Stockwell v State of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6720 of 1995

RONALD J. STOCKWELL	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATES OF HEARING:	12, 15-19, 22, 24-26, 29-31 October; 1, 2, 5, 7, 9, 12-14, 19-21, 23, 26-30 November; 3, 4, 6, 7, 10-12 December 2001
DATE OF JUDGMENT:	17 December 2001
CASE MAY BE CITED AS:	Stockwell v State of Victoria
MEDIUM NEUTRAL CITATION:	[2001] VSC 497

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Animals – wild dogs – liability of land holder for nuisance on adjoining land.

Suing Crown – liability of employers.

Private nuisance – liability for wild dogs killing sheep – Crown land - Reference Areas Act 1978 – employees in control of area - responsible for management – measured duty of care to abate nuisance.

Negligence – duty of care owed - by persons in control of area to adjoining land holders – measured duty of care.

Statutory duty – Vermin and Noxious Weeds Act 1958 – no cause of action for breach .

Damages – nuisance and negligence – no contributory negligence.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Monotti with Mr P. Berman	Grundy Maitland & Co
For the Defendant	Mr P. Galbally QC with Ms A. Magee	Victorian Government Solicitor

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

History and Nature of Dispute........................................................................................................ 2

Suing the Crown................................................................................................................................ 5

Facts....................................................................................................................................................... 8

The Plaintiff's Causes of Action.................................................................................................... 50

Wild Dogs.......................................................................................................................................... 59

Causes of Action and Periods of Claim....................................................................................... 63

Vermin................................................................................................................................................ 64

Claim in Nuisance............................................................................................................................ 66

Claim in Negligence........................................................................................................................ 86

Statutory Duty................................................................................................................................... 91

Damages............................................................................................................................................. 92

A. Destruction of Sheep.............................................................................................................. 96
B. Loss in Value of Wool Clip................................................................................................. 102
C. Operating Expenses............................................................................................................. 103
D. Abatement and Inconvenience........................................................................................... 104
E. Diminution in Value of Land............................................................................................. 105

F. Losses Due to Inability to Farm Sheep.................................................................................. 114

G. Personal Injuries....................................................................................................................... 121

F. Consequential Losses........................................................................................................... 127

Conclusion on Damages............................................................................................................... 135

Aggravated and Exemplary Damages........................................................................................ 135

Contributory Negligence.............................................................................................................. 137

Conclusion....................................................................................................................................... 142

HIS HONOUR:

A proceeding instituted by writ, in which the plaintiff, a former farmer, claims damages for nuisance, negligence and breach of statutory duty from the State of Victoria, for losses suffered as a result of marauding dogs killing his stock.

Parties

The plaintiff, Ronald J. Stockwell ("the plaintiff"), is aged 58 years. He farmed a property some 18 kilometres south of Corryong, in north-east Victoria, and also carried on a business of plant hire and cutting and baling of hay. He is now unemployed but prepared to do farming and any labouring job. He is experienced in driving trucks and heavy plant, such as dozers and balers.

The defendant, the State of Victoria ("the State"), is sued as representing the Crown in the right of the State of Victoria pursuant to the Crown Proceedings Act 1958.

History and Nature of Dispute

In 1945, when the plaintiff was aged two, he moved with his parents and elder brother to a farm situated at Thougla, some 18 kilometres south of Corryong, in north‑east Victoria. The farm comprised some 681 acres, some of which were cleared and the balance bushland. The family cleared some of the land and developed the farm as a grazing property. His father ran some sheep and cattle, including calves, on the property.

The plaintiff left school at 14, remained on the farm for about four years doing a variety of jobs, and at 18, went to Corryong. Over the following years, he conducted carting and heavy plant businesses. In 1971, his father died, his widow remained on the property and the eldest child, Harold, was given the farm subject to the widow's life interest. The mother died in 1975. Harold died in 1979, leaving the property in equal shares to the plaintiff and his two sisters. The plaintiff purchased his sisters' interests and on 23 December 1981, became the sole owner of the property.

In the past, the property had been stocked with some sheep. The number and where they were located was the subject of dispute. On occasions in the 1950s, during 1978 and mid 1981, wild dogs attacked the sheep on the property. The attack in mid 1981 resulted in the deaths of some 20 sheep. This was before the plaintiff became sole owner.

The farm comprised four separate parcels of land. One of the parcels was 579 acres in area, rose from the road at its northern boundary in a southerly direction and abutted Crown land on its southern boundary. The sheep attacks occurred on this parcel of land.

When the plaintiff took over the property, he added further sheep and in the winter of 1982, a dog attack occurred, resulting in 20 sheep being killed and some 40 being badly injured.

On 21 June 1983, an area comprising 1300 hectares, 200 metres south of the southern boundary of the 579 acres, was proclaimed the Burbibyong Reference Area (the "Reference Area") by the Governor‑in‑Council, pursuant to the Reference Areas Act 1978. A "reference area" is an area of public land preserved in its natural state because it contains one or more land types that are relatively undisturbed. The purpose of the area is to provide a reference for comparative studies of other similar land types that have been developed and used. Hence, the effects of land use can be considered in comparison with a reference area. Members of the public are prohibited from entering the area and the area is to be left in its pristine state, undisturbed by man.

The Burbibyong creek ran through the western side of the plaintiff's land and the western portion of the Reference Area. The 200 metres between the northern boundary of the Reference Area and the southern boundary of the plaintiff's land was a buffer zone, which, like the area, was bushland.

From the date of the proclamation until July 1990, the plaintiff's property was subject to attacks by wild dogs each year, up to three to four attacks per year. The number of stock lost each year varied but in the worst year, it was alleged that 450 sheep were lost. The plaintiff was not the only farmer in the area who suffered losses from attacks by wild dogs. The plaintiff, together with other farmers, complained. In January 1984, the Department of Conservation, Survey and Lands provided him with materials to build an electrified fence on the northern boundary of the buffer zone of the Reference Area, which abutted the southern boundary of his property. Over the next two years, he erected approximately 1,365 metres of electrified fence along the boundary, which was approximately 1,820 metres in length. The fence was useless, as the dogs could pass around it onto his property. Despite the presence of the fence, the attacks continued and the losses occurred. The point was reached when he was informed by a Veterinary Officer, employed by the Department of Agriculture, in July 1990, that he could be prosecuted for cruelty for keeping his sheep on the farm near an area where they were subject to attacks, and the plaintiff accepted that he could not continue to run sheep. He made a decision in the latter part of 1990 to cease running sheep, and gradually removed and sold his sheep in the following 12 months.

As at 1 July 1990, the plaintiff was heavily in debt to banks and finance companies and in 1993, he had to sell his furniture and personal belongings and his plant and equipment. In September 1996, he was forced to sell his farm property.

The plaintiff contends that the lost farming and contracting businesses and farm properties, were due to the dog attacks on his sheep, and he claims, from the State of Victoria, compensation which, according to particulars of damage, totals $2,449,764. He also claims compensation for personal injuries in the nature of anxiety and depression.

The gravamen of the plaintiff's complaint is that the establishment of the Reference Area on his southern boundary provided a safe haven for wild dogs, which were able to move across the boundary into his property, kill the sheep and return to the Reference Area. For a while, the plaintiff employed self-help by setting baits in the 200 metre buffer zone between his farmland and the Reference Area, but he was warned that he could be prosecuted and he desisted thereafter from laying baits. The plaintiff's case is that the State of Victoria, through its employees, was in control of the Reference Area, that it permitted a nuisance which caused him damage, or was guilty of negligence, and is therefore liable.

Suing the Crown

The plaintiff claims damages from the State based upon three separate causes of action, in tort. The State is sued as the Crown in the right of the State of Victoria.

The common law rule was that the Crown was not liable for the commission of a tort by its servants or agents. To this rule, there was one exception which concerned the taking of property by the Crown – see Crown Proceedings by Dr Glanville Williams at p.16. However, a person who was employed or engaged as an agent, by the Crown, could be sued personally for a tort. In 1955, in this State, the Crown Proceedings Act was passed, which enabled a plaintiff, the victim of a tort, to sue the Crown by joining the State of Victoria as a defendant.

But the Crown's liability is truly vicarious. The Crown is not liable in tort except where it is vicariously liable for the tortious acts or omissions of its servant, agent or independent contractor, acting in the course and scope of the employment or engagement.

This is made clear by the provisions of s.23(1)(b) of the Act, which provides –

"(1)Subject to this part –
(a)…
(b)The Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him."

I also refer to the decisions in Hall v Whatmore (1961) VR 225, Clayton v State of Victoria (1968) VR 562, and Richards v State of Victoria (1969) VR 136.

It follows that the Crown is only liable where the tort is actually committed by an employee, agent or independent contractor, and then, only if acting in the course and scope of the employment.

The plaintiff must plead facts which establish that an employee, agent or independent contractor of the Crown, acting in the course and scope of the employment or engagement, was liable to the plaintiff. In practical terms, this means proof of a cause of action against the employee, agent or independent contractor, and that the Crown is vicariously liable for the tort committed by the employee, agent or independent contractor. In my opinion, it is unnecessary to identify the employee, agent or independent contractor by name, but, nevertheless, it would be necessary to adduce evidence which would enable the Court to be satisfied of the existence of such a person or body, and that he or it was acting in the course and scope of the employment or engagement at the relevant time. Of course, the best evidence is the identification of the individual or body by name.

Establishing vicarious liability for the wrongful acts or omissions of an independent contractor is somewhat confined – see Fleming, The Law of Torts, 9^th ed., at p.433 et seq. There is no question of an independent contractor being liable in the present case.

If the plaintiff fails to identify such a person by name, then the plaintiff assumes a heavy burden of persuading the Court that some unidentified employee, agent or independent contractor was responsible for the damage. Each case will depend upon its own circumstances. There may be sufficient evidence to enable the Court to consider the acts or omissions of the unidentified person. But if the Court is left in the position where it is not able to identify such a person by name or office, then the plaintiff may fail because he cannot prove the liability of a Crown employee, agent or independent contractor.

The question of the liability of the unknown person was discussed by the Supreme Court of Canada in Alexander and Ors v The Queen (1960) 23 DLR (2d) 369 at 375. Ritchie J, speaking for the Court, said –

"Lastly, the appellants base their claim on the ground that the Crown was responsible for the conduct of the unidentified person who moved the elevator from the second floor without shutting the doors.
It was argued that the rule exemplified by the phrase 'res ipsa loquitur' applied to this case on the ground that the elevator was in the control of officers and servants of the Crown and that the accident would not normally have happened if proper care had been taken. It is true that this somewhat overworked phrase has been held to apply against servants of the Crown …, but, at least in respect of actions brought under (the relevant legislation), the circumstances must be such as to raise a presumption of negligence against an officer or servant of the Crown 'acting within the scope of his duties or employment' before the burden of proof can be shifted to the Crown by invoking this rule. Here there is no evidence that the unknown person was an officer or servant of the Crown much less that he was acting within the scope of his duties or employment."
(Emphasis added).

The learned judge went on to hold that there was no evidence to show that the officer or servant who left the elevator as it was, was in fact an officer or servant of the Crown, and the plaintiff failed.

The point was also considered by the same Court in the later case of The Queen v Levy Brothers Company Limited (1961) SCR 189.

In that case, the Court upheld the finding of the trial judge that it was open to infer that the tortious act had been committed by one or more of the Crown employees, who had access to the area at the relevant time. Whether or not the facts enable the Court to reach the necessary conclusions, will depend on the particular circumstances.

