Queensland where the header had been used and which had remained undetected. As the second header proceeded with the stripping, Parthenium seeds ‘trickled’ out of the machine onto the ground where they germinated and grew over the next sixteen months.”
66 Mr Kelly’s evidence was that Parthenium weed could travel to New South Wales in a number of ways e.g. by an escort vehicle, in the radiator of a car, in the mud on a vehicle, on the floor of a vehicle, or in a person’s pocket: Tp.179. It is to be noted that such vehicles do not fall within “prescribed agricultural machinery”, and, as I have said, a permit was not required for the service vehicle. Nor was clothing the subject of inspection and it is by no means fanciful that Parthenium seed could have been in the clothing of Katena’s employees, who had operated in Parthenium weed infected paddocks before coming to New South Wales. 67 At Tp.182 he said that in the conditions which prevailed in Condobolin the Parthenium weed he saw in April 1994 had probably been there for one or two seasons, but not for a third season because if it had been the whole paddock “would have been covered”. He said that from inspecting the photographs he could see rows of Parthenium weed, which he believed followed the path of a header and, at Tp.183, he said that he did not believe that a massive amount of seed “come out of the back”. He said that whilst the photographs showed a number of Parthenium weed plants:-
“George Buckland informed me one of the headers broke down and part of the straw walker assembly or panelling of the header was removed. This may have dislodged Parthenium weed seeds which were locked in between the metal surfaces releasing them for distribution across the paddock. The area of worst infestation was where the header would have first entered the crop.”
68 Mr Kelly excluded a number of other possible causes of infestation and, at Tp.184, he was asked about repair work disturbing seeds. He said:-
“… there might only have been one or two seeds follow the row of the header along, it may not have been a lot and then they reproduce every three weeks and they can reproduce in shorter periods of time than that, but under normal conditions, three to four weeks, it may be a bit longer ….”
In expressing the view that only a very small amount of Parthenium seed had been spread, Mr Kelly was in basic agreement with Mr Chapman, another expert called by the respondents.
69 He said that that header was tracked and Parthenium weed was found on different rows around the paddock where it had worked in the Condobolin area. At Tp.185 he agreed that if repair work was carried out on a machine that had been in a Parthenium weed infested area, even though it had been cleaned fairly thoroughly with air, it was likely that there would be seeds there that could be disturbed by repair work, and:-
“OK my experience with repair work carried out in the past has been that we have had headers in the past where there have been repair work and other machinery but I’ll stick to headers and you can ask me about the other machinery in a moment. We’ve had headers in the past where there’s been work carried out with - on headers and a classical example is if I can continue, is that there’s a Parthenium weed infestation at Mungindi at the border crossing where there was some work carried out on a header there and what happened was it was actually at the wash-down bay, well next to the wash-down bay at the Department of Agriculture wash-down bay on the Queensland side of the New South Wales border, and what happened while there, there was a header there that had been worked on and there was actually a grease trap where they’d actually worked on the header and they’d thrown their pump in the river and cleaned this header down because when they came to the border crossing at Mungindi, it wasn’t deemed to be seen to be cleaned so then they were asked to take the header back into Queensland to clean it down and we were asked to go and have a look and these Parthenium plants were growing on the side of the road.”
70 Mr Kelly continued that on the respondents’ property there were areas that were more heavily infested and he referred to the fact that Mr Buckland Senior told him:-
“Q. And is there any reason for the seed not coming out in one lot and being dribbled out in the pattern that you found?
A. If it all came out in one lot, it would be a lot closer to the border crossing, it doesn’t all come out in one lot. It could come out weeks later, it could come out days later or hours later.
Q. Was there any reason why the Parthenium, assuming that certain repair work was carried out on this machine at the Buckland’s property that the infestation was there on no other properties?
A. Yeah because I - because it’s pretty impossible to clean a header and working on the task force, that’s the hardest problem that we have is how to clean a header properly. I don’t know whether everyone’s experienced with headers here but there are many, many crevices in headers. Unless you pull the header apart and pull every bolt and every nut and every tube and undone every part of the header, including the inside of the cab, underneath the cab and unless you spend hundreds and hundreds and hundreds of hours and spent more money on what the ten headers were worth, you could not physically clean a header properly, it’s very, very difficult to do. You would not be able to physically do it .” (My emphasis.)
Mr Kelly was, therefore, propounding the theory that after repair work the seed does not come out in one lot, but that it could come out weeks, days or hours later. Whilst his Honour rejected the repair theory, he did adopt a theory that the seed escaped after work had been carried out on the second header. For reasons I shall seek to explain there is no evidentiary basis for this conclusion or that whatever was done, was done negligently. But before getting to that point Mr Kelly’s evidence about the time it would take for the seed to come out must be taken into account. He was not positing that that could necessarily happen soon, i.e. within a matter of not more than about three hours, after work on the header was performed, which was the case the respondents, in various ways, were seeking to run.
71 He was asked, Tp.186, how much work would have to be carried out on the header to disturb seeds, and he replied:-
“… that there was some work believed to be done on the header so where he showed us at the time near some trees, he believed that there was some work done on the header and that’s actually where the Parthenium weed infestation was the thickest”.
72 He was asked what was the smallest quantity of seed that he believed could have caused what he saw in the 650 paddock, including the concentrated infestation on one corner, and he said the number of seeds would be “minute”, adding:-
“A. It could be the smallest amount of work or it could be a major job. It could be the matter of taking a plate off or pulling a shaft out, because its got one tiny hole in it and the shafts follow in the centre and if it pulls it out it disturbs the seed because they wash these headers out with water, with air, with diesel and if it is dislodged it is as that shaft then continued to turn, and there’s a hole in the shaft, for instance if it was a shaft that had been moved, and adjustment was done on this shaft, it could then drop one or two seeds around that paddock …”
He continued that a wooden bearing could lead to exactly the same result especially if there was a plate in front of or behind it.
73 Mr Kelly was asked about the cleaning and inspection procedures at Mungindi and said that a border inspector went over the header and if he found no problem, such as trash, dust or dirt in it he let it into New South Wales. He had seen instances where many hours had been spent cleaning a machine and it appeared clean, but within a couple of minutes seeds had been found and he repeated that he did not believe one could clean a header properly. He referred to pulling trash from the crevices of the header and, when asked about Parthenium seed, he said:-
“A. The amount of seeds that could cause that infestation. Just a very, very small amount of an even distribution along the rows, very small. Now for instance, in the thicker areas there might have been one plant dropped every twenty metres, that’s all it might have taken. Because it produces so much seed as I’ve said before, it could be just one or two seeds. It wouldn’t be a truck load, it wouldn’t be a cupful, it would be about half a thimble full …” (My emphasis.)
74 His evidence, in the context of considering a case of negligence, established three important matters. Firstly, it is not possible to clean a header thoroughly, notwithstanding that one has followed best practice or even the Western Australian standard. Secondly, it is virtually impossible to see Parthenium weed seed, and identification would require examination under a microscope. Thirdly, it would only have needed half a thimble full of the seed to create the infestation he saw. When one bears in mind that the respondents’ case rests on negligence in bringing Parthenium weed seed into New South Wales, it seems to me that each of these factors, in the light of the evidence that the headers were cleaned in accordance with best practice, militates strongly against a finding of negligence. Also the case based on something being done on the second header is dependent on a finding that there was a negligent act, which released the seed, (which was never established), and that it was negligent for those for whom Katena was responsible not to have seen and identified what might have been no more than half a thimble full of seed, which seed, in any event, it was virtually impossible to see and required a microscope for identification. 75 At Tp.194 Mr Kelly said that if there had been Parthenium weed in the oats in 1992, when the crop was harvested, the distribution pattern he saw was inconsistent with that. This tended to negate the theory put forward by the appellants in one sense, but it may have supported it in another because Mr Kelly’s pattern theory was based on the “trickle” effect, which was, in turn, based on the assumption that what Mr Buckland Senior told him was true, which was never established. 76 At Tp.199 Mr Kelly was cross-examined about what Mr Buckland Senior had told him. He agreed his theory about how the infestation occurred was based, in part, on the fact that one of the headers broke down and work was carried out on it, and that he was told by Mr Buckland Senior that one of the headers broke down and part of the straw-walker assembly or panelling of the header was removed. The evidence continued:-
“ A. I haven’t seen any with Parthenium weed seed, never. I hope I don’t. I have never ever, because Parthenium weed seed is, you’d need to put Parthenium weed seed under a microscope to identify it anyway … ” (My emphasis.)
He described the seed as little black dust dots, which were minute and, in trying to point out to what he was referring he made mention of the necessity to put it under a microscope: Tp.188.
77 In cross-examination he was then taken to the cleaning of headers, and he said that he did not know of any legal requirement for trucks and other vehicles to be cleaned before crossing from Queensland into New South Wales and that that was a matter of concern to him. He gave evidence of infestations occurring from such vehicles, which were not required to be cleaned, coming from Parthenium weed infested areas into New South Wales. 78 At Tp.205 Mr Kelly said that he would not necessarily expect, if some Parthenium weed seed was escaping from some cavity or part of the machine at such a rate as to cause the infestation on “Waverley”, to see at least a small amount of infestation on the next property to which the header went. His reason was that the Parthenium weed seed was not even over the whole of the paddock and:-
“Q. Now, if that did not occur, that would change, in part, your conclusion, wouldn’t it?
A. If there was work done on the header and it was another part of the insider of the workings of a header and as I said it’s pretty difficult to clean a header and there was a plate removed or a bearing or a pulley or whatever there was or there was grease dislodged in the header, yes, it could have come out
Q. I don’t think that’s quite what ..
A. What I’m saying ..
Q. Just listen to my question ..
A. .. back of the header.
Q. Your conclusion is dependent upon work being done of a mechanical nature on the header?
A. Yeah.
Q. If there was no mechanical work done on the header?
A. Yeah.
Q. Then your conclusion about what happened would be different?
A. Well, I’ve said that that’s what George Buckland told me at the time.
Q. I understand that?
A. If there was no work done on the header, my theory would be that for some unknown reason this clog of grease, or whatever it was, let go or this pulley started to drop some seed out halfway through the paddock, which is a little bit unlikely , but that would be the way that it was. But it was definitely in header trail line ..
Q. Yes?
A. .. infestation.
Q. No doubt about that Mr Kelly. Definitely in a header pattern. But your conclusion about how the Parthenium weed was distributed by the header is dependent upon work being done on the header . You’ve just said that?
A. That’s what I’ve been told.
Q. And if there was no work done on the header then your conclusion about what happened would be modified?
A. It would be modified .” (My emphasis.)79 At Tp.206 Mr Kelly said that one plant could produce 15,000 seeds. He was asked to assume that there were two Parthenium plants in the 650 paddock in a crop and that the header harvested them. It was put to him that that would spread the seeds across the property, with which he agreed, and:-
“Whatever dislodged it, whether it be someone working on the header. I’m only told what Mr Buckland told me and that’s why I put it in the report. But there’s 200 and - I look at the little diagram that Mr Buckland did, and I’m not saying this rudely to Mr Buckland, but if you look at the photographs that I supplied to the Court you will see that some other areas were heavily infested with Parthenium weed where the header went and some weren’t. It’s as simple as that and it might be in Mr Buckland’s mind, but I see things - I’ve looked at many many infestations of Parthenium weed over the years and you can actually track this Parthenium weed up and down the paddock and if we’d have known at the time, I didn’t know this was even go to the Court. Most of these things don’t even go to Court, but if we’d taken an aerial photograph it would have shown quite clearly what happened and we will certainly do that from here on in.”
