University of Western Sydney v Middlebrook

[2003] NSWCA 250

NEW SOUTH WALES COURT OF APPEAL

CITATION:    University of Western Sydney v Middlebrook [2003]  NSWCA 250 revised - 15/09/2003

FILE NUMBER(S):
40805 of 2002

HEARING DATE(S):             20/06/03

JUDGMENT DATE:               09/09/2003

PARTIES:
University of Western Sydney
v
Ronald Noel Middlebrook

JUDGMENT OF:      Meagher JA Ipp JA McColl JA   

LOWER COURT JURISDICTION:             District Court

LOWER COURT FILE NUMBER(S):        DC 6942 of 2000

LOWER COURT JUDICIAL OFFICER:   Garling DCJ

COUNSEL:
A: L King SC & R Wood
R: A C Bridge SC & E Cos

SOLICITORS:
A: Abbott Tout Solicitors
R: Long Howland Houston Solicitors

CATCHWORDS:
NEGLIGENCE: Liability of employer - Departure (or non-departure) from employer's recommended system of work - Extent of employer's duty to take measures preventative of danger - Inherent risk of injury - Adequacy of trial judge's reasons.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40805 of 2002

MEAGHER JA
IPP JA
McCOLL JA

Wednesday, 10 September 2003

UNIVERSITY OF WESTERN SYDNEY v RONALD NOEL MIDDLEBROOK

FACTS
This was an appeal by the University of Western Sydney (the defendant below) from a judgment, verdict and orders entered by Garling DCJ in favour of the respondent (the plaintiff below).

The respondent, an employee of the University, was a highly experienced dairy farmer who worked at the University's Hawkesbury Campus Dairy.

The herding of dairy cattle into milking bays formed a necessary part of his duties. Whilst herding the cows preparatory to milking, two cows collided with the respondent, and knocked him against a rail which divided the milking yard. He suffered injuries to his neck, back, right shoulder and elbow. He sued the University in negligence.

On appeal, the University contended that the trial judge had failed to identify the particular negligent acts or omissions, that the accident had occurred as a result of the respondent's departing from the recommended system of work, and that the trial judge had not furnished adequate reasons for judgment.

HELD per Meagher JA (Ipp JA agreeing)
The appellant could not deny negligence by asserting that the respondent had not performed his task in accordance with the method which the appellant expected him to adopt; the evidence led by the respondent proved that he had complied with the appellant's methods. Sheen v Fields Pty Limited (1984) 58 ALJR 93, referred to [8-9].

HELD per McColl JA
1. Sheen v Fields Pty Limited (1984) 58 ALJR 93 has no application in circumstances where an employee is left to his or her own devices without the employer's instructions as to work procedures, or, when, with the knowledge of the employer, an employee carries out duties in a manner adopted by other employees [20].

2. An employer's duty to take measures, which would have protected an employee from the dangers or his or her task without unduly impeding its accomplishment, is not independent of a consideration of what is reasonable in the circumstances. Vozza v Tooth & Co Limited (1965) 112 CLR 316 and Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301, referred to [21-23].

3. The present case may be distinguished from Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 and Seltsam v McGuiness (2000) 49 NSWLR 262. Those were cases in which the evidence on causation did not rise above an inference that the defendant's conduct increased the risk that a plaintiff would suffer injury. Here, the unequivocal evidence was that the risk of injury was inherent in the system of work [33-34].

4. While the trial judge's reasons were brief, they did deal with the (evidentiary) matters essential to the disposition of the case before him. Beale v GIO (1997) 48 NSWLR 430; Jones v Bradley [2003] NSWCA 81, referred to [41].