The original statement of claim in the present proceeding was technically defective, in that it was asserted that the State was liable without any pleading alleging that its employees, agents or independent contractors were liable. As a result, the State brought an application to strike out the statement of claim on the day before trial, and I granted leave to the plaintiff to amend his statement of claim to properly allege that the acts or omissions were those of an employee, agent or independent contractor. The result was that the statement of claim was amended, alleging that "the defendant, its servants or agents" did certain things, and particulars were given referring to a schedule. The schedule contained some three pages of names, without in any way identifying which particular named person was liable to the plaintiff. The matter was stood down to enable the plaintiff to identify, either by name or office, a particular Crown employee or agent. The result was the reduction of the number of names to some 34 names.

Counsel for the State did not raise any objection and accordingly, the trial proceeded on the pleadings as they then stood.

In my opinion, it is necessary for the plaintiff in his pleading to identify by name or office, or other circumstances, an employee, agent or independent contractor who was responsible for the tortious conduct. First, because that is the matter that has to be proven; secondly, to enable the defendant to know the case it has to meet, and, in particular, to assist it in preparing its defence to the case; and thirdly, and just as importantly, to focus the minds of the plaintiff and his advisers as to the matters that have to be proven in the case.

With the benefit of hindsight, the Court should have required the plaintiff's advisers to be more precise in identifying the particular employees and agents. The result has been much time at trial being spent by plaintiff's counsel attempting to identify who is at fault. More time in preparation and discovery of relevant documents concerning the issue, would have reduced the length of this trial.

Facts

Before stating the facts, it is necessary to make some observations about the credibility of the plaintiff. The main witness in the plaintiff's case was the plaintiff himself. He was educated to the age of 14. His reading and writing is at a standard which is consistent with him leaving school at 14 and working in labouring and farming jobs ever since. Nevertheless, he has a non‑verbal IQ of 111, which is above average, although his verbal IQ was 80, at the lower end of the below average range. The discrepancy is due to his lack of education. He was cross‑examined at some length by Mr Galbally QC for the State. Whilst one must make allowances for his lack of education and his memory, which he employed to span some 20‑odd years, he was an unreliable witness. A lot of his evidence was found to be factually incorrect and from time to time, he changed his evidence. In addition, he adopted the stance of saying that he could not remember that something had happened when the contemporaneous documents produced clearly showed that it did, and despite being given the opportunity, was not prepared to accept the documentation. In fairness to him, on some occasions, he did accept the documentation which showed that his evidence was incorrect. I am satisfied that on occasions, he told deliberate untruths to the Court.

In examination‑in‑chief, the plaintiff asserted that after Dr Farquhar inspected his property in July 1990, criticised the condition of his sheep and warned him that he may be prosecuted for cruelty to animals if he left the sheep where they could be attacked by dogs, he sold all his sheep within two weeks. His amended statement of claim asserted the same version. In answers to interrogatories, he also asserted that as a fact. In the course of cross‑examination, some doubt was raised as to this assertion and in re‑examination, he gave a completely different version. This version revealed that he sold a number of sheep in the following six months, that he agisted a substantial quantity of sheep at a fellow farmer's property, and that he sold a substantial number of sheep in March 1991. He then asserted that by March 1991, he had got rid of all his sheep. This also proved to be incorrect. His tax returns revealed that he continued to keep sheep for some years thereafter. Whilst making allowances for his memory and lack of education, I do not accept that his assertion that he had disposed of all of his sheep by the end of July 1990 was due to memory lapse. His case was that as a result of Dr Farquhar's criticisms and threat of prosecution, he was obliged to dispose of his sheep and that is why he suffered all his losses. In my view, this was a deliberate untruth.

His evidence, that after the sale of his chattels, plant and equipment in mid 1993, he paid his creditors and the bank, was also untrue. In fact, he did not pay any money to the bank. He used approximately $35,000 to assist with the purchase of the Gibson's property in the joint names of his wife and himself. I am satisfied that this was also a deliberate untruth. His evidence that he was not a trustee of the Burbibyong Trust and had nothing to do with it was also incorrect.

He and his wife told the Commonwealth Bank, in a letter, that the Gibson's property was not owned by them. The letter went on to state "or have anything to do with it". This was plainly untrue and accepted by the plaintiff and his wife, in evidence, as being untrue. Other matters that raised doubts about his credibility concerned a stock kill report that he completed in 1982, in which he asserted that no sheep had been on the property for ten years. He had earlier given evidence that sheep had been on the property for ten years. It is difficult to know what the true position was prior to 1982, save that the evidence suggests that very few sheep were on the property prior to 1982. His evidence about resigning from the office of trustee was evasive and uncertain. I do not accept the evidence that he resigned as a trustee because a doctor had told him to avoid all stress. His position as trustee did not involve him in any work in relation to the trust at all.

He obtained a grant of $42,000 from the Rural Finance Commission after the sale of the farm in 1996 on the basis that he was no longer in farming and required the money to start afresh. He gave the money to the Burbibyong Trust to assist its farming business on part of the property. In so obtaining such money, he was misleading the Rural Finance Commission, in that he and his wife were trustees of the Trust. He did not use the money to assist in establishing himself outside farming.

Another matter that reflected upon the plaintiff's credibility was the lack of records concerning his stock trading, numbers of stock on the property at any one time, wool trading, stock killed and his acquisitions of heavy equipment. The plaintiff gave evidence of these matters without referring to any records, and based upon his memory spanning some 25 years. From time to time, the Court raised the question of records being produced to establish the particular fact. During evidence‑in‑chief, I remarked on a number of occasions that the matters must have been covered by records, but despite queries being raised, records were not produced. In cross‑examination, he was also asked questions concerning records, and was extremely vague as to what records were kept and their present whereabouts, and when pressed, stated that the records had been handed over to his solicitors and were probably mislaid when he changed solicitors. He later said that he handed the records to his present solicitor, who was not called to explain their absence.

At the end of his evidence, there were very few primary records produced, and the copy tax returns in some cases were incomplete.

After Mr Pickett was called to give evidence in respect to damages, leave was granted to recall the plaintiff on the basis that he could explain what documents he had and what had happened to them. He informed the Court that he kept some records that were not produced. He referred to a shearing book and a shed book, which would have recorded wool classification and the number of sheep. He stated that he did not keep any record of his stock. He relied upon invoices as to sales and purchases. He did not keep any record of the number of lambs born and said that he kept the information in his head.

He gave evidence that he leased the home paddock from 1 July 1993 at an annual rental of $10,080. He did not give that evidence earlier. Clearly, it is a very relevant matter to the question of his claim for damages.

The records which were produced to the Court were inadequate. As I have stated, some of the copy tax returns were incomplete. There would be no way of carrying out an audit of the plaintiff's business activities from 1981 to 1996. The lack of records could be due to a number of reasons. First, they never existed; secondly, they have been deliberately mislaid; thirdly, inadvertently mislaid; or fourthly, lost by others. It was difficult to know what the true position was after the plaintiff had given evidence. Nevertheless, there were some ledgers produced to the Court which were kept by Mrs Stockwell and which recorded income and expenses. I do not accept that the plaintiff failed to keep records of his businesses.

A person who conducts a business and fails to produce adequate financial statements and documents can hardly complain if the tribunal of fact, faced with inadequate information or vague information having been supplied, based on memory, comes to the conclusion that the plaintiff has failed to prove part of his case.

All of the evidence relating to the plaintiff's alleged losses attributable to the death of some of his sheep and the consequential losses, has to be very carefully scrutinised, not only because some of the factual matters were like shifting sands, but the expert called on his behalf gave evidence based upon facts, not all of which were proven, and on occasions, on facts assumed without proper foundation by the expert.

All told, even making allowances for lack of education, difficulty with articulation and the dimming of a memory over a period of years, in my view, the plaintiff is one of those witnesses whose evidence has to be carefully scrutinised in respect to all matters.

The plaintiff was born on 8 July 1943 and is now aged 58 years. When he was two, his father purchased the land comprising some 676 acres at Nariel Gap Road, Thougla, some 18 kilometres south of the township of Corryong, in north‑east Victoria. Some of the land was already cleared and thereafter, the family gradually cleared more of the property. Even today, the 676 acres are not completely cleared, as a variety of aerial photographs demonstrated. To the immediate south of the property, which at that point is some 1,820 metres wide, is a buffer zone of 200 metres and the Reference Area and surrounding forest. The whole of the area south of the farm was and is covered with dense forest and vegetation. A portion of the western side of the farm is also covered with forest, as is a small portion on the east. The farm is located in a valley and is undulating.

The farm comprised three discrete areas. First, the area immediately to the north of the buffer zone of the Reference Area comprised 578 acres, being Crown allotment 16C and parts of Crown allotment 16, and "parts of a former government road", being more particularly described in Certificate of Title 8541 Folio 800. There was some confusion in the evidence as to the total area but, in my opinion, the total area was 578 acres. This parcel was divided up into a number of paddocks ("the top paddocks"). There was located at the northern end of the top paddocks, a road and the second area situated on the other side of the road. This comprised two paddocks on either side of a pine plantation, which formerly was the area of the local school. The area on the eastern side of the plantation, being Crown allotment 16A, comprised some 17 acres, and the land on the western side of the plantation, being Crown allotment 16B, comprised some four acres. The top paddocks and these two areas were all comprised in the one Certificate of Title. The top paddocks gently sloped upwards in a southerly direction from the road to the buffer zone to the Reference Area. A feature of the top paddocks was the excellent water supply with a number of catchment dams, many of which were spring fed. In addition, the Burbibyong Creek passed through the property. The top paddocks are divided into five main paddocks. There were a number of improvements, namely, a hay shed and cattle yards.

The other area was the home paddock, comprising some 80 acres, being the land more particularly described in Certificate of Title 5181 Folio 035. Erected on the property is the plaintiff's residence, a machinery shed and a wool shed. The home paddock is situated to the west of the top paddocks and the two paddocks on either side of the plantation, and is approximately 800 metres from the top paddocks along the road dividing the two other areas.

It was in the area of the top paddocks where the dog attacks occurred. There is some evidence that wild dogs were seen on the home paddock, but no killings occurred on the home paddocks.

According to the plaintiff, the family ran sheep, cows and calves on the property. But in light of a stock killing report, signed by the plaintiff, dated 3 August 1981, which stated that, "Have not had sheep for 10 years on this property", one may have some doubt about the accuracy of the evidence. His sister did say that their father did run sheep, but she left the farm in 1959.

The plaintiff had an elder brother, Harold, who was born in 1935, and two sisters, Hazel and Elaine. According to the plaintiff, in the early fifties, the father was running some 200 to 500 sheep on the property. Some time in the early 1950s, an attack by a dingo occurred on the sheep, and the dingo was in fact tracked down and destroyed. It was a pure bred dingo.

In 1957, the plaintiff left school, but remained on the farm, helped out and earned money trapping, cutting wood and rabbiting. At that stage, he said that there were no wild dogs in the area. He rarely went into Corryong.

In 1961, when he turned 18, he left home and went into Corryong, where he was employed over a couple of years as a truck driver. In 1963, at the age of 20, he established his own carting business. Evidently, it was a fairly successful carting business. He was carting materials for the Snowy Mountain Scheme.