80 In re-examination Mr Kelly said that the pattern would not have been the same and, for reasons he gave, Tp.207, he said his belief was that the infestation did not occur from two plants picked up from the previous year. He also said that one could not find Parthenium seed in grain because it is very small. None-the-less, his concession in cross-examination went a long way to establishing at least part of the appellants’ hypothesis, viz that there was Parthenium weed in the paddock before the 1992 harvest. 81 At Tp.211 Mr Kelly repeated that it was impossible to clean a header. He described the effect of washing and air blowing and said that the areas which were hard to clean would not be cleaned, and:-
“Q. And it would account for that pattern?
A. It would.
Q. And so it is possible that that’s what occurred on this property?
A. That is slightly possible, yeah.
Q. It’s more than slightly possible. It is likely, isn’t it?
A. It is.
Q. Under those circumstances?
A. Yeah.”82 Mr Kelly was further cross-examined commencing at Tp.211 and he said that his “trickle approach” was based on the assumption of the information he had been given about the work on the header. He said, Tpp.211-212, that the seeds were very light, and that he was aware the seed went through a sieve, by which I take it he meant the grain being harvested, and the light material “is blown out the back”. He continued:-
“Or it’s very difficult to clean unless you pull them, dismantle them completely, and no one will do that, otherwise there’ll be no harvesting done in New South Wales, it’s as simple as that, it’s just a commonsense approach to a shit of a job. Simple as that.”
83 Mr Chapman, who was an expert in headers, was called by the respondents. He was an experienced contract harvester and the treasurer of the Grain Harvesters’ Association. He gave a statement, which commenced at p.201 of the Blue Appeal Book. He said that some headers, including the John Deere 9600, have double walls with an inch cavity for strength, which can and does fill with dust and small seeds which are difficult to remove without dismantling the cavity walls. He had given advice as to how headers should be cleaned in a document annexed to his statement. He said that over the last ten years he had cleaned or helped to clean about twenty headers each year at Goondiwindi and he described the methods he used stating that:-
“Q. Now with this pod in its state, that is the pod, the seeds inside the light very light pod, they’re likely to be, from your knowledge of the machine, they’re likely to be blown out the back with the other material?
A. As I said before, if there are two plants in the paddock and we picked them up and we harvested them, most of them would stay out the back. But if the seed was inside the machine and one trickled out now and again, that’s pretty typical of the infestations at the Buckland’s property.
Q. But unlike the heavy seed after it’s been thrashed, the lighter seed pod is going to be blown out the back of the machine?
A. That’s right.”84 He referred to the fact that the back part of the John Deere 9600 conventional header near the walkers had a bearing, and that it was his belief that the bearing on the walker crank failed on the second header, “which required the side wall cavities to be opened in the field at Condobolin to repair the bearing”. His Honour rejected this. He continued:-
“Unfortunately in some spots in headers such as the John Deere 9600 the wall cavity only has little holes which makes it very difficult to clean without taking it apart.”
85 He also referred to other methods of cleaning including saturating the holes with diesel to kill the seeds. 86 In his oral evidence in chief Mr Chapman said he had observed the procedures for cleaning at Mungindi and that whilst he could not recall the details, he had been there to see that everything was done as at Goondiwindi. He said, Tp.114, that Mungindi was no different from other crossing points and that there were problems at every crossing. 87 Beginning at Tp.117 Mr Chapman was asked about the walker crank. He said he was familiar with the procedure for removing it, and he described it as depending on the particular circumstances. He said there was a cavity that filled with debris in the course of harvesting and most of the debris could be removed by the use of high compressed air or perhaps water and, Tp.119, he was asked what the effect would be of changing a bearing on that type of debris in the cavity, and he said it would loosen it to a point and that the area would be “getting shook around fairly well”. 88 He agreed that a header could not be cleaned “100 per cent” and that:-
“This may have allowed seeds in that cavity to be loosened and spill out the small holes in the side and bottom of the wall cavity. The bearing in question would be somewhere near the marked area 15 area in the brochure which shows the header as a John Deere 9600 in the diagram.”
There was no evidence that any such thing happened. However, it is not difficult to see, in the light of this evidence, why the respondents tried to establish that repair work had been done. That would have provided not only a basis to support Mr Kelly’s theory, but it would have led to a situation, which would have been consistent with the way Mr Chapman thought that the Parthenium seed might escape.
89 He was then asked about the requirements for taking a header across the border into Western Australia. He said that the header had to be pulled apart completely and put back together again, a procedure which took a week to ten days and was not required for crossing from Queensland to New South Wales. 90 Mr Chapman said that Mr Schafferius had telephoned him after he had received Mr Chapman’s statement and told Mr Chapman that no repairs were done on the respondents’ property. He said that Mr Schafferius told him that the purpose of purchasing parts at Condobolin was to top up his stock in his service van, and he agreed that that was the practice of contract harvesters, namely to keep up stocks so that they were not caught in a situation where the header was down for an extended period because of the absence of spare parts: Tp.122. 91 Mr Chapman agreed that the seeds were the size of pepper and that the pod in which they were carried was light and would blow in the wind. He also said that the seed was so small that it would blow in the wind off a header. 92 He was cross-examined at some length about the alleged repairs to the header and, at Tp.127, he was asked about rubbish, which accumulated in the cavity, and he agreed that using compressed air would have the effect:-
“.. it doesn’t matter what brand of header, every header has got a problem such as this, that it cannot be cleaned 100 per cent.”
93 Mr Chapman was then asked about the cleaning of the header. He said that even if one adopted the Western Australia approach one could not remove one hundred per cent of the material and “maybe” one would be left with a couple of seeds of Parthenium “stuck somewhere”. He agreed that in his pamphlet he had used the word “reasonably” to tell owner operators that they have “to make a reasonable fist of” cleaning, and had provided a check list about cleaning. He also agreed that his remarks were directed to owner/operators bringing machines across the New South Wales/Queensland border: Tp.129. He wrote in his pamphlet that Parthenium seed is very small, so that it was necessary to thoroughly clean the machine with a high volume air compressor and to use water jets only for mud and other contaminants that will not yield to air treatment. 94 At Tp.129 he was asked to assume the method of cleaning adopted by Katena, which included removing panels, cleaning out the straw walker with a screwdriver, and blowing the areas and then washing the machine down with water. He said he would give that method of cleaning his stamp of approval and:-
“.. of actually probably blowing this junk into the bottom of the cavity, that’s a fair comment isn’t it?
A. Yes.
Q. And so there’s no problem with this junk, as long it stays there in the cavity?
A. It stays there ever and a day while that machine’s operating yeah .
Q. And as long as no one opens up this cavity to let the junk fall out, it can stay there and not do any harm?
A. That’s right .” (My emphasis.)
This evidence reinforced the importance of proving some repair work, which would expose the cavity.
95 He was then asked about the possible repair of the header and, at Tpp.130-131, he said:-
“Q. In fact an owner operator couldn’t reasonably do any more than that to clean his machine?
A. We wouldn’t be in business if we did.
Q. Wouldn’t be in business if you had to - that’s why you don’t take your machines over to Western Australia?
A. That’s exactly right.”
96 He agreed that if some junk had been liberated during that process it would be blown out “pretty quickly” once the harvester was started, and he was then shown Exhibit D and asked:-
“Q. Now that’s the cleaning aspect of it, now I want to talk to you now about the possible repair of the machine, now let’s say for instance that one of those machines that had been cleaned like that, right, comes down to do the harvest in New South Wales, and let’s say that it’s been harvesting in the New South Wales area for a couple of weeks and it’s done you know, ten or twenty paddocks of harvest, and some minor repairs have to be done on the machine. Let’s assume that there’s a bearing has to be replaced. One of the bearings we were talking about before on the walker crank. And that’s done on a roadway and the repairs are completed. Now and let’s say also that these panels that we were talking about that may have filled up with junk, are not undone, not taken apart, it’s just the replacement of a bearing, let’s even say for the purpose of this, that a whole crank has to be replaced, but those panels are not undone, right, just for this example?
A. Right.
Q. Now it would be unlikely in that scenario that there’d be the chance of Parthenium seed escaping in any quantity?
A. That’s right.
Q. You’d agree with that?
A. I’d agree with that .” (My emphasis.)
Of course, his Honour found that there was no repair work. But this evidence not only casts great doubt on whether, if repair work was done in the manner asked to be assumed, Parthenium seed would have been liberated, but also on the suggestion that it could be if something less such as clambering on the header, occurred.
97 At Tp.139 Mr Chapman said that trucks and other support vehicles did not go through the checking process at the border in 1992. 98 In re-examination, Tp143, Mr Chapman was asked about his evidence in relation to Exhibit D, and whether he understood the time frame in which the header had been in the 650 paddock, which question, understandably enough, he did not understand and, the re-examination continued:-
“Q. Let’s assume that the yellow track is the perceived occurrence of Parthenium weed on a property, and it is assumed, just for the purposes of this example, that Parthenium weed has been spread in that pattern all the way around the property. You’re shaking your head?
A. There wouldn’t be that many seeds come out of a header.
Q. That’s right. There wouldn’t be that many seeds come out of a machine to spread it like that would there?
A. Would not.
Q. And the area at the bottom which is yellow, is heavy Parthenium infestation like not in a pattern but just very heavy. Now given the example that I’ve given you before about this particular machine we were talking about, again you’d have to shake your head with that one too wouldn’t you, I mean there just wouldn’t be enough material?
A. It can’t be done, like it’s got to be reproduction in that ground.
Q. It has to be in that paddock and the more likely scenario, if you’ve got that sort of spread, is that there’s Parthenium weed in the paddock and the machine’s actually harvesting it and spreading it?
A. That’s right.”
It is clear that his Honour preferred Mr Kelly’s approach that there was a “trickle” effect to that of Mr Chapman. Mr Toomey submitted that this Court ought accept that finding. I do not agree because Mr Kelly’s “trickle” effect was based on an assumption, which was never proved. Once his theory is removed from the scene Mr Chapman’s view holds sway. Mr Toomey submitted that Mr Kelly was an expert in relation to the weed, whereas Mr Chapman was a header operator. That indicates to me that Mr Chapman had far more experience in what would happen in the operation of a header than Mr Kelly. Whether that is correct, Mr Kelly’s theory cannot stand.
99 None of this evidence, however, detracted from his earlier evidence that there would be insufficient seeds come out of the machine to spread it in the way set out in Exhibit D. The respondents’ case, based on the “trickle” effect, was that the pattern in the 650 paddock was consistent with seed falling from the second header. Mr Chapman said there would have been insufficient seed to achieve that and, for the reasons I have given, the “trickle” effect could not have been the cause. 100 He was then asked about his evidence in relation to the rubbish falling to the bottom of the cavities. 101 Mr Schafferius gave evidence as to the cleaning which was carried out on the harvesters “immediately to crossing the border”: Tp.332. He described the work which was done and the way in which the check list in the brochure prepared by Mr Chapman, to which he was referred, was carried out. In relation to the cleaning he said he was present whilst it was done and participated in it. He said that the items numbered 1 to 16 in Mr Chapman’s check-list were “most definitely” carried out, as were thus numbered 17, 18 and 19: Tp.334. The evidence continued to Tp.335 and established that the assumptions Mr Chapman was asked to make about the extent of the cleaning had been made out, save that the panels were not removed, except in so far as their removal was necessary to comply with Mr Chapman’s requirements. In the light of this evidence, which his Honour accepted, there can be no doubt that the headers were cleaned in accordance with “best practice” and, as I have said, his Honour’s finding was not challenged. 102 Mr Schafferius was cross-examined at great length about the parts and the replacement of the parts but, as I have said, his Honour rejected the suggestion that that had occurred. However, it is relevant to bear it in mind because that was an essential part of the case made at trial. 103 Mr Schafferius’ evidence was that he had left the 650 paddock before the second header arrived: Tp.371. He said he could not think of any reason why the second header was not ready to go straight in and strip the crop, but he said that would not necessarily be because there was a mechanical breakdown or problem of some nature and he added, in a manner which must have seemed very convincing in the light of all the other evidence given:-
“Q. Well what did you understand?