ORDER
That the appeal be dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40805 of 2002

MEAGHER JA
IPP JA
McCOLL JA

Wednesday, 10 September 2003

UNIVERSITY OF WESTERN SYDNEY v RONALD NOEL MIDDLEBROOK

Judgment

1 MEAGHER JA:  This is an appeal by the University from a judgment, verdict and orders of his Honour Judge Garling in favour of a plaintiff, Mr Middlebrook.  The plaintiff was a highly experienced dairy farmer, well used to the behaviour of cows.  For many years he had been employed by the Hawkesbury Agricultural College.

2 By at least September 1998 he was employed by the University.  He was in charge of the milking, morning and afternoon, which took place at the University's dairies.  In this capacity he worked from 4 am to 7.40 am, and again at 1pm.  He had a target of milking 90 cows per hour.  I have endeavoured to portray in the form of a map the circumstances which obtained on 16 April 1999, when at 6.30am Mr Middlebrook was walking through a set of cattle yards in order to herd dairy cows up to the dairy for milking.  That map is as follows:

Milking Bays

3 On this day, he was herding the cows along the land marked "Lane" up to the gate marked "A" on the map, then through that gate into the south yard up towards the milking bays marked "C".  The line between the south and north yards from approximately the point marked "B" to the point marked "C" represents a fence (with regular posts situated along its length).  As can be seen on the map, the path to be followed by the cows was not in a straight line, but rather something of a zig-zag (or, as the parties said, a dog's leg bend).

4 As the herd was following this course, Mr Middlebrook was situate at the point marked "B".  He had been walking amongst the cows in order to ascertain which beasts were on heat.  As he was doing this he was looking towards the point marked "D", where there was a sick cow and its calf.  At all stages his dog was tied up in the lane.

5 (There was a dispute as to whether he was walking towards the milking bays - which are at the position marked "C" on the map - or away from it; but the resolution of this question of fact does not matter for present purposes).

6 Whilst at point "B" two cows plunged into him with all their force and knocked him, half-standing, half-falling, against the fence.  They being hefty animals, he suffered grievous harm.  In respect of this harm he sued the University in negligence.  And successfully so.  His account of the accident was believed by his Honour.

7 Why was there negligence, according to Mr Middlebrook?  Because, he said, animals liked going in a straight line, rather than by a devious route, which tends to upset them and cause a slight panic; and that, whilst normally docile, they could be dangerous if they charged forward as a group.  Mr Middlebrook gave evidence (which was believed) that he had drawn the University's attention to the matter, and explained how it was possible to eliminate any risk.  That was, basically, to relocate the fence separating the north and south yards by another fence approximately along the dotted line represented on the map.  He complained, but his employer did not listen to his complaints.  Moreover, he led expert evidence which supported him, and which his Honour also accepted.

8 And the University's case? It was, essentially, a denial of negligence, coupled with protestations that such an accident had never occurred before and asseverations that the dairy was constructed along the best "state-of-the-art" lines and applauded by sundry bureaucrats. It tried to squeeze the case into the statement of Gibbs CJ in Sheen v Fields Pty Limited (1984) 58 ALJR 93 at 95 that

If the appellant had performed his task in accordance with the method which his employer expected him to adopt, he would not have been at risk......."

9 The fallacy in that argument is that is precisely what Mr Middlebrook was doing.

10 I would dismiss the appeal with costs.

11 IPP JA:            I agree with Meagher JA.

12 McCOLL JA:  The appellant appeals from a judgment of Garling DCJ in which it was found liable in damages to the respondent in respect of personal injuries he sustained whilst in the appellant's employ.  The appellant challenges the trial judge's finding that it breached its duty of care as the respondent's employer.  It also complains that the trial judge's reasons were inadequate.  If otherwise unsuccessful, it does not challenge the quantum of the verdict which was $385,223.

13 I am of the view that the trial judge correctly held that the appellant had been negligent and that the appeal should be dismissed. 

The facts

14 The respondent was employed by the appellant as a dairy hand at its Hawkesbury Campus Dairy at Richmond.  Part of his duties included herding dairy cattle into the milking bays in the appellant's dairy yard.  The configuration of the dairy yard was of critical importance to understanding the respondent's case.  I set out below a diagram depicting the layout of the yard marked-up to indicate the features of the yard associated with the incident.