He was well remunerated for the cartage work. In 1964, he purchased a large truck, purchased a block of land from where he conducted his business, and employed a driver. From time to time, he helped out on the farm. He was earning substantial money. In 1965-6, there was downturn in the cartage business but, nevertheless, he continued to get plenty of work. He acquired another vehicle and in 1966, owned three trucks and employed two drivers. He continued with his cartage business, which was successful up until 1972, when he sold a number of trucks and his block in Corryong and purchased a farming property for $16,000. It was mainly bush, which he cleared, and he farmed cattle. He often went home to see his parents.

In 1971, his father died, and, according to the plaintiff, there were some 200 to 250 sheep on the property. His brother, Harold, was running the farm. His mother had a life interest in the property. After her death, Harold got the farming property. According to the plaintiff, he assisted to pay the probate duty. He was left a bull, the brother got the farm, and his two sisters were paid $2,000 each. In 1971, he purchased a bulldozer and did work bulldozing in the area.

In 1973, his mother was diagnosed with brain cancer and was bound to a wheelchair. For the next 18 months, the plaintiff helped his mother. At that stage, according to the plaintiff, there were some 200 to 250 sheep on the hill paddocks. By 1974, the mother was very ill. The plaintiff sold his truck. He continued to perform tractor work and helped on the farm. His mother died on 13 January 1975. In 1976, he established a saw mill and employed three men. He purchased a Fiat bulldozer and a second hand tractor. He continued to do contracting work for other farmers. His brother was also diagnosed with cancer and thereafter, could only do light work around the farm. At that stage, according to the plaintiff, there were some 250 sheep on the farm. To the best of his memory, there had been no dog attack other than the one in the early 1950s.

On 19 July 1977, a substantial area south of the hill paddocks was reserved, pursuant to s.14 of the Land Act 1958, from sale, lease or licence. The area in question contained 1,300 hectares (3,211 acres). Mining rights were excluded.

The area was situated some 200 metres south of the southern boundary of the hill paddocks. The land in between was Crown land, some 200 metres deep, and running the length of the boundary with the plaintiff's hill paddocks. It eventually became known as the buffer zone. The eastern boundary of the reserved area was in line with the eastern boundary of the plaintiff's hill paddocks, which ran generally north-south, and the western boundary of the reserved area was approximately 1,000 metres to the west of the western boundary of the plaintiff's hill paddocks.

The area was shaped in the form of an inverted isosceles triangle with the apex at the southern end. At its widest point, it was some 3.6 kilometres wide, and its length approximately 5.2 kilometres.

On 8 September 1977, a number of foresters employed by the Forest Commission Victoria at Wangaratta and Corryong, wrote a letter to the Secretary of the Forest Commission, which stated –

"Reference area – Burbibyong
This area is probably ill chosen because of the prevalence of blackberries. Access to the area is peripheral. The provision of locked gates to prevent entry by the public to the edge of the reference area is undesirable and inconsistent to the situation which would apply to other reference areas eg Jemba. The attached plans shows existing access."

The attached plan showed a track to the west of the reserved area, running around its southern end and coming up on its eastern side.

The track on the western side is the Nariel Gap Track and the one on the eastern side is Stockwell's Track, which continued in a northerly direction through the eastern side of the hill paddocks.

On 18 April 1978, the Reference Areas Act 1978 ("Areas Act"), was assented to and came into operation on 1 June 1979. Its long title stated that the Act was "to make further provision with respect to the management of certain special areas of Crown land and for other purposes." Section 3 provided –

"Where the Minister after having considered a report from the Land Conservation Council is of the opinion that any area of public land should be preserved in its natural state as far as is possible because the area is of ecological interest and significance, he may recommend to the Governor-in-Council that that area be proclaimed to be a reference area."

Section 4 provides that the Governor-in-Council, on that recommendation, may, by proclamation, "proclaim that area of public land to be a reference area".

Section 5 empowered the Minister to appoint an advisory committee to advise on the issues of how the area should be protected, controlled and managed, "so as to preserve the areas in perpetuity as a reference to which persons concerned with the study of land may be permitted to refer for comparative purposes particularly when solutions to problems that arise from the use of the land by mankind are being sought."

Section 5(2) prescribed that the committee should comprise six members, three of whom were nominated by the Minister, and the remainder being persons who had qualifications in one or other of the scientific disciplines concerned with matters relating to the preservation or management of land and ecological communities.

Under s.6, the Minister had power to issue directives "for or with respect to the protection, control or management of" a reference area. It will be necessary to further consider the section later.

In 1978, the plaintiff stated that a dog attack occurred on the property and some two to three sheep were killed close to the southern border of the hill paddocks. At that stage, the hill paddocks were fenced with a five wire cattle fence.

The plaintiff continued to acquire plant and purchased a Caterpillar bulldozer after trading in a bulldozer. At this stage, he was spending about one-third of his year doing contracting work and the rest of the year was spent helping to run the farm. By this time, Harold was very ill, and the plaintiff was doing most of the work. Harold died on 8 November 1979, and left one-third of his estate to the plaintiff, and one‑third to each of the sisters. The plaintiff was also left the sheep. In the following year, the plaintiff operated the farm.

Some time in mid 1981, and the plaintiff suggested May, there was a very serious dog attack by a number of wild dogs, and, according to the plaintiff, some 15 to 20 sheep were killed in the middle of the top paddocks, near the southern boundary. The plaintiff reported the matter to officers of the Conservation, Land and Resources Department in Corryong, and a dogman attended and set traps. At this stage, the plaintiff was laying baits to kill dogs, some one to two miles into the surrounding Crown land.

On 3 August 1981, the plaintiff signed a livestock loss report, in which he reported that 18 sheep were killed on his property on the night of 31 July to 1 August 1981. According to the report, there were 86 sheep on the property and 285 cattle. In evidence, the plaintiff asserted that those figures were wrong and that there were 285 sheep and 86 cattle. According to the statement, which was not in the handwriting of the plaintiff, the colour of the wild dogs was yellow, and they were not caught. In answer to whether attacks have occurred before, it would appear that the answer was "yes". The question is then asked –

"Yes. State approximately when and what damage occurred:"

The answer was –

"Ten years.
Have not had sheep for ten years on this property."

What was recorded in the report was contrary to the evidence of the plaintiff that sheep had been on the property over the previous ten years. His attempt to explain the inconsistency in the evidence was far from satisfactory. His tax return for the year 1982-83 had an opening stock of 256 sheep, i.e. on 1 July 1982.

The plaintiff acquired his sisters' interests in the farm and this was achieved by 23 December 1981. He said he paid $150,000 to the sisters, and his sister, Hazel, who gave evidence, said she was paid $76,000 over five years. She thought that there had been a valuation of the property. This would put the valuation at somewhere in the vicinity of $228,000. The plaintiff stated that he had about 250 sheep at this stage. He was happy to run sheep because it gave him two opportunities to derive income, namely, from meat and wool. He said he wanted to increase his stock to up to 2,000 sheep.

The property was ideal for the running of sheep, as indeed it was ideal for grazing cattle. The plaintiff was also doing his contracting work at that stage, and it would appear that about one-third of the year, usually from about October to February, was involved in contracting work.

In 1982, during the winter, another dog attack occurred in which he lost some 30 to 40 sheep and later in that winter, he suffered another attack which killed 20 to 30 sheep. He reported the matter to the Department of Conservation, Forests and Lands and a dogman was sent into the Crown land to trap the dogs.

During this period, the plaintiff was laying baits through the middle of the Crown land, and he said that this seemed to overcome some of the dog problems.

By 1983, he was running some 800 sheep. In that year, he purchased plant and equipment to bail hay, and continued his contract work. He also improved his property by installing shearing sheds and sheep yards. He did most of the work himself.

On 21 June 1983, the Governor-in-Council proclaimed an area of some 1,300 hectares as the Burbibyong Creek Reference Area, pursuant to s.6 of the Areas Act. The Minister responsible for the recommendation was the Minister for Conservation.

On 13 July 1983, the Minister for Conservation published, in the Victorian Government Gazette, a directive for management of a number of reference areas, including the Burbibyong Creek Reference Area. It was noted that the boundaries of the references areas were shown in plans which were in the Ministry for Conservation, and it then went on to state –

"The plans for protection, control and management of the reference areas have been approved by the Minister for Conservation and copies of the plans are lodged and available for inspection at the Ministry for Conservation, 240 Victoria Parade, East Melbourne."

The directives for the management of the reference areas were –

"1.The managing authorities are to comply with the prescriptions for protection, control and management of each reference area contained in the plan which has been approved by the Minister for Conservation.
2.Entry of persons into the reference areas is prohibited, except for management personnel and others approved by the Minister.
3.Research work in the reference areas is to be carried out in accordance with conditions set down by the Minister.
4.Grazing, mining, mineral exploration, harvesting of forest produce, quarrying, beekeeping, educational use, recreation activities and all forms of harvesting (except water from the areas) are prohibited."
(Emphasis added).

The Act, the directive and the Management Plan all provided for management of the Reference Area by a person or body. Management of the area was not inconsistent with the purpose of a Reference Area.

The Management Plan for the Burbibyong Creek Reference Area was dated May 1983. It will be necessary to refer to it hereafter.

According to the plaintiff, up until this point in time, he observed a dogman going into the area, which ultimately became the Reference Area, once or twice a week; this had been the pattern for a number of years. According to the plaintiff, the dogman informed him that after the declaration of the Reference Area, he was told that he was not allowed to go into the Reference Area.

A former dogman, Mr Leslie Tindall, gave evidence that prior to the proclamation, he did go into what became the Reference Area to catch wild dogs, but after the proclamation, he was told not to go into the area and to confine his activities to the Nariel Gap Road and Stockwell's Track, which he did. I accept his evidence, which is consistent with the Management Plan, which referred to the past practice of trapping on those tracks. He ceased to be a dogman after an accident in about 1987 and thereafter, the main dogman in the area was Mr Brian McNamara. He stated that he set snares and traps in the Reference Area in or about 1988‑1990. I accept that he did set traps mainly in the buffer zone but on occasions, he set traps some half to one kilometre into the Reference Area from the southern boundary of the plaintiff's top paddocks. He caught three dogs in that area in May-June 1990.

Despite the declaration, the plaintiff continued to go into the area and lay baits and traps up to 1984-85, when he was told by a senior member of the Department that he was trespassing and could be prosecuted.

During the relevant period from July 1983, the same department has managed the Crown Lands in the north‑east of Victoria. There have been a few name changes, re‑arrangements, amalgamations and reduction of regions. It is convenient to refer to the ever changing entity as "the Department".

In November 1983, the Department known as Conservation, Forests and Lands was formed. Previously, it was known as the Department of Crown Lands and Survey.

In April 1990, it changed its name to Conservation and Environment, followed in October 1992 by Conservation and Natural Resources, and in April 1996, to Natural Resources and Environment. During the same period, the regions were altered, starting with 18 in May 1985, and reduced to 16 in 1987, when Wodonga and Wangaratta were amalgamated to form the North East Region. In May 1993, the 16 regions were reduced to five and in April 1996, back to six. Each change seemed to produce different positions, titles and duties, all adding to the confusion. In my view, the many changes helped to create the situation where very few of the Department's employees knew about the Management Plan, let alone its contents, or appreciated what was required to manage the Reference Area.