A. Well I understand that with that photograph I seen there’s a diagram of where the header pass has been. There would not be enough Parthenium ever in a header to do all that area .
Q. Did you understand the time frame between the discovery of the Parthenium and when the header went there?
A. You tell me.
Q. Eighteen months?
A. Time for a crop of Parthenium to be planted.” (My emphasis.)
He elaborated on that by saying it would be the time for a crop of Parthenium to be grown and, at Tp.144:-
“Q. When you answered that question what did you understand the time frame to be?
A. I knew in the back of my mind that there was a period of time, twelve months or thereabouts.
Q. Yeah. Did you understand it to be a second crop?
A. Yes.”104 At Tp.384 Mr Schafferius said that if the second header did not start until later than the first header the time could have been spent carrying out some mechanical work. The issue was not what could have happened, which could obviously include repair work, but what did happen, which the respondents never proved. 105 At Tp.387 Mr Schafferius described the cleaning carried out before crossing the border thus:-
“Maybe that first header went to see if the oats was worth doing, if the second header in fact was there and he might have waited.”
However Mr Schafferius was not able to give any explanation as to why two or three people were clambering on the second header. None-the-less, it is known that in addition to whatever was done then, the second header had been serviced between about 3 am on 3 December 1992 and before it had started work, and it had been adjusted to harvest oats. There was no allegation that either of these activities dislodged Parthenium seed.
106 As I have said his Honour obviously rejected the respondents’ hypothesis. He also rejected the appellants’ hypothesis, which was based upon Mr Weir having brought the Parthenium seed onto the property in 1990. 107 After reviewing the evidence his Honour concluded that the second header assisted in stripping the 650 paddock, but only after the first had been in operation for possibly as long as an hour. He also was satisfied that Exhibit D more closely indicated the paths followed by the two headers than Exhibit Y, which was prepared by an employee of Katena and made no allowance for the second header. The matter to which his Honour did not give consideration was how Parthenium seed could be spread over the yellow areas in circumstances where the “trickle” effect had ceased to be tenable, and Mr Chapman had said there was insufficient Parthenium seed to cover that area. 108 His Honour turned to Mr Buckland Senior’s evidence of men clambering on the second header about half a kilometre away, and to Mr Martin Buckland’s evidence that he saw two or three people on it “doing something to it”. Although Mr Buckland Senior said, at one stage, that the work proceeded for two hours, it is clear his Honour did not accept that evidence. He was satisfied that the second header harvested for approximately two and a half hours, and that it joined the first header stripping the oats somewhere between one half and one hour after the first header had started and, at that point he made the critical finding that during that time men were climbing over the second header “but there is no evidence establishing what they were doing on” it. 109 Having made that finding his Honour said:-
“A. What used to occur, myself and my operators would spend at least a day if not two, cleaning these machines down prior to crossing. Now it’s a very dirty job and they used to get dirty. We all used to get dirty and you know, it’s not a pleasant job. We’d arrive at the border and the inspector would look and everyone here that knows a header, you only have to look at it for a few minutes to know if a genuine effort’s been made to clean it. They weren’t there to look in every little hole to see if it was clean, they were there to look if the bulk of the material was gone, like that there was a genuine effort being made. And this is what used to annoy my operators. We’d spent two days cleaning these machines. We’d spend five to ten minutes or he would, walking around and they could never understand why he didn’t spend a day inspecting and that used to annoy them. But I knew myself that with a short quick look he could tell where a genuine attempt had been made, and yes they were as efficient as they could have been.”
110 He nextly turned to the question of cleaning prior to crossing the border. His Honour was satisfied that before crossing the border the headers “had been thoroughly cleaned in accordance with the high standards required by Peter Schafferius”: Tp.46, and, commencing on the same page, he concluded that the cleaning adopted by Mr Schafferius was consistent with the best practices in the industry at the time and that the headers had been cleaned to that standard. Further he acknowledged that even best practice could not guarantee a Parthenium free header. 111 His Honour then dealt with the hypothesis involving Mr Weir’s trucks, which he rejected for a number of reasons. In the course of doing so he said, Red Appeal Book p.49, that Mr Chapman had expressed doubts that dislodged seed could be spread over the area covered by the infestation and represented by the pattern traced by Mr Buckland Senior as the path of the second header, and that it was Mr Chapman’s view that such a spread was more likely a consequence of the header stripping and spreading existing plants. His Honour placed against that evidence, the evidence of Mr Kelly, which he described thus:-
“This brings me to a part of the plaintiffs’ case which is at best no more than conjecture. The plaintiffs sought to establish that during the half to one hour that the second header was parked on the southern end of the 650 paddock, certain part or parts, were replaced and in the process Parthenium seed had been dislodged.”
It is obvious that this was an essential part of the respondents’ case at trial. What was sought to be established was that the men clambering over the machine were carrying out this work. His Honour rejected the repair and replacement argument and said that to the extent that the respondents’ hypothesis relied on those matters it was unsupported by any direct evidence.
112 As I understand this passage, his Honour was accepting Mr Kelly’s view that the Parthenium seed was released slowly by the “trickle” effect. To this conclusion his Honour added the rapid growth factor. 113 However, in placing reliance on Mr Kelly’s evidence his Honour, if I may say so with respect, overlooked that the “trickle” effect theory was predicated by Mr Kelly on the statements made to him by Mr Buckland Senior, the relevant evidence being at Tpp.199-200 and 211. Mr Buckland gave no evidence to support what he had said to Mr Kelly and, in any event, his Honour rejected the suggestion that any repair work had been carried out on the second header. Mr Kelly agreed that if no such work was done on the header his conclusion would be modified: Tp.200, and that his “trickle” approach was based on the presumption of the information he had been given about work on the header: Tp.211. He was not re-examined on these answers. In my opinion, the failure to prove the assumption on which the “trickle” effect theory was based, destroyed the viability of the theory. 114 In those circumstances, and subject to a matter to which I shall refer, I consider that that left the evidence of Mr Chapman as to the more probable causative effect of the presence of Parthenium weed. This did not depend on preferring Mr Chapman, as a witness, to Mr Kelly, but the rejection of Mr Kelly’s theory because the assumption on which it was based was not proved. There is, however, other evidence on which his Honour could have placed reliance, viz that of Mr Buckland Senior, who said that he observed the oats as he travelled in the first header and he saw no weed. It must be borne in mind that Mr Buckland’s evidence was that he did not know what Parthenium weed looked like until 1994. However, one would have expected him to note an unfamiliar plant in the crop, bearing in mind its height and relative sparseness. His Honour found that if it had been there in 1992 Mr Buckland would have recognised it as a strange weed, and that had he seen it in 1992 “it is most unlikely that he would have paid no attention to it”. I take this as an acceptance by his Honour of Mr Buckland’s evidence that it was not there in 1992 in the sense that Mr Buckland did not see it, but would have had it been. I do not consider that is a finding of fact with which this Court can interfere. In coming to this conclusion his Honour seems to have overlooked, or at least he did not deal with the evidence explicitly, what Mr Buckland said at Tp.36, viz that it was not possible that Parthenium weed was there at the time of harvesting because “I ploughed them”. It appears to me that that evidence related to ploughing the Parthenium weed before the 1992 oats crop was sown. His Counsel had the same impression because he was asked about it in re-examination: Tp.103. Not only did his Honour make no finding on the point, but no submissions were put to us on it. In these circumstances there was evidence on which his Honour could have found that there was no Parthenium weed in the crop in 1992, viz that of Mr Buckland Senior. If that is so the reasonable inference is that the Parthenium weed observed in April 1994 came from seed spread from the second header in December 1992. 115 In the result I consider that the respondents have established that the operation of the second header on the oats crop was causative of the spreading of Parthenium seed, and that that Parthenium seed caused the infestation in April 1994. The question then is whether Katena and/or the Schafferius outfit was or were guilty of negligence. 116 His Honour, being satisfied that the infestation occurred in consequence of the Parthenium seed being spread from the second header in 1992, then had to decide whether that was in consequence of any negligence on the part of Katena or the Schafferius outfit. In the light of his findings that the header was cleaned properly at the border, and that no repairs at the 650 paddock were carried out in the manner alleged, one is remitted to ascertaining how it was that Parthenium seed escaped from the second header. It is not sufficient to say that that happened. As I have said Mr Toomey conceded this was not a case of res ipsa loquitur. Nor, for reasons to which I shall come, can the respondents succeed on the basis of strict liability. 117 At this point it becomes convenient to see precisely how Mr Toomey put the case on negligence. 118 His first submission was that Mr Schafferius should have ensured that the header was free of Parthenium seed and that following the best possible practice was not good enough. He submitted that the Western Australia approach should have been adopted and that if it was not the headers should have been refused access into New South Wales. This tended to overlook the evidence that even if that approach had been adopted, some seed may have remained. 119 In referring to the negligence Mr Toomey said, transcript on appeal p.66, that the pattern of heavy infestation in the first area harvested by the second header and then the lighter infestation was consistent with seed being disturbed, the more accessible seed dropping more heavily in the first cut, and then, as the harvester moved away less seed being dropped and, he submitted, that was entirely consistent with it having been disturbed and dropped as the header proceeded and vibrated in moving.
“Against this was the argument supported by Mr Kelly’s evidence. This argument was that when account is taken of how small the Parthenium seed is, it would only take a small volume to make up a large number of seeds which, if released slowly from the header, could be spread over a considerable distance - the ‘trickle’ effect. If this possibility is combined with the rapid rate of growth and reproduction of the plant, the result could correspond with seeds dropped no earlier than 1992 reaching the level of infestation found in the 650 paddock in April 1994.”
120 The respondents’ case at trial was that the Parthenium seed was in some way dislodged or disturbed in the second header when repair work was carried out by changing a part before it started harvesting the oats, and that when the second header started to harvest that seed, which had remained in it since the inspection at the border, was expelled or fell from it in some way thereby causing the infestation. A major part of the case at trial was that the negligence involved the changing of the part in circumstances which caused the seed to be dislodged. The respondents did not advance a case at trial or on appeal that the servicing of the machine on the morning of 3 December 1992 or the adjustment of it to allow it to harvest oats could have or did cause any dislodgment of seed. His Honour rejected that a part had been changed, but he found that there was negligence “in failing to take adequate steps to prevent the escape of parthenium seed from the header having worked on the header”. In making this finding his Honour was obviously referring to the activity observed by the Messrs Buckland. He did not refer to any other.