15 In order to enter the south yard the cows were herded north along a lane towards the outer gate of the dairy yard.  They were then required, in effect, to do a u-turn around the eastern fence and then turn again in a westerly direction to be appropriately positioned in the south yard to be herded up to the milking bays.  This manoeuvre was described by the respondent as requiring the cattle to negotiate an "S" bend and by his expert, Mr Crafter as the "chicane" - a term derived from motor racing where a piece of road with several "S" bends forces drivers to go more slowly.  Counsel referred to it as the "dogleg" - alluding no doubt to the sharp bend often found on a road or a golf course.  However described, the manoeuvre was required by the fact that the middle rail ran parallel to the two outer fences.

16 The respondent was shown the layout of the dairy yard when it was first being constructed in 1990 or 1991 by a Mr Hamilton, who was then the operations manager of the appellant's agricultural activities.  He said he pointed out to Mr Hamilton that the dogleg would create "a dangerous risk for people working in (the yards) where cows had to walk like that."  The danger of which he advised Mr Hamilton was that where cows had to take too many turns they would push one another which posed a risk to operators.  He suggested to Mr Hamilton that the yard be designed so that the dogleg was eliminated by moving the middle rail off its parallel plane approximately 45 degrees north so that it would then be at an angle to the perimeter fences - in other words along the dotted line in the diagram I have set out above.  Constructing the middle rail along that line, he said, would have eliminated the turns the cows would otherwise have to make within the dairy yard.  He said that Mr Hamilton's response to his suggestion was that it was, in effect, too late to change the middle rail which had already been constructed.  Mr Hamilton agreed that the respondent had suggested the relocation of the middle rail and that his suggestion had not been implemented. 

17 The respondent left the appellant's employ shortly after the new dairy yard was constructed.  He did not work in the dairy yard until he returned to the appellant's employ in September 1998.  At that time the layout of the dairy yard was that which he had observed in 1990 or 1991.  Once again he became concerned about its design and complained to the Manager, Mr Pierce, that the yard was not safe for the workers.  Mr Pierce said that he could not recall any such conversation.  He agreed, however, that while the dogleg was used there was a risk that the cows could move in a manner which could force a person in their midst against the fence.  Mr Pierce also agreed that there was always a risk of injury when people were working with cattle and that risk was enhanced when cattle were concentrated within the south yard.

18 On 16 April 1999 the respondent was walking through the centre of the cows moving towards the milking bays.  He was inspecting the cows on either side of him to determine whether they were in season or for any other matters which may require veterinary attention.  He was also paying attention to a young cow which was calving in a nearby field to the north, in order to ensure that if anything went wrong with the birth she could be attended to immediately.  As the cow which was calving lay down, he moved towards the middle rail to see what was happening.  When he turned back to the cows in the south yard he realised that they were coming towards him.  He then became jammed between the cows and the middle rail.  He took off his hat and hit the cows which moved back giving him sufficient room to be released.  He suffered injuries to his neck, back, right shoulder and elbow.

19 The role of the middle rail and the dogleg in the incident is best captured in the respondent's words.  He said: 

"Q.         What part do you say the dogleg played in this accident?

A.          Well, having the experience that I had with dairy cows, herringbone cows push, they're taught from the very first day of their lactation to push on other cows so when they've come around that dogleg, they've come around like a wave and come off the - come off the southern side fence and as they do, like anything that comes around, it sort of comes back and that's when they came back towards me."

20 He was supported in this respect by Mr Crafter who was an expert in farm management called in his case.   Mr Crafter said:

"The accident occurred because the lead cows of the herd were milling around as they came out of the chicane.  Because of this they needed to be persuaded to move forward towards the dairy.  Mr Middlebrook was attending to this and using the opportunity to look for signs of any of the cattle being on heat."