Prior to the proclamation, the plaintiff engaged a solicitor to write to the Department of Crown Lands and Survey, demanding compensation for the massacre of his sheep which occurred on the night of 29 April 1983. Some 20 first crossed ewes were killed and another 40 were badly injured.

The plaintiff, on 28 April 1983, heard wild dogs howling and reported it to the local Lands Department officer, asking for action. No action was taken. After the massacre, a dogman went into the area and set traps. Evidently, he was successful in trapping a number of dogs.

It was in April 1983 that the plaintiff complained about the dog problem and associated it with the Reference Area. His agitation produced some action by the employees of the Department and, in particular, Mr Holmes at Wangaratta. He was the Land Management Officer who was referred to by his office in the Management Plan.

The result was a promise to apply for a grant for materials to erect an electric fence on the boundary.

In response, the Acting Secretary of the Department of Crown Lands and Survey stated that he was obtaining a report, and pointed out that the Crown was not liable for such cases because it is "normally the land holders responsibility to hold such insurance or other cover against livestock losses".

In a letter dated 14 November 1983, the Chief Executive of the Department of Crown Lands and Survey wrote to the plaintiff's solicitor and stated that the Department does not accept liability. It is confirmed, and the plaintiff gave evidence, that the Department did provide him with materials for an electric fence, according to the letter, to "prevent his stock from trespassing into the adjoining reference area, despite the fact that Mr Stockwell has continually refused to keep his fence in good repair and has continued to allow his stock to trespass".

The letter further stated that it must be emphasised that "the reference area only deals with floral components of the biosphere, not faunal, and it has no connection with wild dog habitat." This observation was wrong. Fauna were in the Reference Area.

The plaintiff obtained the materials from the Department on an ex gratia basis and commenced to erect the fence early in 1984. Although the topic of subsidies for electric fences had been raised in 1984, and seriously discussed from 1987, the subsidy scheme was not put in place until early 1992.

The plaintiff obtained the materials in January 1984, pulled down the fence on the southern boundary and erected the electrified fence over the next two years. It was run by electricity generated from a solar panel. All told, its length is approximately 1,365 metres. It did not completely run the length of the southern boundary. It was at least 455 metres short of reaching the western boundary. At the time the plaintiff was erecting the fence, he was gradually pulling down his old fences on the southern, western and eastern boundaries. Having completed the distance along the southern boundary, parts of the western boundary of his property were unfenced. The boundary down the eastern side had been removed. It followed that any enterprising dog, which may have been in the Reference Area and wished to get onto the plaintiff's top paddocks, could have gone around the edge of the electrified fence.

In 1985, the plaintiff was told by Mr Ross, a senior member of the Department in charge of operations at Corryong, that he must not go into the Reference Area to lay baits or traps, and thereafter, he did not. However, there was a buffer zone between the southern boundary of his property and the Reference Area of some 200 metres, and he did venture into that area and lay baits. Eventually, he stopped doing that.

In the years that followed, according to the plaintiff, there were frequent attacks by dogs and he suffered stock losses. In an endeavour to stop the dog attacks, he slept out at night in his truck. During the lambing season, and especially during winter, he spent many nights out in the top paddocks. He could hear dogs howling in the Reference Area. From time to time, he saw dogs at the fence. He thought that there were anything up to six dogs in the area at any one time. Despite his presence, the dog attacks continued.

On 10 February 1987, he married his wife and she resided with the plaintiff in the residence on the home property. She had a farming background. She was married to an engineer, and assisted on a farm and raised a family. In 1987, the attacks were getting worse and during that period, the plaintiff thought that he had at least three to four big attacks during the year. He was losing a substantial number of sheep. He reported the attacks to the Corryong office. He was sometimes told that a dogman would be available; on other occasions, he was told that the dogman was not available because he was on leave or ill, or that a dogman could not come out because he had travelled his maximum number of kilometres for the week.

On 18 March 1987, the plaintiff received a letter from his accountants which raised concerns about his financial problems.

The letter stated that the plaintiff had suffered an accounts loss of $35,240 for the year ending 30 June 1986, and warned the plaintiff that "the enormity of the loss is of concern and requires your close attention. Such losses are increased by high borrowings and the associated high interest cost of approximately $10,000 pa." A firm suggestion was made that budgets be prepared for all income and expense items and that consideration be given to options available to improve profitability. It was suggested that the plaintiff meet with his nephew, Craig Schrieber, to discuss it. The advice given concluded as follows –

"It is desirable to plan for the gradual reduction of external interest bearing loans to lessen the interest expense burden on your operations."

The financial accounts as at 30 June 1986 showed a net loss of $35,240, which compared with profits in the two previous years. The accounts showed that he suffered substantial losses over the next six years, eventually making a profit in the year ending 30 June 1993, by which time he was out of sheep. It will be necessary to consider his financial position hereafter, but his financial position was becoming precarious by March 1987.

A report prepared in March 1987 in the Department of Conservation, Forests and Lands noted that some 909 dogs were caught during the calender year 1986 throughout Victoria, and that the number was somewhat higher than the average number caught over the previous ten years, at an average of 866 dogs per year. This report covered the whole of Victoria.

A wild dog control plan was prepared by two members of the Land Protection Division of the Department. It was noted in the report, dated April 1987, that one of the goals of the plan was "to prevent stock losses from wild dog attacks, using the most efficient and humane control methods available with an emphasis on preventative, rather than reactive, control programmes." In addition, another goal was to exclude wild dogs from private land.

It was noted that –

"Wild dogs represent a major risk to livestock in many areas of Victoria. They attack, harass and occasionally kill cattle, horses and goats but pose the greatest threat to sheep; wild dogs may kill or maim many sheep in a single attack. A recent survey of land holders showed that annual stock losses due to wild dog attacks in eastern Victoria amount to approximately $480,000."

It was noted that the main problems encountered were where freehold land abutted forested Crown land. It was also noted that the areas of particular vulnerability were the cleared narrow valley floors high up in densely forested catchment areas. It was noted that the Department of Conservation, Forest and Lands employed 23 full‑time doggers and three part‑time doggers, who were jointly responsible for catching about 1,000 dogs per annum.

The evidence clearly establishes that by April 1987, officers within the Department were well aware of the problems posed by wild dogs in respect to sheep farming, and the necessity to take steps to control the wild dogs and exclude them from grazing properties. It was also noted, at that time, that there was a community concern about the preservation of dingos in areas remote from pastoral country. It was further noted that because of cross‑breeding, it would be very difficult to differentiate between "dingos, feral dogs and their hybrids. All are collectively referred to as 'wild dogs'."

In 1987, after a series of wild dog attacks, the plaintiff complained to the Department and his local member of Parliament. This brought action from the Department. A senior officer, Mr R. Patrick, was assigned to look into the problem and a number of measures were put in place; none, however, specifically aimed at the plaintiff's particular problem with the Reference Area.

It is convenient at this point to trace the history of the Reference Area.

The Reference Area was proclaimed on 21 June 1983. A draft Management Plan had been prepared for the area in March 1983, and was finally adopted in May 1983. The draft Management Plan was retained on the Department files either at Wodonga or Corryong, but there is considerable doubt whether the final Plan was ever on the file. Nevertheless, there is no material difference between the two Plans.

The directive published by the Minister in the Government Gazette on 13 July 1983 directed that the managing authorities were to comply with the Plan. Section 6(2) of the Reference Areas Act also required compliance with any directive by "the person or body responsible for the protection, control or management of the Reference Area". (Emphasis added).

However, the directive permitted persons to enter the area who were "management personnel". The Plan dealt with administration. It provided –

"4.1Current Administration

The Reference Area is currently administered by the Department of Crown Lands and Survey."

That was the name of the Department at the time. The Plan went on to provide for, what was described as, "contacts" and two persons were referred to. The first was described as the "Land Management Officer Wangaratta" and the person concerned was Mr Alan Holmes. He was employed by the Department during the period 1981‑1985 and occupied the position of Crown Lands Management Officer based at Wangaratta. His duties included land management. He left the position in late 1984 to early 1985. He was responsible for the oversight and condition of Crown lands in the north‑east region of Victoria and he accepted that the Reference Area was under his control. He stated that he visited the Reference Area three or four times during his period in the north‑east. Prior to the proclamation, he visited the area because of, inter alia, the dog problems. He met the plaintiff on that occasion.

Mr Holmes was aware of the dog problem on the plaintiff's property. The plaintiff was not the only one who was concerned about dog attacks. A meeting was held on 10 May 1983 of farmers from the area to discuss issues relating to dogs. The question of the Reference Area and its influence on the wild dog problem was discussed. It was generally agreed at the meeting that the Reference Area was no different to any other Crown land. However, it should be pointed out that the area had not been proclaimed at that stage, nor had any directives been made prohibiting the entry of persons into the area. Further, at that time, the dogmen were going into the area to catch dogs. A motion was passed at the meeting that an additional dogger be employed. At that stage, there was only a single dogger.

The other person referred to in the Management Plan was Mr Les Barton, Inspector of Lands at Corryong. He was employed by the Department right through the period until he retired in 1992. He also had a responsibility for the Reference Area and its management.

The Reference Area was described and reference was made to a buffer strip of 200 metres. It is also noted that to the north of that buffer strip, were freehold allotments. The allotments were the plaintiff's land. Views have been expressed during the period from the late 1970s through to the early 1990s, that a buffer zone in excess of one kilometre is necessary where the Reference Area abuts freehold grazing land.

It was noted that weed problems were severe along the two creeks which ran through the area "where blackberry has infested the moist flats and adjacent lower slopes. The thickets extend for at least two kilometres along each branch, the width varying with the topography but extending at least 20 metres each side of the creek." It was also noted – "Trapping has been carried out in the past on Nariel Gap Track and Stockwell's Track as part of the programme of extermination of wild dogs under the Vermin and Noxious Weeds Act 1958."

I interpolate to observe that at all relevant times, wild dogs were declared vermin under that Act and there was an obligation on all land holders, including the Minister of the Department, to take "reasonable action to destroy and suppress all vermin".

In referring to the condition of the area, the Plan stated –

"Infestation of blackberry along the two branches of Burbibyong Creek has had considerable impact. The dense thickets successfully compete with, and generally replace, the low indigenous shrubs and grasses."

The evidence established that wild dogs used areas of blackberries to obtain cover.

The Plan dealt with control of what was described as "alien species". It was noted that there was a problem with blackberry thickets and that it was proposed that there be "a continued programme of careful control by the most environmentally acceptable means", to suppress blackberry. With respect to trapping of wild dogs, clause 2.3.1 of the Plan provided –

"The present practice of trapping for wild dogs along Nariel Gap Track and Stockwell's Track may be continued as necessary. Control of any introduced species within and surrounding the reference area shall be aimed at containing the species to a level at which it would have a minimal influence on the natural eco system."

Two parts of the Plan required a record to be kept. In clause 2.3.1, appeared the following –

"A full record is to be kept of all weed eradication and animal control by the Inspector of Lands Corryong. Details including materials and methods employed, machinery used and area covered should be recorded for the works carried out each year."

Clause 5.3 provided –

"Detailed records are to be kept of all management activities pertaining to the reference area and adjacent public land."

In fact, no specific records were kept by the Department, either at Wodonga or Corryong. If it was necessary to determine what, if anything, had been done in relation to protection, control and management of the Reference Area, it would be necessary to trawl through all of the Department files at Corryong and Wodonga to determine what, if anything, had been done. There was a record relating to weed control from 1991, and although Mrs Bailey, who took over Mr Barton's position in 1992, thought that there were other records, she was unable to locate any.