The Respondents’ Case On Negligence Against Katena
121 There are, in my opinion, difficulties with this analysis. His Honour had found that “there is no evidence establishing what they were doing on the machine”. Accordingly, and consistently with what I have just said, he did not find that the servicing or adjustment operations were the relevant activities. Therefore, to sustain his finding of negligence he had to find that there was an act or omission on the part of those for whom Katena was responsible in being on the header, which was negligent. He could not do that unless he found what they did or did not do, which he did not. There was no suggestion that men being there, without more, constituted negligence. It would then have been necessary to find that that act or omission released Parthenium seed previously captured in the second header so that when it was put into operation in the area in which it harvested the seed was deposited on the ground. As no facts were found to establish what was done on the second header, which could cause Parthenium seed to escape, and as it was not suggested that the respondents could rely on res ipsa loquitur, I do not see how working on the header, without more, could be held to amount to negligence on the part of Katena or, if it be relevant, Messrs Schafferius and Sawley. 122 Further, the negligence was said to be in failing to take adequate steps to prevent the escape of Parthenium seed. His Honour made no finding as to what steps should have been taken, nor whether they had or had not been, nor how this constituted negligence. His finding assumed that that failure, without more, constituted negligence, notwithstanding that there were no findings of the type to which I have referred nor of any activity by those for whom Katena was responsible, which dislodged or released seed. The formulation of negligence in this way also seems to have been made without regard to four critical matters. Firstly, his Honour expressly rejected the respondents’ case that Katena had failed to clean the header properly before it entered New South Wales. His finding was that it had been cleaned in accordance with the requirements of best practice. Secondly, the evidence was that even if a far more meticulous method of cleaning required by the Western Australian authorities had been carried out, that would not have removed all Parthenium seed. Thirdly, the evidence was that only a minute quantity of seed was required to start the infestation. Fourthly, the evidence was that it was almost impossible to see and identify the seed. When these four factors are added to his Honour’s failure to find what work was done, if any, and what steps should have been taken, if any, and to his finding that no part was changed his finding of negligence cannot, in my opinion, be upheld. 123 His Honour made no findings that there was negligence in failing to spray the seed to neutralise it. Having regard to the minute quantity and the inability to see and identify the seed this is hardly surprising. 124 No doubt alive to all these difficulties, Mr Toomey submitted that the negligence was not the act of working on the second header, nor any work done on it, whatever it may have been. He submitted that the negligence was using it after non-negligently performed work had been done, the act of negligence flowing from the fact that Katena knew or ought to have known that in carrying out such work, even without negligence, Parthenium seed could be dislodged or released and, when the header was operated, it would fall to, or it was foreseeable that it would fall to, the ground on which the header was operating, thus leading to infestation. This case was not fought at trial and Mr Einfeld objected to its being raised on appeal. In my opinion, it was a new case, which the respondents had never propounded and they should not be allowed to raise it now. It obviously involves different evidentiary considerations, which Katena was never able to answer. In essence it was a case based on strict liability.
Problems With The Trial Judge’s Conclusions
125 His Honour, Red Appeal Book p.52, held that were the rule in Rylands v Fletcher still part of the law in Australia as distinct from ordinary principles of negligence law, the respondents would have been able to rely on it. He added a proviso that the concept of “property” could be extended to the headers and, subject to that proviso, was of the view that if Rylands v Fletcher still applied as the law in Australia:-
Strict Liability
126 Rylands v Fletcher (1866) LR 1Ex 265 was concerned with the escape of dangerous or damaging material from land, which, in my opinion, would make it difficult to apply the concept of “property” to a header. However, it is unnecessary to explore that further because in Burnie Port Authority v General Jones Pty Limited the majority of the High Court, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ held, at p.554:-
“.. strict liability would arise for the consequences of the escape of Parthenium seed from the headers.”
127 His Honour, after noting the dissenting judgments of Brennan and McHugh JJ, considered that a high standard of care should be imposed on the appellants, consistently with the view expressed by the majority. Therefore, in finding that the headers had been cleaned in a proper manner his Honour was doing so against the background of the requirement that a high standard of care should be imposed, and the obvious inference is that he found that in cleaning the headers this standard of care had been met. 128 It also seems to follow that if a high standard of care is to be imposed, one must be able to identify the breach thereof. 129 However high the standard of care might be there remains, in my opinion, the necessity to find that there was a failure to meet the standard. That is not achieved by finding, as Mr Toomey’s submissions demand, that the dangerous substance, in the present case the seed, was taken onto the land and escaped. Therefore, whether the case in respect of strict liability be that that occurred without reference to any activity on the second header prior to its going onto the 650 paddock, or that it occurred because of non-negligent work on that header before it did, the claim must fail unless the negligence is identified and the manner of breach is found. Of course, in the present case, it may have been that the identification of the negligent act or omission would have led to the inference that it enabled the Parthenium weed seed to escape. It is not necessary to pursue that question because the negligent act or omission was never identified. For present purposes it is sufficient to say that taking the second header onto the 650 paddock when Parthenium seed was in it does not, without more, constitute negligence. 130 In my opinion his Honour’s finding that Katena or the Schafferius outfit was negligent in the manner he did cannot be sustained. Nor, in my opinion, can the Notice of Contention. 131 His Honour also found that the State was liable for negligence. In doing so, his Honour made, in my opinion, a telling observation against his finding for the respondents against Katena. He said:-
“Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur. Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains ‘that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances’. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of ‘reasonable care’ may involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety’.”
132 The absence of evidence was, obviously, telling, and, in my respectful opinion, is inconsistent with his Honour’s earlier finding of negligence against Katena, which depended on the unspecified work creating a situation, which required the taking of adequate steps to prevent the escape of the seed. The later finding was that there was no evidence as to how the seed was dislodged. His Honour then said that that did not end the matter because:-
“Since there is no evidence of where on the header, the seed was trapped, nor of how it was dislodged, it is impossible to say in what particular respect the inspection needed to be improved in order to locate the seed.”
133 In my respectful opinion his Honour’s finding against Katena does not establish, on the balance of probabilities, that there was any negligence on its part. In Seltsam Pty Limited v McGuiness (2000) NSWCA 29 the question of proof was considered at length. In paragraph 80 the Chief Justice stated that the common law test of balance of probabilities was not satisfied by evidence which fails to do more than establish a possibility: St George Club Limited v Hines (1961-1962) 35 ALJR 106 at 107; Bonnington Castings Limited v Wardlaw [1956] AC 613; Tubemakers of Australia Limited v Fernandez (1976) 50 ALJR 720; and the cases referred to in paragraph 82. 134 His Honour nextly considered distinguishing between permissible inference and conjecture. He referred to Jones v Great Western Railway Co (1930) 47 TLR 39; Carr v Baker (1936) 36 SR (NSW) 301; Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152; and Luxton v Vines (1952) 85 CLR 352. 135 In paragraph 97 he set forth a passage from the judgment of Kitto J in Jones v Dunkel (1959) 101 CLR 298 at p.305, where his Honour said:-
“The seed was dislodged in the course of work done on the machine which took somewhere between one half and one hour.”
He further said that a thorough inspection by the State “would have uncovered the seed which was subsequently dislodged by employees of the first and third defendants”.
136 In the present case I do not consider that the cause of the seeds’ escaping was ever established. The respondents at trial sought to prove a specific event, namely the repair to the header. They failed. Thereafter, leaving aside for present purposes the allegation of failure to clean the header properly at the border, they were left with evidence that employees of Katena, for that I am prepared to infer, were seen “clambering” on the header. There was not a skerrick of evidence as to what they were doing and, whilst it may be inferred that they were engaged in some form of work, there was no evidence to support the conclusion that that work was done in a negligent way such as to cause Parthenium weed seed in the header to be released. There was no attempt to prove that the earlier servicing of the header or its adjustment to harvest oats, both of which activities involved some work on it, caused the seed to be dislodged. In these circumstances it seems to me that his Honour’s finding was speculative. This result is increased when one has regard to the minute amount of seed which apparently escaped and the difficulty of seeing and identifying it.
“.. I agree that no ground for an inference is to be found in general considerations as to the likelihood of negligent conduct occurring in the condition which existed at the time and place of the collision. One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.”
137 The “statutory count” against the State failed before his Honour and Mr Toomey conceded that it could not succeed. The respondents’ case against the State was, accordingly, that it failed to exercise reasonable care in performing its statutory functions pursuant to Ordinance 6(4). 138 His Honour accepted that Mr Billing was basically unsuited to inspecting headers. He recorded Mr Billing’s admission that he had no experience of headers, had never driven one, worked on one nor did he know the internal mechanisms of one. He had never seen a Parthenium seed, although on the evidence this may not be surprising. His Honour continued:-
The Liability Of The State
139 His Honour dealt with causation. He found that the seed “was obviously not removed” when the headers were cleaned before crossing the border and “was therefore in the machine when it was inspected at the border”. However, he continued:-
“Given a system which employed inspectors within adequate knowledge and experience combined with inspections which, given the short time devoted to them, could be little better than cursory, I have no difficulty in finding a lack of sufficient care on the part of the second defendant in the conduct of border inspections generally and in the inspection carried out on the first defendant’s headers at Mungindi on 9 November 1992.”
140 He referred to a submission on behalf of the State that the respondents had to prove:-
“But such facts do not establish the necessary causal connection between the second defendant’s negligence as I have found it, and the infestation of the plaintiffs’ property.”
141 His Honour said:-
“.. that a careful inspection, up to the standard reasonably to be inspected, would have discovered the seed and prevented its transportation into New South Wales. This is without doubt the most difficult aspect of the case against the second defendant as far as the plaintiffs are concerned.”
142 In my opinion the evidence did not establish that the negligence of Mr Billing, for whom the State is vicariously liable, or the negligence of the State in appointing Mr Billing to carry out the inspection, was causative of the escape of the seed. 143 Ordinance 6(4) did not impose an absolute duty on the State to ensure that there was no Parthenium weed seed in the header. It required compliance with the inspector’s directions to remove any seed to his satisfaction and required him to be satisfied that the header was free of such seed. The question posed is, therefore, whether had Mr Billing been better trained or had he carried out a more thorough inspection, he would have found this minute amount of seed which could hardly be seen by the naked eye. In my opinion, that question cannot be answered in the affirmative. Mr Billing was presented with a machine, which had the appearance of having been cleaned properly or, to use his Honour’s words, cleaned in accordance with “best practice”. He may not have appreciated that, but the facts were that that was the way in which the header had been cleaned. Therefore, the appearance matched the actuality. It was not in issue that that method of cleaning or, indeed, the Western Australian method of cleaning would not remove every seed. 144 Accordingly, whether Mr Billing was trained in his work or good at it, the evidence does not support the view that any lack of care on his part, which I think it should be added was not suggested to be deliberate, was causative of the header being allowed to pass into New South Wales. Even a person experienced in such an inspection, who had carried out a reasonable inspection, would not, in all probability, have found this seed which remained within the header whilst it harvested several properties and a substantial part of the respondents’ properties before it was discharged from the header. 145 In the result I am satisfied that even if the State was negligent in the way his Honour found, the respondents have not established, on the balance of probabilities, that that negligence was causative of the spread of Parthenium weed seed on the 650 paddock.
“Since there is no evidence of where, on the header, the seed was trapped, nor of how it was dislodged, it is impossible to say in what particular respect the inspection needed to have been improved in order to locate the seed. However, this is not the end of the matter. The seed was dislodged in the course of work done on machines which took somewhere between one half and one hour. It is most unlikely that the work involved the dismantling of the machine beyond that which a reasonably thorough inspection process would have required. It is therefore more likely than not that a thorough inspection, sufficient to meet the high standard which the danger of infestation and the second defendant’s own policy of eradication required, would have uncovered the seed which was subsequently dislodged by employees of the first and third defendants. In that sense, the second defendant’s negligence materially contributed to the harm caused by the infestation to the 650 paddock …”
I have referred to the concluding passage in relation to the liability of the State.
146 In my opinion, the respondents failed to establish that either Katena, which I consider to be the only defendant connected with the Schafferius outfit able to be made liable, or the State is liable. I would, accordingly, propose that each appeal be upheld and that there be judgment for the appellants. The respondents must pay the appellants’ costs of the hearing and of the appeal and should have a certificate under the Suitors Fund Act if otherwise entitled. 147 FOSTER AJA: These are two appeals, by leave, from a decision of a judge of the District Court of New South Wales given on 18 June 1998. The appeals were heard together, as were the original proceedings. The learned primary judge found all the appellants liable to the respondents in negligence. The decision was restricted to the issue of liability of each defendant, the question of damages remaining outstanding. It is convenient to set out, by way of background, facts which are not in dispute between the parties.