21 Mr Crafter identified a number of factors as leading to the respondent's accident.  Importantly he criticised the dogleg which he said "upset the free flow and movement of the cows and caused them to bunch up and circle."  He said the dogleg should not have been there and that it was the "milling, bunching and circling of cows as they travelled through the [dogleg] and out of it that caused the [respondent's accident]."

22 The respondent put his case on negligence in a number of ways.  He complained of the dogleg approach the layout of the dairy yard required the cows to take, of the fact that both the north and south yard should have been used, to herd the cows up to the milking bays of the fact that the middle rail should have been moved so that the cattle could enter the holding yard in a straight line and finally of the system of work which required him to walk through the herd to inspect the cows.

The judgment below

23 The trial judge found the respondent to be a very impressive witness who was straightforward and upon whose evidence he could rely.  He also regarded the respondent's expert, Mr Crafter, as more experienced than the appellant's expert, Mr Hemmings - a milk-harvesting specialist.  He preferred Mr Crafter's evidence to the extent that there was any significant dispute with Mr Hemmings.

24 His Honour held that the appellant was negligent in requiring the plaintiff to work in the yard in circumstances where the cows were required to turn and did not have full use of the yard.  He also concluded the risk of persons in the position of the respondent being injured was foreseeable, that the appellant had been warned of the risk and that the risk could have been rectified in the manners proposed by the respondent's expert.  He also found, however, that the respondent was guilty of contributory negligence in that, as a highly experienced cattle man with knowledge that the situation in which he was required to work could be dangerous, he nevertheless allowed himself to become distracted by the cow giving birth as he walked through the advancing cattle.  He assessed contributory negligence at 15%. 

Grounds of appeal

25 The appellant complained that the trial judge had failed to identify the particular acts or omissions which constituted negligence, had failed to identify how any negligent acts or omissions on its part caused the respondent's injuries and had failed to provide adequate reasons in support of his ultimate conclusion.  It also complained that the trial judge had erred in failing to recognise that the movement of the cows was unpredictable and unforeseeable and that the accident had not been caused by its negligence, but more probably, as a consequence of the respondent departing from the recommended system of work. 

Decision

26 The appellant submitted that in order to determine whether the appellant had breached its duty of care to the respondent it was necessary to identify the nature of the harm he suffered, referring to Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] 205 CLR 254 per Gleeson CJ at 262 [14]. While not doubting the utility of the Chief Justice's observation, it should be noted that it was made in the circumstances where the issue of the duty of care alleged was highly controversial - being a case in which the plaintiff had alleged that a landlord owed a duty to a tenant's employees to prevent physical injury to them arising from the criminal behaviour of third parties. The Chief Justice's observation was intended to indicate, in my view, that identification of the nature of the harm might, in the circumstances of that case, illuminate the exercise of determining the problematic issue of the existence of a duty of care. It might be noted that Gleeson CJ regarded cases arising out of employment relationships as being those where the existence of a duty of care was well recognised and in which cases "references to duty of care, breach of duty and causation provide convenient sub headings for a judgment, but in many cases the concepts require no further analysis". [1] I agree with his Honour. This case should be approached on that basis. I turn then to the issue of breach of duty.

27 The appellant's essential submissions were that the respondent was an experienced dairy man, the dairy yard in which he was working was a "state of the art" dairy, that the herd with which the respondent was working were Friesian cows which were not aggressive and that the respondent was not carrying out the system of work it had prescribed but, rather, a work system which suited him. 

28 The appellant submitted that the accident happened because the respondent's dog was at the heel of the cows, where it should not have been and "spooked" the cattle so that they jumped away from the dog causing the accident.  The difficulty with accepting this submission is that the respondent denied that the dog was herding up the cows immediately prior to the accident.  He said that the dog was "lying on its guts in the mud, like it was trained to do".  Having regard to the fact that the trial judge accepted the respondent's evidence in all respects, it is not open to this Court to accept the appellant's submissions concerning the role of the dog.