Maps were kept at the Corryong office on an annual basis and these recorded, for the region around Corryong, where traps, snares and poison baits were laid and where dogs were killed.

Mr Holmes, who was the person responsible, together with Mr Barton, during the period 1983‑1985, was of the view that the Reference Area was no different to Crown land and accordingly, no particular management programmes were put in place in relation to it. I am satisfied that during that period, trapping of dogs continued on the tracks on the eastern and western sides of the area, but no trapping occurred within the area. Further, there was no evidence that any weed eradication, including blackberry spraying, occurred during this period.

Mr Holmes had a meeting with the plaintiff in 1983 which resulted in the ex gratia provision of materials to erect the electric fence. Mr Holmes was fully aware that the plaintiff was of the view that the Reference Area was providing a safe haven for the dogs.

Mr Holmes was responsible for managing the Reference Area during the period 1983 through to late 1984/early 1985.

After he left, the Department reorganised and a regional manager was appointed for Conservation, Forests and Lands based at Wangaratta; he had the responsibility for the Reference Area. That was Mr Bernie Evans. He was not called as a witness.

There is no evidence of any particular management steps with respect to the Reference Area during the period from 1983 through to 1987. The dogman was not permitted to go into the area and the trapping of dogs was confined to the tracks on the sides of the area. No spraying of blackberries took place in that period either.

By 1987, a dogman was required to complete what was called a dogger's diary. Diaries were kept in the following years. By reference to the diary, one could determine the number of snare and traps used and over what period, and details concerning dogs and other species caught or poisoned. This information was sent to the Keith Turnbull Research Institute at Frankston, which had been set up in the mid‑1960s and whose main function was to research, inter alia, pest animals and their control. In the diary, which was compiled on a monthly basis, were noted the location of where the dogs were captured. In the years 1985 and following, an annual map was displayed in the Corryong office of the Department and when a dog was killed, the location of where it was caught was noted on the map.

By referring to the map, it would be possible to say where dogs were captured, but the map gave no more information than that. It was not possible to say when dog activities were performed, nor did it give any detail of the type of activity involved to eradicate the problem. The dogmen's diaries, which were completed monthly, provided some information as to the number of snares, the period during which they were in the field, and the details of wild dogs and other animals caught. No doubt, consultation with the dogman could provide some information.

The failure to keep records of management activities in the Reference Area as required by the Plan meant that what evidence was given as to management was based on memory, and, to some extent, was unsatisfactory.

It is clear that the plaintiff had, since 1982, right through to July 1990, been a vocal and aggressive complainant of the dog problem he encountered on his top paddocks and, in my opinion, the senior personnel at Wodonga responsible for dog control and responsible for management of the Reference Area, and all personnel at Corryong, were well aware of the plaintiff's complaints from 1983 onwards and that he was of the view that the Reference Area was providing a safe haven for dogs.

In 1987, the plaintiff was publicly complaining about dog attacks and receiving publicity in the local press. During 1987, he saw dogs at a water trough and observed dogs going under the electrified fence. He continued to do contracting work between October and the following January‑February. Despite the note of caution expressed by his accountants, he continued to increase his plant and purchased a Ram Roller for harvesting. He was of the view that his business was improving. His debts were increasing.

As at May 1987, the plaintiff had a substantial loan from a solicitor. He approached his bank to increase his term loan. He obtained Commonwealth Bank and Commonwealth Development Bank finance totalling $200,000, which was used to pay out the solicitor's loan of $106,000, clear his overdrawn account with the ANZ Bank of $41,000, repay a family loan of $4,500 and provide $8,500 for a hire purchase debt. $20,000 was set aside for stock purchases. He had over $15,000 for working capital.

In the winter of 1987, the plaintiff suffered a very bad attack and some 200‑250 sheep were killed or maimed. He attempted to avoid the attacks by moving the sheep around, but the dogs tended to follow. He continued to stay out at night in an endeavour to prevent dog attacks.

Because of the large sheep losses in mid 1987, the plaintiff made complaints to the Department in Melbourne about the wild dogs.

He approached the local State member of Parliament, who wrote to the then Minister for Conservation, Forests and Lands, the Honourable Joan Kirner, concerning the wild dog problem. The letter, dated 7 July 1987, noted that the plaintiff had contacted the writer, Mr Lieberman MP, and stated that the plaintiff estimated he had lost about 200 sheep in the previous few weeks and that only one trapper was working, and the other was on holidays. The letter requested that the trappers work through the winter and asked what the proposals were to tackle the dog problem. In a response dated 14 August 1987, Mrs Kirner queried the claim that 200 sheep had been lost and stated that although a dogger took leave, there was no decrease in the wild dog control operations. In respect to the question of the Department tackling the problem, she referred to a public meeting held at Corryong where some 25 land holders attended, together with a number of public servants. She recorded that a number of proposals were put forward, including a subsidy to land holders to construct electric fences, to provide financial assistance to a dogger for his horse, to review the poisoning programme, to increase dog owners' awareness in relation to domestic dogs and to involve the local land holders in relation to the programmes.

Mr Geoff Ross, who was the Operations Area Supervisor at Corryong, and the local dogman, Brian McNamara, attended the meeting with a senior officer of the Department, Mr Rob Patrick, who was the Assistant Regional Manager – Resource Conservation for the north‑east region.

Mr Patrick was appointed in February 1987 as the Assistant Regional Manager for the north‑east region based at Wodonga. Around November 1990, he was appointed Deputy Regional Manager Planning. He reported to the Regional Manager who was Mr Bernie Evans.

Mr Patrick was allocated the task of looking into the wild dog problem in 1987, and it is a fair inference, from the documentary evidence, that the plaintiff's complaints to the Department in Melbourne, followed by the letter from the local MP, caused a number within the Department to focus on the dog problem, including his own. Mr Patrick believed that he would have been informed about the plaintiff's particular problems, and about the plaintiff himself, and he recalled at some time being informed that the plaintiff was of the view that the dogs causing him the problems were coming from the Reference Area. At this time, namely, May/June 1987, Mr Patrick was involved in a proposed poison bait programme in the Corryong area to kill wild dogs. Mr Patrick was told by the plaintiff that he had suffered considerable stock losses over the past five years, and was critical of the lack of action by the Department. He also informed Mr Patrick that a number of persons were contemplating bringing proceedings for compensation for stock losses due to dog attacks. The plaintiff also informed him that in his view, greater efforts were required, including accelerating a poison programme. It was recognised within the Department that the poisoning programme should be improved and employed more often.

As a result of the meeting of farmers held on 2 July 1987, at which Mr Patrick attended, certain follow‑up actions were put in place. Amongst the actions contemplated was a review of the poisoning programme, by increasing the activity and laying poison baits in the higher country, i.e. to the south of the Reference Area. In addition, consideration was to be given to subsidies for electric fencing and to providing an appropriate subsidy for a horse for at least one dogger at Corryong to access areas restricted by road conditions in winter.

Mr Patrick did not put in place any particular system, procedure or activity to minimise or eradicate wild dogs in the Reference Area, nor did any other person within the Department in the following years.

Mr Patrick was in a position to require that certain steps be taken with respect to the Reference Area, but did not consider that it was different to the other Crown land. He believed that within the resources given to the Department, the wild dog control procedures were appropriate.

The evidence revealed that in November 1987, a poison bait programme was carried out in an area some kilometres south of the Reference Area. Another poison bait programme was not carried out in the area until the year 1991.

Despite the agitation by the plaintiff and his complaints, and his media coverage in July 1987, nothing was done by the Department to meet his specific complaints and, in particular, to attempt to eradicate the wild dogs in the Reference Area. The wild dog catching programme, which had been in place for many years, was continued, namely, trapping on the Nariel Gap Track and Stockwell's Track, but not within the Area itself.

During 1988, the problems continued, attacks occurred about every month during winter, and the plaintiff lost stock. He slept out in his truck two to three times per week over a considerable period of that winter. He heard howling in the Reference Area. He identified up to four dogs moving on the house paddock. The dogs continued to come and the sheep continued to be attacked.

He continued with his contracting work during the summer months and was aware that his debt levels were increasing. The Commonwealth Bank was putting pressure on him to reduce his debts.

When he did complain to the Department, dogmen were sent out into the buffer zone, but he thought that they were not very effective.

As at 30 June 1987, he had debts totalling some $335,077, with total assets of $317,125. He was paying a massive amount of interest on his loans. Of a total gross income of $66,327, his interest bill totalled about $54,764 and he suffered a net loss of $65,179.

During 1989-1990, the dog attacks continued, sometimes two to three times per week. By late 1989, the rural scene was such that there was very little value in sheep.

In mid 1990, the plaintiff was of the view that his sheep were in good condition. However, that was not the view of the Department of Agriculture. He had some 2,180 sheep at this time. He had 1,200 ewes, 120 wethers, 800 lambs and 28 rams. His financial position was parlous. Whilst he had net assets of $120,605 based upon a revaluation of his farming property of $412,585, his liabilities to the banks and creditors totalled $346,346. He suffered a business net loss of $28,924 to 30 June 1990, which followed on four years of substantial losses. He approached the Department at Wodonga to get more materials to complete the electric fence. In the early part of July 1990, it was very wet and there was snow on the top paddocks. He experienced a substantial number of sheep losses, somewhere in the vicinity of 190.

In July 1990, a complaint was made to the local animal health officer, who referred it to the Department of Agriculture. On 13 July 1990, Dr Farquhar, the District Veterinary Officer, visited the plaintiff's property and accompanied him on an inspection. He observed that there were numerous carcasses in the top paddocks, that the sheep were in very poor condition and that the lambs were very poor and some orphaned. The sheep were in the lower areas of the top paddocks, which did not provide sufficient feed. The sheep had been attacked and were refusing to feed on the higher part of the top paddocks. Dr Farquhar advised the plaintiff that the sheep appeared to be starving due to stress of being heavily in lamb and lambing, poor paddock feed, very cold and wet weather, and probably worm problems. He noted that the sheep were in the lower area because of the dog activity. He advised the plaintiff to remove the sheep from the areas where they were attacked, because to expose the sheep to probable dog attack was cruel. He suggested a different feeding regime. It was said that if steps were not taken, the plaintiff may be liable to prosecution under the Prevention of Cruelty to Animals Act.

The plaintiff does not agree that the sheep were not in good condition. I reject his evidence and accept Dr Farquhar's evidence.

Dr Farquhar re-visited the property on 17 July and observed that the sheep were being well fed, indeed overfed, and noted that the sheep were not being killed on the flat but that if they wandered up into the hills, were likely to be attacked. He noted that shearing would commence at the end of September. He re-visited the property on 24 July and stated that the sheep had been moved to the top side due to wet conditions. Dr Farquhar observed that the sheep were improving. It is observed that there is no suggestion in the reports of Dr Farquhar, or indeed his evidence, that he was told by the plaintiff that he was about to sell all his sheep.

The plaintiff gave evidence that he sold his total sheep within a matter of a few weeks of the visit of Dr Farquhar and sent off his cattle to Corryong. Answers to interrogatories were to the same effect. The facts were incorrect.

He was cross-examined on the evidence, suggesting he was wrong, and was confronted with documents which, if correct, showed that his evidence was wrong.