Conclusions
148 At all relevant times the respondents, George and Martin Buckland together with their wives, Jessie and Penelope Buckland, were the owners of two properties in Central Western New South Wales named "Koorangie" and "Waverley". The properties were located near Condobolin and were used in a pastoral and agricultural business operated by the respondents in partnership. They ran sheep and cattle on the properties and also produced wheat, oats and other crops. The appellant Katena Pty Limited ("Katena") was the trustee of a unit trust of which Peter Bryant Schafferius ("Mr Schafferius") and Robert Dean Sawley ("Mr Sawley") were directors. It carried on business as a contract harvester with the trading name Arcadia Valley Farming Company. Messrs Schafferius and Sawley were each actively engaged in the business. Katena's activities were centred in Queensland, but it also carried out extensive contract harvesting work in New South Wales. From 1988 to 1992 it harvested the crops raised by the respondents on "Koorangie" and "Waverley". It is clear that the respondents had a high regard for the efficiency of Messrs Schafferius and Sawley. The harvesting work was performed with machinery owned and operated by Katena, being combine harvesters ("headers") and associated support vehicles. In each year harvesting work was performed on properties in Queensland and, thereafter, in New South Wales. In effect, the harvesting equipment was brought, on an annual basis, from Central Queensland to Southern New South Wales, harvesting crops on properties along the route. 149 In November/December 1992 harvesting was performed on the respondents' properties. Use was made of two headers being John Deere 9600 combine harvesters, together with support vehicles. This machinery had been brought south from Rolleston in central Queensland. Harvesting had been performed on properties in Queensland, after which the machinery was brought into New South Wales, crossing the border at Mungindi. Harvesting then took place on properties in New South Wales, before the machinery was brought to the respondents' properties. 150 The harvesting on the respondents' properties was mainly of a wheat crop. However, as the last job on the last day of the work, a small crop of oats was harvested on a paddock, known as the "650 paddock", this being a reference to its acreage. It was situated on "Waverley". The oats which were harvested were taken from the paddock and placed in a storage bin. Some of them were later used by the respondents for sowing an oat crop. 151 The 650 paddock was not sown to a crop in 1993 or 1994. In April 1994 George Buckland visited the paddock and was alarmed to see an infestation of a weed which he considered to be dangerous. In the course of the next two days the weed was identified as Parthenium weed. This is a declared noxious weed in New South Wales. The 650 paddock was put under quarantine and eradication measures were undertaken, under the supervision and control of the New South Wales Department of Agriculture and the Local County Council. It appears that these measures, which were extensive, prevented the spread of the weed beyond the 650 paddock. No other areas of the respondents' properties were affected by the weed. Nor were any of the properties in New South Wales which had been harvested by the appellants on their journey to Condobolin in 1992. Nor were any of the properties which were subsequently harvested in that year in New South Wales by Katena's machinery. 152 In his careful judgment, the learned primary judge made the following findings in relation to Parthenium weed. They are undisputed and it is convenient to repeat them in these reasons:
Background153 Evidence was also given, which appears to be undisputed, that in conditions unfavourable for germination, parthenium seeds can lie dormant for three or four years. Also, the seeds, themselves, are particularly small, being roughly equivalent in size to a grain of black pepper. They are, correspondingly, light. It is also clear that the presence of the weed on a property, having regard to its dangerous propensities and its ability to spread rapidly, can have a significantly adverse effect upon that property's value. 154 In 1990 the appellants had also conducted harvesting operations upon the 650 paddock. A crop of wheat was removed for the respondents. In addition to using Katena's harvesting machinery Mr Schafferius used the services of Mr Weir, a contractor from Queensland. Mr Weir provided cartage for the harvested wheat from Waverley to the Condobolin silos. In so doing, he used his own vehicles which had travelled from Central Queensland, in the same way as the appellant's headers. Like the appellant's machinery, Mr Weir's vehicles had operated in the parthenium infested areas of Queensland before crossing the border into New South Wales. Unlike the appellant's machinery, however, Mr Weir's vehicles were not required to submit to any inspection at the border crossing by the New South Wales authorities. This inspection was conducted under regulatory powers, to which reference will be made later, and was designed to prevent the introduction into New South Wales of noxious plants such as parthenium. Mr Weir's vehicles came on to the 650 paddock in 1990. However, there is dispute in the case as to the extent of the work performed by them in the paddock and the location in the paddock of that work. 155 Between the harvest in late 1990 and the harvest in November/December 1992, the respondents used the 650 paddock for crops. There was a crop of wheat or barley in 1991. This had required the preparation of the soil by ploughing. There was no observable evidence in 1991 of the presence of parthenium weed in the paddock during the preparation for the crop. Nor was there any evidence of the presence of the weed when the crop was taken off. In 1992 the oat crop was sown. Parthenium weed was not observed to be present at that time. The crop, which was the one harvested by the appellants, was a poor one. Only portion of it was worth harvesting. No parthenium weed, at any stage of development, was observed to be present amongst the oat crop at the time of the harvest. 156 The State of New South Wales, the appellant in the first appeal, was sued as second defendant by the respondents in the Court below. There is no dispute that it was charged with the responsibility, under a regulatory regime to which reference will be made later, of inspecting, at the State border, "any prescribed agricultural machine" coming from Queensland into New South Wales to determine the presence of Parthenium weed including its seeds. In prescribed circumstances an inspector appointed under the relevant provisions was required to issue a permit for the entry of the machines into New South Wales. An inspection point and border crossing was established at the town of Mungindi. Prior to the entry of Katena's machinery into New South Wales in 1992, an inspector, on behalf of the State of New South Wales, provided a permit which enabled the introduction of the machinery into the State. 157 The issuing of the permit was preceded by an inspection of the two headers. This was criticised by the respondents as being totally inadequate, a matter to which I shall return. However, the prior cleaning operation performed on the two headers, under the supervision of Mr Schafferius, occupied nearly two days and was accepted by his Honour as being of "best practice" standard. The cleaning occurred before the machines were presented to the inspector at the border. It is not disputed that they would have given the appearance of having been thoroughly cleaned. 158 It is clearly established, however, that these cleaning procedures fell well short of those required at the Western Australian borders. There a full dismantling and meticulously thorough cleaning of all parts of the machines is required, an operation occupying some ten days and, according to the evidence in the case, is commercially quite unviable. It may be noted, however, that it was undisputed that even cleaning to the Western Australian standards could not guarantee in all circumstances the removal of all parthenium seed from every space and crevice of machinery such as headers. Because of the tiny nature of the seed it could be trapped and remain undiscovered in parts of the machinery which were difficult to reach. However, it can also be regarded as established that parthenium seeds, even if undetected, could be sterilised by spraying potentially affected areas of the machinery with diesoline. This process was messy and unpleasant and not welcomed by the owners and operators of the machinery. Nevertheless diesel sprays were available at the inspection stations and were, in any event, carried by header operators. 159 As his Honour's findings involved considerations of work allegedly done on one of the headers, a John Deere 9600, prior to its being used for the harvesting of the oats in the 650 paddock, it is convenient to set out his description of such a header, the accuracy of which has not been contested. His Honour said:
"Parthenium weed, parthenium hysterophorus , a native of the Caribbean region, is thought to have found its way to Australia during World War II . The first reported sighting was in Toogoolawah in Queensland in 1955; the second was in the central highlands north of Clermont in 1966. No particular attention was paid to these early out breaks and the weed subsequently became well established in Central Queensland. In A Control Strategy for the Control of Parthenium Weed (Attachment E to the Taylor Byrne-Exhibit 1.2), Mr Ian Kelly, Chief Weeds Officer with the Castlereagh Macquarie County Council, who gave evidence in these proceedings, estimated an area of 170,000 square kilometres from Injune in the south to Charters Towers in the north to be heavily infested with the weed in 1993.
The parthenium plant grows to a height of between 1 and 1.5 metres and can grow as high as 2 metres. It branches profusely when flowering, producing a mass of creamy white flowers which continue to blossom until the plant dies. Photographs of the weed (Exhibit E) taken immediately after its discovery on the 650 paddock during the commencement of its eradication show the plants in full flower. In favourable conditions the parthenium weed can germinate, flower and seed within four weeks. Six weeks is not unusual. The seed pods are small (1-2 mm across), flattened and dark brown to black with two thin white scales. An average plant can produce up to 15,000 seeds in a growing season. Seeds can be spread via watercourses, vehicles, machinery, (especially harvesters and earth moving equipment), stock, feral and native animals and in feed and seed.
Apart from competing with pasture and reducing carrying capacity, the weed can cause respiratory problems and severe dermatitis in humans and animals, especially horses. It has also been known to taint milk and meat from stock which has eaten the weed."
160 Against this background I now turn to consider the case as presented to the learned primary judge and his reasons for judgment.
"At the front of the machine is the part, known as the header, from which the machine gets its popular name. The header, that is the part at the front, is a platform of adjustable height and, on the John Deere 9600, 30 feet wide, which houses a comb and rotating knifes for cutting off the grain. The cut grain is carried through the feeder house into the cylinder/concave area where the threshing takes place. At this point up to 90% of the grain seed is separated from the straw (stalks and chaff) and the straw is carried by a beater over the beater grate into straw walkers. These consist of a series of plates, steep at first, over which the straw is carried in an upward direction and is shaken and "fluffed" as it goes to remove what is left of the seed. The straw that remains at the top of the straw walkers is passed or blown out of the back of the machine. The grain seed is fed through sieves and an elevator into a bin behind the driver's cabin, which is situated above the rear of the feeder house, giving it an unrestricted view of the crop in front and to the side of the header. These were the type of headers used by Schafferius outfit to harvest crops on the 650 paddock in 1990 and 1992."