29 The appellant submitted that, rather than following the system of work prescribed by it, the respondent chose to follow a work system which suited him. In such circumstances, it submitted the case was analogous to Sheen v Fields Pty Limited (1984) 58 ALJR 93 in which an employer was held not to have breached its duty of care in circumstances where it had provided safety goggles to an employee who, unbeknownst to it, did not wear them and suffered injuries when a piece of steel flew into his eye causing blindness. Gibbs CJ (with whom Mason, Wilson and Dawson JJ agreed) held that it was not foreseeable on the employer's part that its employee would adopt a different and dangerous method of work.

30 In response to this submission the respondent pointed out that Mr Pierce's evidence was that the manner in which the dairy yard was used was "at the discretion of the operator" and that, in essence, the respondent was left to his own devices without instructions as to the safe work procedures the appellant wanted him to follow.  This evidence was obviously inconsistent with the appellant's submission.  In such circumstances Sheen v Fields Pty Limited has no application.  It might also be noted that his Honour found that the respondent carried out his duties in a manner adopted by other employees to, I infer, the appellant's knowledge. 

31 The appellant submitted that, in the light of the respondent's extensive experience, it could not be concluded that it had failed in its duty to him. It referred to the well-known statement of Windeyer J in Vozza v Tooth & Co Limited (1965) 112 CLR 316 at 319 and McLean's Roylen Cruises Pty Limited v McEwan (1984) 58 ALJR 423 at 425. These cases emphasise that while, of course, an employer is bound to take reasonable care for the safety of its employees, nevertheless, to make out a case of breach of duty, the employee must elicit evidence which demonstrates either directly or by reasonable inference, to quote from Vozza, that "the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment". [2]

32 The appellant submitted the respondent had failed to satisfy that requirement.

33 In Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 308 Mason, Wilson and Dawson JJ referred to the passage from Vozza set out above and cautioned those who read that passage against interpreting the phrase "without unduly impeding its accomplishment" as in any way qualifying "an employer's liability independently of the question of what is reasonable in the circumstances". Their Honours acknowledged that "it has long been recognized that what is a reasonable standard of care for an employee's safety is 'not a low one'" and that "what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community". [3]

34 The appellant challenged the trial judge's finding that it was negligent on the basis that the dairy was a "state of the art facility, had been designed and constructed after consultation with numerous experts, had been the subject of a number of safety audits by its Occupational Health and Safety Committee" and, finally, that "there was no logical basis for concluding that the cows were any less likely to have acted in the unpredictable manner in which they did by reason of the fact that the yard provided for the cows to enter the yard after negotiating a turn."

35 The appellant also challenged his Honour's finding that injury in the circumstances was foreseeable on the basis that the cows had never previously displayed any aggressive behaviour or injured an employee and that Friesian cows were not aggressive by nature and like most dairy cows were used to human interaction.  It submitted that the cows "knew the system" and were milked twice a day. [4]

36 The appellant conceded that the risk to which the respondent was exposed in the circumstances in which he carried out his duties of being crushed by cows in the southern yard was not fanciful.  This was a proper concession in the light of Mr Pierce's evidence to which I have referred.  It submitted however, that even given that concession, it was nevertheless necessary to identify the respect in which the respondent contended, and the trial judge was entitled to find, that it had been negligent.  In essence its submission was that the Court could not be satisfied that it was unreasonable for the appellant not to take the steps which the respondent contended would have alleviated the risks.

37 The respondent relied upon Neill v NSW Fresh Foods & Ice Pty Limited (1963) 108 CLR 362 at 370 where Taylor and Owen JJ observed that a risk to which an employee was exposed was an unnecessary one "if by the adoption of some reasonable form of precaution or safeguard it could have been eliminated or minimised". He submitted that Mr Crafter's evidence warranted the conclusion that reasonable precautions and safeguards were available.