The plaintiff's copy financial statements revealed that he had sheep over the next few years. In re‑examination, he gave a completely different version of the events. He stated that in the last few weeks of July, he sold some 80 to 100 sheep to Tallangatta Meatworks, and sent some 400 sheep to a blood and bone factory in Wodonga, for which he received no payment. In early August, he shifted some 200 sheep to a neighbour, and followed up a week later with more sheep to the same neighbour. He stated that in late August, he sent more sheep to the blood and bone merchant, and took the balance to Mr Harrison's property. According to his tax returns, he had some 2,180 sheep at 1 July 1990 but none at 30 June 1991, but his evidence revealed that only 1,350 were disposed of. He brought the sheep back to his property in October for shearing and sold some of the sheep over the following months.

He asserted that in March 1991, he had sold all his sheep, but that again is incorrect, as his tax returns reveal. He did admit, but in a vague way, that he did have more sheep. It appears that his wife purchased a few sheep.

The plaintiff's evidence in relation to what he did after Dr Farquhar's visits places a question mark over his credibility. As I have already stated, making allowance for memory fading, lack of education and inability to articulate, it is hard to believe that a bad memory was the cause of the incorrect evidence. The amended statement of claim, the opening, his examination‑in‑chief and answers to interrogatories all conveyed the fact that he was forced to sell his sheep because of the threat that he would be prosecuted. This was untrue. I do not accept that it was due to any memory loss, and, in my view, the plaintiff deliberately attempted to mislead the Court.

The case was opened on the basis that Dr Farquhar's visit and report caused the plaintiff's farming venture to fail within a month, causing enormous consequential losses, and the events could all be traced to the loss of sheep over the preceding seven to eight years. The uncertainty as to what did happen reflects upon the plaintiff's case.

In a letter dated 30 July 1990 to the Victorian Farmers' Federation, the plaintiff stated that he was asking the Department to supply materials for an electric fence. He noted that he was fighting a losing battle with the dogs, and asked for compensation for sheep already lost and still being lost. The letter concluded with the observation:

"If I go out of sheep altogether the loss of income would be so great and I will be unable to survive on the farm."

A letter hardly consistent with the version given in evidence that by that time, he had sold all his sheep because of the threat of prosecution for animal cruelty.

It should not be overlooked that during this period, the wool market was not good and the value of sheep had dropped dramatically because of drought suffered in nearby areas.

In August 1990, he visited the Commonwealth Bank and informed the manager that 150 lambs were to be sold as soon as there was a break in the weather, that it was too wet for dozer work and that there would be no income until shearing. He informed the manager there was a pressing account for a new silo of $1,824 and that he would call again as soon as his accountant had completed financials and budget. The plaintiff stated that he was working on a management plan. Again, hardly a report to a bank manager if he had by then sold all his sheep and was no longer a sheep farmer.

On 14 November 1990, he sent to the Rural Finance Corporation, an application for a finance grant to assist with payments of interest, in which he noted that he had some 2,148 sheep, as well as some 154 cattle. He certified that the contents of the application were true.

The Rural Finance Corporation responded on 7 December 1990 and noted that he was running some 1,200 ewes, 800 lambs, and 70 breeding cattle, and that his liabilities totalled $372,238.

The letter stated –

"The details submitted clearly show the level of debt to be too high for your farming and contracting business to service and the provision of subsidy assistance would not enable a shortfall to be covered. Under the subsidy provisions of the Rural Adjustment Scheme, we are obliged to be satisfied that the farmer's difficulties are due to factors outside his control and that given assistance, the operation has sound long term prospects for success.
In the circumstances we are unable to provide the assistance you are seeking and your application has been declined."

A number of doctors were called on behalf of the plaintiff to trace through his medical history. What is very clear from the medical history is that he was not, at any stage, referred to a specialist psychiatrist, and that his GPs, in later years, treated him for depression by the prescription of drugs. He was receiving visits from psychiatric nurses from time to time, but what they did and how often he saw them was not explored in evidence. None were called. Also, he had some difficulties in his marriage, which led to his wife leaving him in about April 1994 for three months. He was employed from about September 1996 for a year in a dairy farm, which was not successful, and he was most upset with the owner of the dairy farm. In addition, in July 1996, he was required to sell his farm under pressure from the Commonwealth Bank and Commonwealth Development Bank. On any view, he was under considerable pressures from about the middle of 1992. These were pressures which, in my view, were not connected to the dog attacks, but to his level of indebtedness and the difficulties associated with the downturn in the rural scene. In his own mind, the plaintiff is of the view that all of his problems can be traced back to the dog attacks, but the evidence does not support that view.

The evidence revealed that the first attendance for anxiety symptoms were in July 1992, when he saw Dr Williams. He was treated for anxiety, said to be due to a court case. What that court case was, was not revealed.

There were no attendances for nearly two years, until May 1994. In 1995, a moderate degree of depression was observed by Dr Williams, who described it as "less than severely depressed". Again, the depression was due to a court case. He was prescribed antidepressant drugs and was treated for the next seven to eight months for depression. Thereafter, from time to time, he was periodically treated for depression. However, there is a gap between September 1997 to 1998. There is no doubt that his mental condition in 1998 was affected by this case. It was noted in 1998 that he appeared less aggressive, and in the year 2000, it was noted that his depression was much improved.

In addition, he had other causes of aggravation. During 1997, he had a dispute with an employer, by whom he was let down, and it was then that he was referred to the Wodonga and District Mental Health Service Team. However, no witness was called to give evidence from that service.

One of the doctors accepted that the plaintiff was fixated with what he perceived to be his losses resulting from the marauding dogs, that he is currently adequately managed by medication and is fit for employment.

In summary, the first diagnosis of depression is October 1994. A lot of events have occurred since then. He was not the subject of any marauding dog attacks since July 1990. On the other hand, some of his hopes and expectations had been dashed, namely, the conduct of an antique museum, and the forced sale of his chattels and plant and equipment because of bank pressure.

It is in those circumstances, taking into account the lack of pleading, the lateness of the claim, and the lack of a referral to a psychiatrist, that the question arises, was his depression, as diagnosed in October 1994 and continuing, caused by the marauding dogs killing his sheep?

All the plaintiff has to establish is that the nuisance was a cause of his depression. It does not have to be the sole cause or indeed the material cause. But it is necessary to prove, as a fact, the connection.

Mr Healey, a psychologist, was called to give evidence on behalf of the plaintiff. He had not treated the plaintiff. He saw the plaintiff for three and a half hours on 24 August 2000. His diagnosis is, to a large extent, based upon what the plaintiff told him. Mr Healey stated that he read a letter from Dr Slane which, according to him, indicated that he was currently treating him for "major depression and anxiety".

The clinical notes of Dr Slane do not describe the plaintiff suffering from "major depression". There is no doubt that he was suffering from a depression from at least October 1994. However, it appeared to be well controlled by suitable drugs.

Testing by Mr Healey revealed, through personality testing, "distressed emotionality with depression, anxiety, significant social introversion/withdrawal and a paranoid trend." This was the testing as at the time of the visit, namely, 24 August 2000.

Mr Healey concluded, "There is little doubt about the strong causal link between the series of traumata from mid 1980s to mid 1990s and his reduced, fragile emotional and mental states". His report summarises the many trauma over the whole period.

The connection between wild dog attacks and his depression, which was observed from October 1994, depends very much upon the facts. The Court has had the benefit of observing the plaintiff giving evidence, his evidence and other circumstances bearing upon the issue, and time to consider the question over a lengthy period. Mr Healey observed depression in the year 2000. It was not until October 1994, some four years and five months after the last dog attack, that depression was first diagnosed. In between 1 July 1990 and August 1994, many disturbing and upsetting events had occurred, some of which, no doubt, would have had an effect upon the plaintiff's emotional state. He did not suffer depression during the years when the dog attacks occurred, although I accept he was extremely upset and distressed by them. But his claim is for an injury in the form of depression.

The State had the plaintiff seen by a consultant psychiatrist, Dr Paul Kornan, on 21 March and 14 August 2001. The State did not call him as a witness.

Accordingly, the Court can proceed on the assumption that if Dr Kornan had been called to give evidence, he would not have assisted the State's case, and secondly, the Court is entitled to more readily draw an inference from the evidence established on behalf of the plaintiff. The first reference to depression is on 14 October 1994, in notes written by Dr Hatch, and he wrote –

"Depression and day time somnambulism."

Mr Healey expresses the view that, given the facts, there is a causation link between the various events and his depression. That may be so, but the question is whether the plaintiff has satisfied the Court, on the balance of probabilities, that the marauding dogs constituting the nuisance and the effect of the negligent conduct was a cause of his depression later diagnosed.

Dr David Hunt who commenced to treat Mr Stockwell in 1999, gave evidence that he observed that the plaintiff was fixated on his loss "on what he perceived his losses to be, that he could talk of very little else."

The plaintiff is a self-made man, who is determined and prepared to speak his mind when he thinks appropriate. He had a running battle with officers within the Department and at times, became extremely annoyed with them, and on occasions, threatened them. In my view, many of his symptoms are of a person who gets easily frustrated and annoyed.

I am not persuaded that the marauding dogs and their effect upon the use of his lands, were a cause of the plaintiff's depression. In my view, there were a combination of factors which could not realistically be attributable to the dog attacks on his sheep, which ended in July 1990, for a depression which was observed well over four years later. There were many factors which could have been a cause of his depression. This is supported to some extent by the view expressed by Mr Healey that there was a strong causal link between a series of trauma from the mid 1980s to mid 1990s. But unlike Mr Healey, who had three and a half hours to obtain a picture of what occurred and to make his assessment, the Court has had the opportunity, over two months, of carefully considering the traumatic events which affected the life of the plaintiff from mid 1975 through to the sale of his properties in 1996. I do not accept that the nuisance and negligence, resulting from the conduct and omissions of the relevant employees of the State, was a cause of his depression first diagnosed in October 1994.

F. Consequential Losses

The plaintiff has made a substantial claim for alleged consequential losses. It is put on his behalf, that the losses due to dog attacks resulted in the plaintiff having less income and as a result, he was unable to pay his debts as they fell due, causing substantial loss.

First of all, it is contended that he had to sell his property by reason of the inability to pay his debts to the banks, and that this was caused by the marauding dog problem; that he was forced to sell his chattels, furniture et cetera, plus the plant and equipment he used in his contracting business, in 1993 because of the marauding dog problem, in that he had insufficient funds to pay his debts. It is said that he has lost the opportunity to conduct his farm and he has been unable to make money from farming and the contracting business. He claims a loss of income until he turns 70. It is said that all these losses were caused by the effect of the marauding dogs during the period 1 July 1989 to 30 June 1991.

The claims are put in excess of $2M.

When it is observed that his total direct losses are somewhere in the vicinity of $7,000 as at 30 June 1991, the Court may be excused for viewing the claims with a degree of scepticism.

The first issue concerns causation. Did the killing of his sheep by marauding dogs cause the failure of his businesses and the forced sale of his farm lands?

In answering that question, it is necessary to bear in mind that the period of his claim is from 1 July 1989.

It is necessary to look at his financial position as at that date.

This issue is different to the question of remoteness of damage. See Chapman v Hearse (1961) 106 CLR 112 at 122. A tortfeasor is not liable for damage which is too remote, i.e. not reasonably foreseeable. The present issue is whether the tortious acts for which the State is responsible were a cause of the consequential losses claimed by the plaintiff.