161 It is convenient to consider, in the first place, the case brought against Katena and Messrs Schafferius and Sawley and his Honour's decision in relation thereto. The case against the State of New South Wales involved different evidence and considerations and it is convenient to consider it later. 162 His Honour indicated, correctly, that the case against Katena and Messrs Schafferius and Sawley depended upon inference rather than direct evidence. After dismissing a claim based on contract, which has not been the subject of appeal, his Honour stated the issues for determination as follows:
The case below:163 There were two headers involved in the stripping of the crop. The first was driven by Craig Griffiths, the second by Bart Simpkins, both men being employees of Katena. His Honour found that the infestation occurred as a result of seeds being distributed from the second header, the one driven by Simpkins, during the harvesting of the oats. No seed was distributed by the first header. The first header had commenced the stripping operation and was engaged in it for half an hour to one hour before the second header joined in. For a portion of the time in which the first header was operating, George Buckland was seated beside the driver, Craig Griffiths. His Honour accepted that the reason for his presence was to enable him to direct Griffiths as to the portion of the oat crop which was to be harvested. The rest of the crop was not worth harvesting because of its poor and sparse nature. Mr Buckland's evidence was in conflict with that of Griffiths. Mr Buckland gave detailed evidence as to the course taken by each of the headers. He illustrated this evidence with a coloured sketch plan which became Exhibit D. He testified that the first header entered the crop and, at his direction, was driven round the boundary of the whole portion to be stripped. The boundary so established was for the guidance of each of the headers. More than one round of the whole area was travelled for this purpose, as appears from Exhibit D and from his oral evidence. 164 When the total area of approximately 60 hectares had been thus defined, Mr George Buckland, according to his evidence, then directed that the header be driven across the area in a roughly east west direction, thereby dividing it into a small area of approximately 8 acres to the south and a much larger area, being the balance of the crop to be harvested, to the north. The first header then proceeded to continue the stripping of this northern area, which it did by proceeding in parallel lines moving from the outer edges of the crop towards the centre. After it had made "a few rounds" Mr Buckland left the header, which continued with the stripping operation of the northern portion. 165 Thereafter, as depicted in Exhibit D, the southern area was stripped by the second header which, having completed that task, then joined the first header in the northern portion and, in combination with it, completed the stripping. 166 Exhibit D, through the use of pink colour to depict the course taken by the first header and yellow colour to depict the course taken by the second header, clearly illustrates Mr Buckland's evidence. Unfortunately the reproduction of Exhibit D in the appeal book does not show these colours. The original, however, is quite clear in this regard. 167 Craig Griffiths gave evidence, illustrated by a sketch, Exhibit Y, that the header had taken a different course in the northern paddock. He also testified that Mr Buckland had been with him throughout the whole stripping operation, a period of 3-4 hours. His Honour preferred the evidence of Mr Buckland whom he described as "an alert and discriminating observer whose long experience as a farmer and grazier sharpened his memory on matters close to that experience." He was also satisfied that Mr Buckland had considerable experience in the operating of headers. He also found that Mr Buckland had not invented, with hindsight, the pattern shown on Exhibit D. 168 When Mr Buckland observed the infestation in April 1994, he was of the opinion that its pattern corresponded with the path taken by the second header, in the stripping operation on 3 December 1992. The densest growth of Parthenium weed was in the area where the second header had stripped the southern portion of the crop. The remainder of the infestation, or most of it, followed the path of the second header in the northern portion. Mr Ian Kelly, an expert witness called on behalf of the respondents, the Chief Weeds Officer for Castlereagh/Macquarie County Council and very experienced in the eradication and control of Parthenium weed in New South Wales, lent support to this view. He had observed, in the course of his activities, Parthenium infestations in paddocks in circumstances where it was quite clear that the infestation had arisen from the spreading of Parthenium seeds by a header. In his opinion the pattern of infestation in the 650 paddock was entirely consistent with Parthenium seeds having been spread during the 1992 harvesting operation. Indeed, he stated that, having regard to the spreading propensity of the weed, the whole observable infestation could have been occasioned by the scattering of less than a thimble full of seed at that time. The growth that he observed in April 1994 could readily have been achieved by two cycles of growth and seeding in the affected area. Indeed, his view was that if a further season had elapsed without the implementation of eradication methods, the entire 650 paddock would have been covered with the weed. 169 Other witnesses also supported the view that the pattern of infestation pointed to spreading of seed during the operation of the harvester. Although there was evidence that the seed could be spread in various ways, there appears to have been no significant opposition to the contention that, in the case of the 650 paddock, it was spread by the operation of the second header. His Honour so found. 170 A significant contest in this part of the case was between two hypotheses, the first advanced by the respondents, the second by the appellants. The first was that, as a result of repair work done to the second header in the period of time which elapsed before its joining in the harvesting work, seeds that had previously been secreted in the interstices of the machine were liberated, with the result that they "trickled" out of the machine, whilst it was engaged in the harvesting operation, the bulk of the seeds leaving the machine at the early stages of the harvest in the southern portion and the remainder being liberated slowly as the machine completed its work in the northern portion. The alternative hypothesis was that the seeds that were spread by the harvester were not seeds that had come with it from the infested areas of Queensland, where it had been working, but derived from Parthenium weeds that were growing and in seed amongst the oat crop that was being harvested. These plants, it was contended, were the result of earlier seeding in 1990. The seeds were introduced into the paddock by Mr Weir's vehicles which assisted in the 1990 harvest; if not Mr Weir's vehicles, then other vehicles from Queensland which had been in the area at the time. The second hypothesis, then, accepted that the infestation was occasioned by the operation of the header but asserted that the appellants were not responsible for the presence of the seed that was spread during the harvesting. 171 The first hypothesis was supported by the evidence of Mr George Buckland and his son Martin. Each said that the second header had been stationary near the entrance to the 650 paddock for a period of time before it entered upon the harvesting operation. There was some conflict as to the period, but his Honour accepted that, as already indicated, it was stationary for half an hour to an hour. During that period Mr George Buckland and also his son saw two or three men clambering about the header in ways strongly suggesting that work was being done upon it. Mr George Buckland saw the men about the top of the machine and going inside it. With his knowledge of headers he was of the view that what he observed went beyond activities which might be associated with the mere servicing of the machine. Work of a more fundamental nature was being done. From his observations he was, however, unable to determine what the work was. Nor could his son assist him in this regard. 172 However, a case was sought to be made that repair work had been undertaken prior to the movement of the header into the crop. Indeed, it was asserted that the men who had been observed were engaged in repairing or replacing a crankshaft essential to the operation of the straw walker apparatus and that this exercise was capable of dislodging Parthenium seed which had hitherto been hidden by and kept out of harms way in crevices and behind plates which were necessarily disturbed by the work. Support for this proposition was sought in evidence of purchases made by Mr Schafferius from a local supplier of header parts, appropriate to such a repair operation. 173 This part of the respondents' case failed. His Honour was impressed with Mr Schafferius as a witness. He accepted his evidence that the parts in question had not been purchased for any such specific repair operation but were obtained in order to maintain his stock of replacement parts which was regularly carried with the headers. This finding of his Honour has not been attacked in the appeal. 174 His Honour was, however, satisfied that some work was done on the header by the men observed to be clambering about it but he was unable to determine, on the evidence, what that work was. 175 His Honour rejected the appellants' hypothesis. He did so for a number of reasons. He accepted the evidence of Mr George Buckland, whom he regarded as a satisfactory witness, that the oat crop was sparse and did not impede visibility of the area in which it was growing. He accepted that Mr Buckland could have seen the Parthenium weed amongst the crop if it were present, especially having regard to the height that it would have achieved before it set seed. Moreover, if the Parthenium weeds were present as a result of seeds dropped in 1990, having regard to the seasons between then and April 1992, there would not have been merely a few weeds in 1992 but, more probably, an infestation approaching that which was observed in 1994. Furthermore the 650 paddock had had crops planted, to which reference has already been made. During the preparation of the paddock and the planting and harvesting of those crops, Parthenium weed would have been observed if it were then present, as a result of dropping of seed in 1990. 176 His Honour, also, preferred the evidence of Mr Kelly to that of Mr Chapman, an expert in the operation of headers, who had given, as his opinion, that the amount of infestation observable in 1994 could not be accounted for by seeds that might have been liberated from parts of the header during the harvesting process. The infestation was too large to be accounted for in this way. Mr Kelly, whose expertise in relation to Parthenium weed was clearly superior to that of Mr Chapman, was accepted when he indicated that the amount of seed necessary to cause the infestation in 1994 could very well have come from deposits within the header during the 1992 operation. Mr Kelly had accepted that it was possible for Parthenium seeds to be spread by a header as a result of Parthenium plants being harvested along with another crop. However, he preferred the view that the infestation that he saw in 1994 was caused by seed "trickling" from a header during the harvest. 177 This was consistent with the pattern that he observed, in prior infestations that he had examined, when header operations were clearly implicated. 178 The possibility that Parthenium seed had been sown with the oat crop in 1992 was not accepted by his Honour. The oats had been purchased from a reputable local supplier, there being no suggestion that weed seeds would have been included in his supplies. Also, if Parthenium seed had been harvested along with the oat crop in 1992, it was suggested that some of that seed, however light it was, would have found its way into the collecting bin of the header. That being so it might be expected that when the oats were later sown to produce another crop, Parthenium would also have appeared. This did not in fact occur and was strongly suggestive of the fact that there had been no harvesting of Parthenium at the time when the oats were harvested. 179 His Honour also rejected the proposition that the Parthenium infestation in 1994 could have resulted from the operation of Mr Weir's trucks. Although those trucks might have carried Parthenium seeds from Queensland they were not, on the evidence operating in the area where the Parthenium infestation occurred. Their operations could not have produced a growth of Parthenium which might have been harvested along with the 1994 oat crop. 180 His Honour, therefore, rejected the appellants' hypothesis and partially rejected the respondents'. He remained, however, "satisfied, on the balance of probabilities, that Parthenium seed was brought and distributed on the 650 paddock by a header belonging to the first defendant on 3 December 1992." There remained, for consideration, the question whether "the release of the seeds was a result of some breach of duty" on the part of the appellants. 181 His Honour, after excluding certain heads of negligence, which had been pleaded by the respondents, focused attention upon the significance of the work observed to have been in progress on the header, before it was introduced into the crop. It is convenient to quote the following extract from his Honour's judgment in this regard:
"The real issues in this case and the ones which the plaintiffs bear the onus to prove are whether the infestation of the 650 paddock by parthenium weed was the result of the stripping of that paddock by one or more of the first defendant's headers on 3 December 1992 and, if so, whether such infestation could be attributed to the negligence of Peter Schafferius or those under his supervision."
182 His Honour then turned to consider the standard of care that should be imposed upon the appellants. He considered the principles expounded in Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 which were relied upon in the respondents' statement of claim. He noted that the majority judgment, whilst abolishing, for Australia, the rule in Rylands v Fletcher, pointed out that the standard of care in negligence varied with the magnitude of the risk of an accident and the seriousness of its potential consequences. He noted that the Bucklands relied upon the following statement in the judgment: (179 CLR 520 at 554).
"I accept that no act of changing a part on the header was proved but this absence of proof of a specific act does not exclude the plaintiffs from relying on an inference that if the header spread seed it could only have happened if work of some kind was done on the header before it commenced work on the paddock and in the course of that work Parthenium seed was dislodged.
Witnesses gave evidence that a John Deere 9600 contained a number of parts in which debris could become trapped and hidden in such a way that even a thorough cleaning of the kind carried out by the Schafferius outfit would not necessarily remove it. If the seed was to be dislodged and blown out of the back of the machine but not find its way into the grain bin, it is more likely that it was trapped in areas such as the straw walkers or rear axle. The latter was singled out for particular emphasis by Mr Ivan MacDonald in his written statement with accompanying photographs (Exhibit U).
In his written statement (Exhibit N) Mr Kenneth Chapman, a contract grain harvester of thirty years experience, identified failure of a walker crank as the mechanical problem which actually required attention and which had been the source of the Parthenium seed which was later distributed on the 650 paddock. However, it was clear from Mr Chapman's oral evidence that he had been led to this particular conclusion by reports circulated at the time of what had occurred on the Buckland's property. His evidence therefore does not establish the actual location of the Parthenium seeds but it does identify one other location on a John Deere 9600 where Parthenium seed could be trapped and later dislodged if work of that kind was done on the machine. There were, I am satisfied, a number of places on the John Deere 9600 where seed could have been trapped sufficiently to avoid removal when the machine was cleaned but capable of dislodgment when released by removal of, or interference with some part. Some such parts were situated in areas where the seed once dislodged would not necessarily find its way into the grain which had been harvested but could be blown or shaken off the machine as it was working the paddock. Mr Alistair Henderson, the author of the Taylor Byrne Report On the Outbreak of Parthenium Weed (Exhibit 12) conceded in cross-examination that material lodged in cavities in headers might be loosened by probing the cavity with a piece of straw. Such material could be loosened if "hit with a hammer or bumped or pushed apart".
183 Reference was then made to the significantly dangerous qualities of Parthenium weed and the serious consequences to a property owner of an infestation, which could result in the infested area being taken out of production for many years with a significantly deleterious effect upon the value of the whole property. He also emphasised the fact that Mr Schafferius, coming from a heavily infested part of central Queensland and having such an infestation on parts of his own property, was well aware of the magnitude of the risk of spreading the seeds. His Honour then stated:
"… Depending upon the magnitude of the danger, the standard of "reasonable care" may involve "a degree of diligence so stringent as to amount practically to a guarantee of safety".
184 His Honour then made the following findings:
"There was, in such circumstances, an especially high standard of care imposed on the defendants to prevent the contamination of land in New South Wales from seed carried on their harvesting machinery. This included steps to ensure that no work was done on the machinery once in New South Wales which might dislodge Parthenium seed not removed by ordinary cleaning processes, or if such work was undertaken, steps would be taken to destroy or sterilise any dislodged Parthenium seed."