38 Foreseeability and inexpensive precautionary measures do not, of course, inevitably lead to a finding of a breach of duty of care. In this case, however, just as in Rockdale Beef Pty Limited v Carey [2003] NSWCA 132, the risk of harm to the respondent was "real and obvious and the harm that could result was potentially serious." [5] In this case, as I have already observed, Mr Pierce agreed that there was always a risk of injury when people were working with cattle so that it might be said, as it was said in Rockdale Beef Pty Limited, that the risk of injury was inherent in the system of work. [6]

39 The respondent also drew attention to Gaudron J's adoption in Naxakis v Western General Hospital & Anor (1988) 197 CLR 269 at 278 - 279 [31] of the proposition that where "a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring" (emphasis supplied). Her Honour was quoting McHugh J in Chappel v Hart (1988) 195 CLR 232 at 244 - 245. Callinan J also adopted that passage from McHugh J's judgment.[7] In reply, counsel for the appellant submitted that this Court had held in Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 that Gaudron J's statement was not the law of New South Wales.

40 In Bendix Mason P considered the question whether a plaintiff could satisfy the issue of causation by demonstrating that the defendant's conduct in exposing him to asbestos increased his risk of developing mesothelioma.  Mason P saw the "introduction of the notion of increased risk [as involving] a different universe of discourse [from material contribution] albeit one which is not unhelpful provided that the plaintiff's ultimate onus of proof is not displaced." [8]  His Honour held that the law does not regard the demonstration of an increase in risk flowing from the defendant's conduct as discharging the plaintiff's burden of demonstrating that the defendant's conduct caused or materially contributed to injury and that it was not open to an intermediate court of appeal to so hold. [9]  Beazley JA held that the onus remained on the plaintiff throughout to prove causation on the balance of probabilities and that that onus was not discharged "by establishing that a particular matter cannot be excluded as a cause of injury." [10]

41 Stein JA dissented, emphasising the practical approach the law takes to the issue of causation. He observed that in Wilsher v Essex Area Health Authority [1988] AC 1074 Lord Bridge of Harwich made it clear that the notion of "increased risk" did not shift the burden of proof which remained on the plaintiff to prove causation. [11]

42 Stein JA returned to this issue in Seltsam v McGuiness (2000) 49 NSWLR 262 at 293 - 294 [202] - [205] considerably fortified, no doubt, by McHugh J's decision in Chappel v Hart and Gaudron and Callinan JJ's adoption of McHugh J's formulation of the "increased risk" test in Naxakis v Western General Hospital. Neither Spigelman CJ or Davies AJA considered the concept of "increased risk" as a matter of law. The Chief Justice approached the matter on the basis that the inquiry which was required in Seltsam was whether there was evidence which would demonstrate that there was an increased risk of injury and that that risk eventuated. [12] He concluded that the evidence did not justify an inference of causation. It appears, however, that had he found that the evidence did demonstrate an "increased risk" which eventuated, he would have been of the view that the trial judge would have been entitled, although not required, to find that the defendant's conduct materially contributed to the injury. [13] In that respect the Chief Justice appears to have favoured Stein JA's approach.

43 Fascinating as this debate is, it is not necessary to consider it further for the purposes of this appeal. Bendix and Seltsam were each cases in which the evidence on the causation issue did not rise above the inference that the defendant's conduct increased the risk that the plaintiff would suffer injury.  In those circumstances the Court in each case, by majority, held that the plaintiff had not discharged the burden of proof on the causation issue. 

44 In this case, however, Mr Crafter's unequivocal testimony, was that the respondent's injury was caused by the dogleg turn and the inadequate use of the yard.  Further, the respondent had clearly warned the appellant of the risk created by the dairy yard and the danger of the dogleg turn.  He gave evidence which the trial judge clearly accepted that "cows are only animals and they travel better in a straight line".  Mr Crafter, too, said cows should be able to travel in a fairly straight line.  The step the appellant had to take to avoid the risk identified by the respondent involved only a day's work at a cost of $900. 