The question of causation in negligence cases was discussed by the High Court in March v E. and M. Stramare Pty Ltd & Anor (1990) 171 CLR 506. The issue of causation is a question of fact which is to be determined by applying common sense to a particular case. At p.515, Mason CJ said –

"The common law tradition is that what was the cause of the particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case' in the words of Lord Reid: Stapley [1953] AC at p.681. …
It is beyond question that in many situations the question of whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liablity, the need to identify what was the 'effective cause' of the relevant damage reinforced the notion that question of causation was one of fact and, as such, to be resolved by the application of common sense."

In the later case of Bennett v Minister of Community Welfare (1992) 176 CLR 408, Mason CJ, Deane and Toohey JJ said, at p.412 –

"In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense. In resolving that question the but for test, applied as a negative criterion as causation, has an important role to play, but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude."

In my opinion, the principles stated by the High Court also apply to a claim in nuisance.

The question is a question of fact and in the present case, it is necessary to consider the relationship between the tortious acts and the events which led to the sale of the plaintiff's chattels and plant, the sales of his farmlands, and the cessation of his business. Then determine whether there is a connection which, on a common sense basis, leads to the conclusion that the tortious acts were a cause of the subsequent losses.

In 1981, the plaintiff commenced his farming business. He ran sheep with a small herd of cattle. He did so from that date through until about mid 1991. At the same time, he conducted a contracting business, which involved him in acquiring and paying for expensive plant, machinery and equipment. In order to fund both ventures, it was necessary for him to obtain loans. However, the loans seemed to be raised primarily to enable him to purchase the expensive equipment used in his contracting business.

It is necessary to consider his financial position as at 30 June 1989.

According to the financial statements, the plaintiff suffered an operating loss of $48,310, operating a farming and contracting business that had a gross profit turnover of $100,824. This sum was made up of $43,117 for farming pursuits and $57,707 from his contracting business. However, his expenses totalled $149,236. His accounts revealed losses for all years from 1983 to 1989, save for 1984 and 1985. According to his financial statements, the net figures are as follows –

1983

Loss

$18,345

1984

$38,127

1985

$14,381

1986

Loss

$35,240

1987

Loss

$65,179

1988

Loss

$68,052

1989

Loss

$48,310

He claimed tax losses for a period prior to 1981 up to 30 June 1989, and they totalled $261,914.

By far, the greatest component of his expenses for the year ending 30 June 1989, comprised bank debts, personal loans, and hire purchase charges, totalling $56,405.

His balance sheet revealed, for that year, net liabilities of $123,420, up by nearly $50,000 from the previous year. His total assets were revealed at $234,694 and his total liabilities were revealed at $358,114. Of his total liabilities, $347,350 were made up of bank overdraft, bank loans, other loans and hire purchase debt.

It is said that the losses caused by the dogs, namely, the killing of sheep, which I have assessed at $2,068.85, together with the decrease in the wool clip, which I have assessed at $3,909.71, during the period 1 July 1989 to 30 June 1991, were a cause of his eventual selling up and cessation of his businesses. That is, the forced sale of chattels and plant in June 1993 and sale of farmlands in July 1996.

By 1 July 1989, it is my opinion that the plaintiff was practically insolvent, was continuing to make substantial losses in his farming and contracting businesses and had done so for many years, and had no real hope of meeting the instalments and interest on his bank loans. Unfortunately for the plaintiff, he had obtained loans at a time when the prevailing rates of interest were in the vicinity of 18%. On any view, looking at his accounts to 30 June 1989, the inevitable result from continued trading was insolvency. In other words, an inability to pay his debts as they fell due. This conclusion, based as it is on his financial statements, is reinforced by the views expressed by his accountants two years earlier, on 18 March 1987. The plaintiff engaged Coopers and Lybrand at its Albury office, and the person who handled his accounts was his nephew, Mr C. Schrieber. On that date, he wrote a letter to the plaintiff. The first paragraph noted -

"The attached statement of income and expenditure indicates an accounts loss of $35,240 for the 1986 year. Whilst the cash loss may not be so large due to non-cash charges for depreciation and also due to stock differences, the enormity of the loss is of concern and requires your close attention. Such losses are increased by high borrowings and the associated high interest cost of approximately $10,000 pa.
There is strong need to prevent further erosion of your equity in the farm and associated equipment, by turning the losses into profits. … "
(Emphasis added).

A suggestion is made that he prepare budgets with the assistance of his nephew. The letter contained the following piece of wise advice –

"It is desirable to plan for the gradual reduction of external interest bearing loans to lessen the interest expense burden on your operations."

The plaintiff did nothing in response to this letter.

Despite the concern and advice given, the plaintiff continued to trade at a substantial loss, and the loss for 30 June 1987 was far greater than 1986. The loss in 1988 was greater than the loss to 30 June 1987.

By perusing his financial statements, it is apparent that the plaintiff increased his indebtedness to the banks by raising money in order to buy new equipment for his contracting business. The plaintiff's evidence supported that conclusion.

In the year to 30 June 1990, the plaintiff made $45,780 from his farming venture and approximately $98,000 from his contracting business. However, again, his expenses exceeded his income and he suffered an operating loss of $28,924. In that year, his liabilities increased by approximately $20,000. His loan commitments decreased down to $346,346, which was due in part to an injection of some $80,000 by reason of the sale of some real estate, together with $20,000 that his wife invested in the business.

The State called as a witness, Mr Richard Garvey, a partner in K.P.M.G., who produced a report, being a review of the business operations of the plaintiff. His source materials were the financial statements and some documents which were placed in evidence.

After considering the financial statements and analysing them, he opined the view that the plaintiff was experiencing liquidity problems from at least 1983, "[a]nd these continued to escalate through to the 1996 financial year." He opined the view, with which I agree, that it appeared that the plaintiff's business failed due to consistent significant trading losses and an inability to manage an excessive level of debt. He also observed, and I agree, that the ratio of external debts to assets was too high to sustain a viable primary production operation.

The evidence established that since about 1987, the plaintiff failed to meet his financial obligations to his lenders, as and when they fell due, and applications for finance were frequently declined. The bank, from at least 1991, was requiring the plaintiff to reduce the size of his loans.

The plaintiff ignored the advice given in 1987, and instead, continued to acquire plant and equipment. At a time when a reduction in assets and debt was required, he increased the size of his business and committed himself, in the late 1980s, to a debt level that he could not service.

What happened after 1 July 1990 was that the plaintiff gradually removed the sheep from his top paddocks and disposed of them, leased the top paddocks in April 1991 for three years, at a rental of $20,000 per annum, and retained the home property, which he subsequently leased on 1 July 1993 at an annual rental of $10,880 per annum. He continued in the meantime to conduct his contracting business, which usually ran from about October to the following February of each year and which derived a substantial amount of income. But the sale of the plant put a stop to that business after 1 July 1993. However, by the beginning of 1993, the Commonwealth Bank was demanding that he attend to paying the interest and instalments overdue on his loans.

In March 1993, a meeting occurred between representatives of the Commonwealth Banks and the plaintiff and his wife, assisted by a finance adviser. The banks made it very clear that he had to pay the arrears. He agreed that he would do so by selling his furniture and chattels, and his plant and equipment. He promised to pay off his arrears and reduce his level of indebtedness to the banks. If he had done so, there was a prospect that he could have managed his indebtedness. He did in fact sell his furniture and chattels, and his plant and equipment in mid 1993. He did not pay the banks. The moneys were used by him to assist his wife to jointly purchase the property known as Gibsons, which is next door to the home property, for $143,000. A mortgage of approximately $100,000 was obtained for the purchase. By increasing his level of indebtedness, he exacerbated his financial position. A decision had been made by the plaintiff and his wife that they would not pay any interest to the Commonwealth Bank, and they did not do so thereafter. As a result, his interest was capitalised and as at 30 June 1994, his loans totalled $567,549. In my opinion, the increase of the plaintiff's indebtedness by over $100,000 in the 1994 financial year meant that he was unable to pay his debts as they fell due and it was inevitable that he had to sell the farming properties.

The losses which the plaintiff suffered, arising from the marauding dogs killing sheep from 1 July 1989 to 31 July 1990, caused a reduction in his income of about $6,000. I am not persuaded that the cessation of the sheep farming caused him such a loss of income that it brought down his business enterprises. The cause of the sales of the chattels and furniture, plant and equipment in 1993, and the sales of the farmlands in 1996 were caused by the level of indebtedness which had been established by 1 July 1989 and which was crippling, and was exacerbated by the plaintiff failing to reduce the indebtedness in 1993. Instead, he took on another mortgage with his wife for a sum of slightly in excess of $100,000. Proceeding on common sense principles, the tortious acts committed by the relevant employees of the State did not cause the consequential losses claimed by the plaintiff.

In addition, even if the losses were caused by the said tortious acts, in my opinion, the damages were too remote. In other words, they were not reasonably foreseeable.

In Wagonmound (No. 1) (1961) AC 388, the Privy Council held, in negligence claims, that a tortfeasor is not liable for damages unless the damage "is of such a kind as the reasonable man should have foreseen" – see p.426. Their Lordships emphasised that liability does not depend solely on the damage being the direct or natural consequence of the act or omission, but must also satisfy the test that the damage is reasonably foreseeable.

In Wagonmound (No. 2) [1967] AC 617, the Judicial Committee held that the same principle applied to a claim in nuisance. At p.640, the Judicial Committee said –

"It is not sufficient that the injury suffered by the respondent's vessels was the direct result of the nuisance if that injury was in the relevant sense unforeseeable."

Recovery of damages in private nuisance and negligence depends on the plaintiff showing that a relevant employee of the State would have, as a reasonable person, foreseen that the commission of the tort, would have caused the relevant damage, i.e. the forced sale of his chattels, plant and equipment, the forced sale of his farmlands and the loss of both his farming and contracting businesses.

In my opinion, the reasonable person, placed in the position of the relevant employee of the Crown in the period 1 July 1989 to 31 July 1990, would not have reasonably foreseen that the killing of 150 sheep and lambs during that period would have resulted in the financial destruction of the plaintiff. The plaintiff fails to establish that the damages were not too remote.

The plaintiff has failed to establish any claims for his consequential losses.

Conclusion on Damages

It follows that the plaintiff has proven the following damages –

A.

Loss of sheep -

$2,068.85

B.

Loss in value of wool clip -

$3,909.71

C.

Any additional expenses attributable to attempting to abate the nuisance and effects of the negligent actions -

$319.00

D.

Inconvenience, upset and anxiety brought about by commission of wrongful acts -

$5,000.00

E.

Devaluation of property due to continuation of nuisance and wrongful acts -

$48,750.00

TOTAL:

$60,047.56

Aggravated and Exemplary Damages

The plaintiff has claimed aggravated and/or exemplary damages.

In order to recover aggravated damages, it would be necessary for the plaintiff to establish that one or more of the relevant employees who were guilty of the tortious acts, had behaved in a way which aggravated the damages.

In Oldham v Lawson (No. 1) (1976) VR 654 at 659, Harris J considered whether a court could award aggravated damages in a case of nuisance. Usually, aggravated damages are awarded to compensate for insult or loss of dignity suffered by the plaintiff as a result of the tort, and are awarded in causes of action such as trespass to the person and defamation. However, there is no reason why aggravated damages could not be awarded in a negligence case because of, for example, the outrageous conduct of the defendant causing the injury. Further, I do not see why aggravated damages could not be awarded in a nuisance claim in respect of general damages. However, the conduct would have to be of such a high‑handed nature that it merited aggravated damages. See Oldham v Lawson, supra, at p.659.