185 His Honour then made reference to a pamphlet which was in evidence before him. It was issued by the New South Wales Government and was entitled "Clean Your Header - Keep NSW Parthenium-Free". The pamphlet listed nineteen separate points on a header which should be checked in the cleaning operation for the removal of noxious weed. He noted that the evidence established that Mr Schafferius had, in the cleaning operation at Mungindi, attended to the nineteen points. However, there was a further requirement in respect of ten of the points that they "must be thoroughly sprayed with diesel to sterilise weed seed material that may be trapped in cavity areas". There was no evidence that this requirement had been complied with either at the border or thereafter. Although his Honour does not make specific mention of this, his finding that unsterilised seed was spread from the header would indicate, clearly enough, that this precaution had not been taken. 186 His Honour, accordingly, found Katena, and Messrs Shafferius and Sawley, liable to the plaintiffs in negligence. 187 Before considering the case brought against the first appellant, the State of New South Wales, his Honour's decision, and the appeal from it, it is convenient to consider the appeal against the decision that I have just considered.
"I am satisfied that work of some kind was done on the second header on the morning of 3 December, 1992 before the header proceeded to assist in the completion of the stripping of the 650 paddock and that in the course of that work, Parthenium seed was dislodged and subsequently spread as the header worked the paddock. I find that there was negligence on the part of the employees of the defendants, in failing to take adequate steps to prevent the escape of Parthenium seed from the header, having worked on the header."
188 It was asserted in this appeal that, in the event of causative negligence being found, only Katena and not Messrs. Shafferius and Sawley could be found liable to the respondents. I shall return
The appeal of Katena and Messrs. Shafferius and Sawleyto this ground. On the issue of negligence, an attack was made on his Honour's finding that the seed spread by the second header on the 650 paddock was seed carried in the machine from Queensland. It was asserted that the appellants' hypothesis that the seed came from Parthenium weed already growing in the oat crop was at least as likely to be correct as the appellants' hypothesis, in which case the appellants were entitled to a verdict ( Luxton v Vines (1951-52) 85 CLR 352). It was also submitted that, even if it was Queensland seed that came from within the machine, there was no evidence that its dispersal resulted from any negligent act or omission on the part of the appellants.
189 In relation to the first submission the same arguments were put to this Court as had been put to his Honour, perhaps with some changes of emphasis. 190 An attack was made upon what was described as the "trickle" theory. The term came from the evidence of the expert witness Mr Kelly. As already noted, he explained the pattern of infestation on the basis that seed "trickled" from the machine during its harvesting operations. The term was used in conjunction with his evidence that very few Parthenium seeds would have been needed to produce the high degree of infestation visible in 1994. 191 It is unfortunate that the term was not more closely defined in the evidence. A reading of Mr Kelly's testimony, written and oral, does not produce a clear picture of how the trickling occurred; in particular, whether the term was meant to convey that small amounts of seed would drop to the ground from the interstices of the machine, from one or more of the many places where it could have been trapped, by some unexplored route, or whether the seeds, being extremely light, would, from time to time, be emitted from the machine by way of the air blast which dispelled, from the back of the machine, unwanted products of the threshing operation. However, I do not accept that this difficulty destroys the overall effect of his evidence. 192 His thesis appears to me to be that cleaning procedures, sufficient to permit a header to pass from Queensland into New South Wales, even if they conform to "best practice" cannot remove all Parthenium seed. The seed can lodge in crevices and behind plates and in other inaccessible areas where cleaning procedures will not reach it. From those areas it can be dislodged by work done in their vicinity. Once dislodged, it can be dispersed from the machine whilst the machine is stripping. A very small quantity of seed so emitted is capable, in the right conditions, of germinating and producing a plant which through rapid growth and setting of seed can swiftly cause an infestation. Although it is apparent that he relied to some extent on information provided to him by Mr Buckland, as to a particular repair having been effected to the header before it commenced to operate, I am satisfied that his evidence does not stand or fall on the substantiation of that information. His evidence is too general to be tied to one hypothetical repair operation. Indeed, in answer to the question as to how much work would have to be carried out on a header to disturb seed he answered that "it could be the smallest amount of work or it could be a major job." I am satisfied that the effect of his evidence is that once even a small amount of Parthenium seed, previously trapped within the machine, was dislodged, then it could be emitted from the machine whilst it was in operation at various times during the course of its work. The dislodging could be caused by work within the machine of varying kinds. This evidence accords with other evidence in the case, particularly that of Mr McDonald to whose evidence his Honour made reference in the passage cited. In my view, the attack on the "trickle" hypothesis failed. It is based upon an erroneously narrow interpretation of his evidence. 193 It was also submitted, as I understand it, that the "trickle theory" was unsustainable because the bulk of the Parthenium infestation in 1994 was in the small southern section. It was put that the trickle theory could not account for a greater infestation in this area as against the significantly smaller areas in the northern section, the consequence being that it was more likely that undetected Parthenium weeds were harvested in the southern section and the seeds disbursed almost immediately. I can see no substance in this submission. The "trickle theory", despite its unfortunate terminology, does not, in my view, on a fair reading of the evidence, require that there be a methodical and measured emission of seed. Where a dislodging has occurred which is amenable to the air blast of the machine in operation, there is nothing to suggest that the whole of the dislodged seed would be removed from the machine at the one time. Mr Kelly obviously accepts that the more intense infestation in the southern section and the smaller infestation in the northern section could be accounted for by the dislodging of seed within the machine and its subsequent spreading in varying amounts. 194 It is undoubtedly true that the respondents' case would have been assisted by a more detailed exposition of the way in which Parthenium weed, when dislodged from places of entrapment in the machine, could be expelled from it. However, in my view, there is adequate evidence to establish that it is more probable that the seed came from within the machine, from places whence it had been dislodged, rather than that seed had been harvested from the paddock during the stripping operation. 195 In my view, his Honour was quite correct in rejecting the "harvesting" theory. On the evidence, it is virtually inconceivable that Parthenium seeds introduced from vehicles, other than the appellants' and Mr Weir's, during the 1990 harvest, could have produced Parthenium weeds concealed amongst the sparse oat crop in 1992. The paddock was put to crops twice thereafter, without any sign of the weed. With its capacity to spread it would surely have been very much in evidence before 1992. Moreover his Honour accepted Mr George Buckland's evidence as to his observations in 1992 as detailed in Exhibit D. The effect of his evidence is that the Parthenium outbreak found in 1994 followed the track of the second header. If there had been concealed Parthenium weed in the oat crop it would be most unlikely that the first header would not, also, have inadvertently harvested some of it, with the result that the later infestation would have also followed in its tracks. On the basis of Mr Buckland's evidence, as accepted by his Honour, this did not happen. 196 I am satisfied that the "harvesting" theory does not share equal probability with the "trickle" theory. This ground of appeal must fail. 197 I turn then to the next attack made on his Honour's decision, namely that the evidence fails to establish negligence on the part of the appellants. This raises more difficult questions. 198 The respondents' case on negligence was founded upon the performance of work upon the second header prior to its entering upon the stripping of the oat crop. His Honour was unable, on the evidence, to determine what work had in fact been done. Moreover, an attempt by the respondents to establish the performance of a particular repair, based upon the purchase by the appellants of particular spare parts, as has been seen, failed. In these circumstances it is and, no doubt, was the submission of the appellants that no finding of negligence can be made. If it could not be established that the appellants' employees were performing particular activities in and upon the header then there was no basis for the attribution of negligence. Also, if those activities were unknown, it was impossible to attribute foreseeable risk to their performance or to enter upon a consideration of what reasonable steps might have been taken to prevent the risk eventuating. 199 His Honour clearly did not accept these arguments and, in the passages set out above, found negligence in the manner and for the reasons that he gave. Was he correct in so doing? 200 Obviously, his Honour did not have before him evidence of the kind referred to above. It is important, however, to consider what he did have. In the earlier passage cited above that material is stated in compendious fashion. It is convenient, however, to refer to some of the evidence as it was actually given. This evidence, of course, needs to be considered against the background that the second header contained within it Parthenium seeds transported from its work in Queensland and which had not been emitted from the machine during the course of any of the prior work done by it in New South Wales, including work done on other crops of the respondents in November/December 1992. Logic demanded that there be a reason for its dropping of Parthenium seeds during the harvesting of the oat crop on the 650 paddock and only during that harvesting. 201 The evidence relating to the performance of work on the second header comes from Mr George Buckland and his son Martin. Evidence called by the appellants was quite unhelpful. The witnesses had no relevant recollection. Although there was some confusion between Messrs. Buckland Senior and Junior as to the time during which the work was carried out, it is clear that his Honour, having of course observed them in the witness box, was prepared to accept their evidence as basically accurate. 202 Mr George Buckland said that the second header took longer to come to the crop because "they were doing something to it." He observed "men clambering up all over it and in it near the top." Later in his evidence he said "I didn't go close but they were definitely working on the header" and that "they weren't down underneath it or anything, they were near the top and inside it and at the front of it high up." Later he indicated that the straw walkers went "right to the top." He also said that what was being done on the header "just wasn't the normal thing." 203 Mr George Buckland was an experienced header operator and knew the working parts of the second header and how they operated. In relation to the emission of the Parthenium seeds from it he gave as his opinion that "all that seed was right on top of the straw walkers and it walked out and the air going under it never let it come down onto the riddle box, so it didn't get into the grain." (By this he meant the harvested oats.) 204 In further cross-examination he was asked where he said the Parthenium seed came from and he responded that it came from the top of the header. The following exchange then took place:
205 When asked whether he would agree that it was highly unlikely that compacted straw containing Parthenium weed would remain stuck in the straw walker through the whole process of cleaning and the harvesting thereafter of ten or twenty properties from the Queensland border to Coonamble, he said that he did not agree and that it could stick there "because I've seen it happen. Especially if they harvested any summer crop because it is more likely to pack in straw walkers, sometimes it's a bit green." 206 Mr Buckland also advanced the theory that there were other parts on the top of the machine where the Parthenium seed could lodge. These were panels behind which seed could lodge and "until you take them apart it doesn't come out." He further said "it doesn't come out if the header's been cleaned but it's still there until you take them apart." He expressed the view that something had been taken apart because of "the pattern of the header." He agreed that he hadn't seen the men taking anything apart but that the length of time the men were working on the machine indicated that "it wasn't just ordinary service." 207 A reading of Mr George Buckland's evidence conveys the clear impression that he regarded the activities which he observed, over at least half an hour, on the header as being out of the ordinary, not merely routine servicing before commencement of work but amounting to the fixing of something inside the header near the top, as a necessary preparation for stripping the oat crop. He did not know what was being done but raised possibilities based upon his experience with headers and his knowledge of the operation of the machine. 208 I have already made reference to the evidence of Mr Kelly. The evidence of Mr MacDonald, referred to in the passage cited from his Honour's judgment, demonstrated with the aid of photographs a number of areas in a John Deere 9600 header where, despite cleaning, seed could be concealed and dislodged if parts were subsequently disturbed or removed. Mr Martin Buckland gave evidence as to a possible removal of material from the straw walker. He said that in the course of working from the border it could have straw all through it which could lead to the pulling of that straw which may have produced the problem. The removal of that straw could also remove what might have been left there after the cleaning operation at the border, that material containing Parthenium seeds. 209 It is clear, then, that the respondents' evidence contained opinions, based upon experience, and expert knowledge, as to how concealed Parthenium seed could be liberated by work carried out inside the header, particularly in the straw walker area near the top. Apart from the repair work suggested but specifically negated, there appears to be no evidence in the case suggesting that the type of work, the subject of these opinions, was not or could not have been carried out during the activities observed by Mr George Buckland. Indeed Mr Shafferius himself agreed that the walkers constituted an area where debris packs down producing a need "to go in and loosen things up with a screwdriver…because there is little bits and pieces in it stuck." 210 In my view there was evidence before his Honour to found an inference that the Parthenium seed was distributed in the 650 paddock as a result of the work done by the men observed by Mr George Buckland to be clambering about the machine before it commenced to strip. This was outside the area of mere conjecture because the doing of some work in the relevant part of the header had been clearly observed. The inference was also clearly open that it had not commenced work in association with the first header from the outset because it was necessary that work be done on it before it could start stripping. Whatever the work was it resulted in the dislodging of hitherto concealed Parthenium seeds so that they were liable to be emitted from the machine once it was put into stripping operation. It was not possible, of course, in the circumstances for direct observational evidence to be given of the actual work. However, the opinions that were given as to what that work might have been, apart from the failed repair theory, were not negated by evidence from the appellants. 211 In my view, it would have been open to his Honour, in the circumstances, to draw the inference, which would, in the circumstances, be more than mere conjecture, that work was done which involved clearing impacted straw from the slats of the straw walker, which then liberated concealed Parthenium seed. Having regard to the fact that the work was being undertaken in an area where the seeds, if emitted from the machine, could germinate and lead to the sort of infestation of which the operators, coming from the state of Queensland, would have been well aware, his Honour could have found that the doing of the work carried a risk which was far from fanciful. That being so, the work should not have been undertaken in the area where it was, or only with suitable precautions. One such precaution, clearly accepted by his Honour on the evidence, was to spray the areas of risk with diesolene. Having regard to the infestation that occurred it is clear that this available sterilisation procedure was not carried out. 212 In my view, his Honour could have reasoned through to a finding of negligence along these lines. His Honour, however, did not need to do so, as he approached the matter on the basis of the principles expounded in Burnie Port Authority v General Jones Pty Limited (1992-1994) 179 CLR 520. In that case the majority in the High Court subsumed the rule in Rylands v Fletcher into the general law of negligence, indicating that in circumstances where that rule had previously applied, the justice of the case could be met by imposing a very high standard of care upon the defendant. The relevant passage appears in the judgment of the majority (Mason CJ, Deane, Dawson, Toohey, Gaudron JJ) at page 554. It reads as follows: (His Honour cited part of it in his judgment).