45 The appellant complained that the trial judge did not refer to its evidence at all, let alone to its evidence that the dairy was a state of the art facility.  The fact that the dairy was "state of the art" is to no avail in circumstances where the respondent was exposed to precisely the risk of injury arising from that layout.  Indeed, having regard to his Honour's acceptance of Mr Crafter's evidence which gave expert endorsement to the no-nonsense view about the dogleg the respondent had expressed some 8 or so years earlier, his Honour was entitled to conclude that even the "state of the art" dairy was not immune from criticism.  In this case the "new machines and methods" could not compete with the respondent's arcadian wit.

46 In my opinion, his Honour was entitled to conclude that the respondent had discharged the burden of proof on the breach of duty and causation issues.

Inadequate Reasons

47 I turn now to the appellant's complaint about the trial judge's reasons.

48 It is true that the judgment may be described as dealing rather sketchily with the case on liability.  In this respect I note that His Honour's decision was not reserved but was delivered at the end of a 3-day hearing.

49 The content of the obligation to give adequate reasons for judgment is well known. The topic was dealt with at some length by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at [441ff]. More recently the three fundamental elements distilled by Meagher JA in Beale were summarised by Santow JA in Jones v Bradley [2003] NSWCA 81 at [125] in the following terms:

"First, the judge should refer to relevant evidence, but need not do so in detail. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the Trial Judge, then an appeal court may infer that the Trial Judge overlooked it or failed to give consideration to it (see North Sydney Council v Lygon (1995) 87 LGERA 435). Second, a judge should set out any material findings of fact reached. The obvious extension of the first principle is that where findings of fact are not referred to, an appeal court may infer that the Trial Judge considered the finding to be immaterial. A judge must say how he or she comes to accept the evidence of one witness over the other. That is not to say that the Trial Judge must make explicit findings on each disputed piece of evidence or make findings on every argument and destroy every submission. Third a judge should provide reasons for making the relevant findings of fact and conclusions and reasons for applying the law to the facts found. "Those reasons or the process of reasoning should be understandable and preferably logical as well.": at 443.

50 In this case his Honour outlined the essential evidence.  At the end of the day, it does not appear to me that a great deal was in issue concerning the facts.  Rather the critical question was whether, having regard to those facts, the respondent had established the appellant's negligence caused his injuries.  Much turned, in my opinion, on the respondent's warning about the risk posed by the dogleg turn as well as his Honour's acceptance of the respondent's expert.  In this respect, again, his Honour referred to preferring the respondent's expert to the appellant's although, again, it might be said that he dealt rather cursorily with that matter.

51 While his Honour's reasons were brief, they did deal with the matters essential to the disposition of the case before him.  Accordingly, in my opinion, this ground of appeal is not made out.

52 I would dismiss the appeal with costs.

**********

1. Modbury Triangle Shopping Centre Pty Limited v Anzil at 262 [13].

2. Vozza v Tooth & Co Limited (1985) 112 CLR 316 at 319.

3. Bankstown Foundry Pty Limited v Braistina at 308 - 309.

4. Without entering in an anthropomorphic debate about the state of a cow's mind, it might
   be thought that the cows were responding more in the conditioned manner of Pavlov's dogs in entering the south yard.  Indeed this was the respondent's very complaint about the behaviour he predicted.

5. Rockdale Beef Pty Limited v Carey per Ipp JA at [107].

6. Rockdale Beef Pty Limited v Carey per Ipp JA at [100].

7. Naxakis v Western General Hospital at 312 [127].

8. Bendix at 312.

9. Bendix, especially at 315 - 316, 318.

10. Bendix at 339A.

11. Bendix at 345.

12. Seltsam at 279 [108].

13. Seltsam at 279 [109].

LAST UPDATED:     15/09/2003