Mr Monotti, when pressed in final address to identify particular employees of the State who acted in a high-handed manner, or as is sometimes said, in "contumelious disregard" for the plaintiff's rights, named a number of employees who, he submitted, fell into that category. I indicated at the time that, in my view, there was no basis whatsoever for making such allegations against these employees. In my opinion, there is absolutely no evidence to suggest that any relevant employee of the State, who was responsible for the commission of the torts in question, acted in a manner which was high-handed or in a way which was in contumelious disregard of the plaintiff's rights. A view was taken, by these employees, that the Reference Area was to be treated no differently from any other Crown land and to give effect to the purpose of the area. Their views were supported by other officers in the Department. They were wrong in adopting that approach. But not for one minute could it be suggested that they acted in a high‑handed manner in reaching that conclusion. Indeed, all the evidence, including the evidence from the plaintiff, is that when he did make a complaint, he did get a response from the local dogman, and on the occasion in 1983 and 1987 when he made a number of very strong complaints, the Department and its employees responded in an endeavour to meet his concerns. In 1983, Mr Holmes responded by obtaining an ex gratia grant for the provision of materials for an electrified fence. In 1987, Mr Patrick put in place a number of measures aimed at alleviating the dog problem.

Aggravated damages could only be awarded in relation to general damages, and there was only one head of general damages. In my opinion, the plaintiff has failed to establish any basis for aggravated damages.

Having made my position very clear to Mr Monotti, in final address, that unless there was a good basis for alleging that any of the relevant employees had behaved improperly and in a high-handed manner, then he should not be making the allegation, Mr Monotti withdrew the claim for exemplary damages. In my opinion, there was not a scintilla of evidence which would form the basis for exemplary damages, and Mr Monotti, very wisely, withdrew what was a baseless claim.

Contributory Negligence

The defendant has pleaded contributory negligence against the plaintiff. Particulars are as sub‑joined to the paragraph alleging contributory negligence, and there are, in effect, two allegations; first, the failure to erect an electric fence around his property, and secondly, forbidding the defendant's employees passing through his property for the purpose of trapping wild dogs in the Reference Area. I can dismiss the second allegation. The plaintiff refused permission in 1990, but, in my view, it was open to the defendant's employees to enter into the Reference Area from other points, namely, the Nariel Gap Road. By this time, in any event, the plaintiff had suffered damage, although it was continuing, and his refusal did not aggravate the damage.

The first allegation is more serious. The facts reveal that between 1984‑86, the plaintiff, using materials supplied by the State, erected an electrified fence. There is no doubt that the fence was a good sturdy fence and, at all relevant times, was in good condition. However, the fence only ran approximately two‑thirds the length of the southern boundary of the hill paddocks and the buffer zone. This meant that dogs could get around either end of the fence. On the eastern side of the plaintiff's property, there had been a cattle fence, but he had removed it some time around 1986 in anticipation of extending the electrified fence. Hence, there was no real obstacle to dogs entering the top paddocks.

Any farmer whose land adjoins Crown land knows, and the plaintiff knew, that there was always the risk of feral animals coming into his property and causing damage. The feral animals were not confined to wild dogs. He knew as early as 1981, and before he took over the farm, of the risk of marauding dogs doing real damage to his flock. Any farmer in the plaintiff's position would have known that it was essential to erect boundary fences, and if the farmer sought to exclude wild dogs, it was necessary to electrify the fence. By not having any boundary fence, this meant that feral animals, including wild dogs, could enter the property without obstruction. That was the position at the beginning of July 1989 and remained so right up to the date the plaintiff sold his land, in July 1996.

The effect of the failure to fence was that there was no obstruction to the marauding dogs coming into his property. He knew up to 1 July 1989, by his experience of attacks, that there was the real risk that dog attacks would occur and would kill some of his sheep.

Part V of the Wrongs Act 1958 deals with contributory negligence, and covers both the claim in negligence and in nuisance. Indeed, counsel did not argue to the contrary.

The law recognises an obligation resting upon a plaintiff to exercise reasonable care for his own safety and that of his property. If a plaintiff fails to take reasonable care for his own safety, property or interests and that lack of care is a cause of the incident which caused the loss or has contributed to the harm, the plaintiff is guilty of contributory negligence. Contributory negligence is not a defence, but results in an apportionment of responsibility leading to a reduction in the amount of damages.

The burden rests upon the defendant to prove contributory negligence, and the issue is one of fact.

The defence not only relates to acts or omissions which contribute to the wrongful act, but also concerns a failure to exercise care, which contributed to the extent of the harm resulting from the wrongful act. A classic example of this is the failure to wear a seatbelt or wear a crash helmet. See O'Connell v Jackson [1972] 1 QB 270 and Froom v Butcher [1976] QB 286. These failures may have a bearing on the extent of the injury. The defendant has to prove that the failure to take reasonable care by the plaintiff contributed to the loss, i.e. that there was a causal link.

The standard of care which must be exercised by a plaintiff is tested on an objective basis. If contributory negligence is established, the tribunal of fact must apportion responsibility.

Section 26(1) of the Act provides the test that is to be applied, namely –

"The damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share and the responsibility for the damage."
(Emphasis added).

The cases have established a number of factors which are relevant to the apportionment exercise. First, the issue of culpability, i.e. the degree of departure by each of the parties from the standard expected of the reasonable person. See Pennington v Norris (1956) 96 CLR 10. Another relevant factor is the relative importance of the acts of the parties contributing to incidents or the damage. See Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529.

As a general proposition, it is a question of making an assessment of the culpability of both parties and their contribution to the harm which has been caused.

The question is what should the plaintiff have done, as a reasonable person, knowing all relevant facts as at 1 July 1989, to protect himself from harm resulting from wild dog attacks on his sheep? He was obliged to take reasonable care to protect his own interests. The State submits that he should have installed an electric fence right around the boundary of his top paddocks.

Mr Monotti submitted that the installation of such a fence would not have stopped marauding dogs. There was some evidence that despite an electric fence, wild dogs could enter a paddock. I accept that that can happen. But the overwhelming evidence was that a properly maintained and operating electric fence will deter wild dogs. Evidence from those who had experience with an electric fence, showed that dogs tended to avoid properties surrounded by electric fences and move to another area where the fences were not electrified.

I think that the installation of an electric fence around the boundary of the plaintiff's top paddocks would have reduced the risk of harm from marauding dogs. It has to be recognised that such a fence will not guarantee 100% protection, but it will provide an effective barrier. Wild dogs are not owned or controlled by anybody, they do as they wish, and no matter what steps are taken, whether it be by employees of the Crown or farmers, one can never prevent the possibility of a wild dog attack. But both employees of the Crown and farmers do have an obligation to take steps to minimise the risk.

This brings me to what the reasonable person, knowing all the relevant facts, should have done on and after 1 July 1989.

The evidence relating to the cost of the installation of a fence is sparse. I have already summarised it when determining the damages in respect to the value of the land subject to dog attacks.

I find that the cost of installing a complete fence around the property, during the period from 1 July 1989 to 30 June 1991, was in the order of $23,701. This would be a minimum, taking into account increases in cost, clearing the fence line and the terrain.

During the period 1 July 1989 to the end of July 1990, there was no scheme in place for assistance for the erection of such a fence. Hence, the plaintiff, during the period from 1 July 1989 through to 31 July 1990, would have had to carry the total cost himself. Further, the decision to install an electric fence is very much influenced by the economics of the exercise. The question is, loss of sheep and their cost of replacement versus the cost of the fence and maintaining it. I am satisfied on the evidence that at least a half day a week, and maybe longer, would be required by a farmer to maintain the fence in proper working condition.

Some farmers called observed that the economics did not justify the outlay.

This view was recognised by counsel for the State in the proceeding, who cross‑examined the plaintiff, suggesting that it was not an economic proposition to completely surround his farm with a dog proof electrified fence. This was also recognised, in my view, by the actions of Mr Holmes in 1984 when, in answer to the complaints and agitation by the plaintiff, he took steps to arrange a subsidy to assist with the erection of a fence. It was recognised, at that point, that a farmer could not be expected to provide the total cost himself.

In my opinion, the reasonable person in the shoes of the plaintiff, on and after 1 July 1989 through to the end of July 1990, would not have installed an electric fence in the circumstances, and, in my opinion, the failure by the plaintiff to do so during that period did not amount to contributory negligence.

This brings me to the position post 31 July 1990. In April 1991, the plaintiff had leased the top paddocks. A subsidy had been discussed and considered by the Department from at least 1987, but the scheme was not put in place until early 1992. Subject to certain conditions, a land holder could obtain financial assistance from the Department to erect an electric fence. Indeed, during this period, the plaintiff and his wife raised the issue with members of the Department.

Given that there was a subsidy available, and given that the value of the top paddocks was affected by the possibility of dog attacks if sheep were run on the top paddocks, should the plaintiff, as a reasonable person, in order to take steps to protect his own interests and minimise his loss, have applied for a subsidy and installed an electric fence on the top paddocks? This would, for reasons which I have already stated, have had an effect upon the value of the top paddocks.

The plaintiff was contemplating erecting a fence in January 1990 when he sought permission to clear the fence line, which permission was granted to him. Further, on 15 August 1990, his solicitors wrote a letter to the Department at Wodonga, asking for assistance to fence the remainder of the adjoining boundary. In response, the Department informed the solicitors that Mr Stockwell had been recently advised of assistance levels available through the Land Protection Incentive Scheme and that any application by him would be favourably considered. In July 1991, a senior member of the Department in the area, advised the plaintiff that electric fencing for wild dog control is only implemented on a group basis, that is, with neighbouring properties. The assistance was at 30 cents per metre, providing funds were even available from the Department. On any view, the scheme was hardly generous, was subject to available funds, and depended upon co‑operation with neighbours. The financial contribution would have come to about $1,653, compared with an outlay in excess of $23,701. The assistance was of little practical effect.

In 1993‑94, the Department was providing assistance, being half of the contribution to materials, and also to assist clearing the line. However, the level of assistance, the conditions of same and whether the assistance was of any real benefit to the plaintiff, was not established.

Given the circumstances, in my opinion, the plaintiff was acting reasonably in not outlaying the large sum of money which he would have had to do in order to completely fence his property, taking into account the obligation of the employees of the Department to suppress vermin in the Reference Area. In my opinion, he was acting reasonably throughout, and the defendant has failed to establish that the plaintiff was guilty of any contributory negligence.

Conclusion

It follows that the plaintiff is entitled to succeed and recover the sum of $60,047.56

I will hear the parties on questions of interest and costs.

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1983	Loss	$18,345
1984	$38,127
1985	$14,381
1986	Loss	$35,240
1987	Loss	$65,179
1988	Loss	$68,052
1989	Loss	$48,310

A.	Loss of sheep -	$2,068.85
B.	Loss in value of wool clip -	$3,909.71
C.	Any additional expenses attributable to attempting to abate the nuisance and effects of the negligent actions -	$319.00
D.	Inconvenience, upset and anxiety brought about by commission of wrongful acts -	$5,000.00
E.	Devaluation of property due to continuation of nuisance and wrongful acts -	$48,750.00
TOTAL:	$60,047.56

[2001] VSC 497

17 December 2001