"Q. The top of the header?
A. Inside, the straw walkers.
Q. In the straw walkers?
Q. But Mr Buckland, the headers had been working flat
A. Well--
out for some weeks cutting wheat and other crops?
A. Well do you want me to tell you just how I think it
Q. Yes?
came?
A. Well I've driven headers for a jolly long time and
straw walkers have the habit of packing up with straw not as much as they used to but they'd pack up with straw.
Q. Yes, we'll be having a look at one of these John
Q. Whereabouts?
A. On top of them. Have you ever seen the straw walker?A. The straw walkers have got whole lots of, its slats
Deere's?
across it and sometimes they pack up with straw, especially on the front and then as well as straw the seed, any foreign seed would pack up in there too.
Q. You don't know that they were doing…(not
Q. I see right?
A. Now my thought is that that header, they were doing
something to it and--
transcribable)..
A. They took a long while doing it.
Q. All right.
Q. Left it where?
A. And some joker might have just got hold of that bit of
straw and pulled it out and left it there, that's what I
reckon.
A. On top of the straw walkers.
Q. Now if he didn't do that, what does that do to your
theory?
Later he said that he thought the Parthenium was in the compacted straw in the straw walker because "it was up near the top like that because it didn't get into the seed."
A. If he didn't do that well they could have loosened it
when they were doing something to it."
213 I think that it is clear from his Honour's judgment that he regarded the case as one requiring a standard of care involving "a degree of diligence so stringent as to amount practically to a guarantee of safety." I am not prepared to find that his Honour was in error in so doing. One has only to recall the dangerous qualities of Parthenium weed and its capacity to spread, as evidenced not only by the rapid degree of infestation apparently in the present case but, more significantly, by the quite enormous area of infestation in the state of Queensland, to regard the seeds as being seriously hazardous in themselves. The evidence, clearly enough, indicates that the introduction of the weed onto someone's property is quite disastrous. The use of the property is severely restricted for many years until it can be positively proved that the weed has been eradicated. The value of the property is severely diminished. Indeed the expert witness Mr Kelly indicated he would never buy a property affected by the weed. 214 The evidence in the present case clearly indicates that Messrs Shafferius and Sawley, coming as they did from an infested area in Queensland, would have been well aware of the serious danger involved in the spreading of the seeds. Also they would have been fully aware that even "best practice" cleaning procedures could not remove all the seed from the headers. They would also have been aware that interference with areas of the header where Parthenium seeds might be lodged, immune from the cleaning process, could lead to the liberation of seed into the outside world through the operation of the header machinery. The evidence established that dislodging of the seed could occur in a number of ways by work done in the machine. In my opinion, his Honour was correct in holding that the standard of care in the circumstances was such as to require that no steps be taken which might have that effect unless they were accompanied by other steps which would neutralise the deleterious effect of the seeds. Such a step could be the effective spraying of the dislodged material with diesolene. Two things are plain: (a) seed was dislodged by the work, whatever it was, undertaken on the second header before it commenced stripping and (b) seed was not sterilised before it was emitted from the machine. 215 I am satisfied, that, in these circumstances, his Honour correctly found that there had been a breach of the duty of care owed to the respondents. In these circumstances, I do not find it necessary to consider the submission sought to be raised by the respondents in their notice of contention. 216 There remains the question whether his Honour was in error in finding all three appellants liable to the respondents in negligence. 217 This question was dealt with in a fairly perfunctory way in written submissions from both the appellants and the respondents. There had been some submissions made to his Honour on the question of liability of the three appellants in relation to the claim in contract. His Honour dismissed the claim in contract and, as previously indicated, this has not been the subject of appeal. In relation to that claim however he did make some findings as to whether Katena was an undisclosed principal in the contract. There is no need to consider them. In relation to the claim in tort his Honour made the following findings:
"Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasized in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur. (See, e.g., Thompson v Bankstown Corporation (1953) 87 CLR at 645, Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48). Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains "that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances" ( Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR at 523, per Starke J; and, generally, Stevens v Brodribb Sawmilling Co PtyLtd (1986) 160 CLR at 30, 42). In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standare of "reasonable care" may involve "a degree of diligence so stringent as to amount practically to a guarantee of safety. ( Donoghue v Stevenson [1932] AC at 612, per Lord Macmillan; Adelaide Chemical & Fertilizer Co Ltd v Carlyle ( 1940) 64 CLR at 523, per Starke J; and generally Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR at 30, 42).
218 His Honour obviously proceeded on the basis of this assumption. It has not been submitted that he was in error in making it, having regard to the way in which the trial was conducted. In my opinion the assumption should not now be questioned in this appeal. 219 Accordingly, in my view, for the reasons I have given all three appellants should be found liable in negligence to the respondents. Their appeal should therefore be dismissed.
"Although there is no direct evidence that Peter Schafferius, Dean Sawley, Mark Sbresni, Craig Griffiths, Bart Simpkins or any of them were employed by Katena Pty Ltd this seems to have been assumed by both sides and on that assumption Katena Pty Ltd, as first Defendant would be liable for a breach in the course of employment by all or any of them in the tort of negligence."
220 The second defendant, the State of New South Wales, was sued for breach of statutory duty and also for negligence in acting in the exercise of a statutory power. The first claim failed and has not been the subject of appeal. With regard to the second claim the relevant statutory powers are found in Clause 6 (4) of Ordinance 50 made under the provisions of s 475J of the Local Government Act 1919 Part XXII. Clause 6 (4) deals with the requirements for border inspections in relation to the permitted entry into New South Wales of "any prescribed agricultural machinery." It provides as follows:
The appeal of the second defendant
221 His Honour found (without difficulty) "a lack of sufficient care on the part of the second defendant in the conduct of border inspections generally and in the inspection carried out on the first defendant's headers at Mungindi on 9 November 1992." The evidence clearly established that the border inspector spent quite insufficient time in the making of an inspection. Additionally, he had never seen a Parthenium seed, had no experience of headers and did not have any knowledge of their internal mechanisms. His Honour's finding is plainly correct. 222 The real question however, was one of causation. His Honour accepted that
"(4) A border inspector shall inspect a prescribed agricultural machine produced for inspection under subclause (3) and shall issue a permit only if -
(a) where the border inspector suspects that Parthenium weed is or may be present on or in the machine, the person seeking the permit treats the machine, in accordance with the border inspector's directions, so as to remove any Parthenium weed to the satisfaction of the border inspector;
(b) the border inspector is satisfied that the machine is free of Parthenium weed; or
(c) the border inspector is of the opinion that, in the special circumstances of the case, it is proper to issue a permit."
223 His Honour dealt with the matter as follows:
"The plaintiffs must prove that a careful inspection, up to the standard reasonably to be expected, would have discovered the seed and prevented its transportation into New South Wales. This is without doubt the most difficult aspect of the case against the second defendant as far as the plaintiffs are concerned."
224 I am, with great respect, unable to agree with this finding. The machine had been, as his Honour found, sufficiently cleaned, to "best practice" standard. This had not been sufficient to remove the Parthenium seeds which later caused the problem. It is not possible, in my view, to take the step involved in his Honour's finding without an evidentiary basis to establish what level of inspection would have been required to ascertain the existence of the seed concealed in the machine. If it be accepted, as I think it must be, that the Ordinance did not require an inspection, based upon the Western Australian approach, calling for the entire dismantling of the header, then it would follow that a reasonable level of inspection could not guard against the possibility that seeds trapped in inaccessible areas might not later be liberated as a result of work done on the header in the course of its operations in New South Wales. The doing of such work and its consequences would, in my view, effectively break the chain of causation. 225 In this regard, I have had the advantage of reading, in draft, the reasons for decision of Rolfe JA. I respectfully agree with what his Honour has written and adopt his reasons. 226 By a notice of contention, it was submitted on behalf of the respondents that Ordinance 50 must be read in such a way as to give effect to the duty said to reside in the State of New South Wales to protect its citizens from the introduction of Parthenium weed in the state. So read the Ordinance "could only be complied with by using all available means of removing the weed," and the concept of "reasonableness and performance of a duty would not exclude the application of the Western Australian inspection standards." It was further put that if it was not practicable to clean all Parthenium from the Queensland headers they should have been forbidden entry to New South Wales. 227 I am unable to read Clause 6 (4) of Ordinance 50 as providing any such limitations on a border inspector's discretion to issue a permit. It may be that, having regard to the highly dangerous nature of Parthenium, the State should impose a regulatory ban on the introduction into New South Wales of agricultural machinery which has operated in the infested areas of Queensland. However, the State's legislative response to the problem by way of Clause 6 (4) falls well short of taking such a step. 228 I consider, therefore, that the appeal of the State of New South Wales should be upheld. 229 I would refrain, at this stage, from making any cost order in respect of the upholding of this appeal, as it may be that a case could be made for the making of a Bullock or Sanderson order in favour of the respondents. No submissions have been made in this regard. I propose that a reasonable opportunity be allowed for the making of them, should this be desired.
"Since there is no evidence of where, on the header, the seed was trapped, nor of how it was dislodged, it is impossible to
say in what particular respect the inspection needed to have been improved in order to locate the seed. However, that is not the end of the matter. The seed was dislodged in the course of work done on the machine which took somewhere between one half and one hour. It is most unlikely that the work involved the dismantling of the machine beyond that which a reasonably thorough inspection process would have required. It is therefore more likely than not that a thorough inspection, sufficient to meet the high standard which the danger of infestation and the second defendant's own policy of eradication required, would have uncovered the seed which was subsequently dislodged by employees of the first and third defendants."
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Most Recent Citation
Smith v Bone [2015] FCA 319
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Rylands v Fletcher
[1868] UKHL 1
Bird v DP (a pseudonym)
[2024] HCA 41
Burnie Port Authority v General Jones Pty Ltd
[1994] HCA 13