Hill-Douglas v Beverley[1998] QCA 435

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2829 of 1998

Brisbane

[Hill-Douglas & Anor v. Beverley]

BETWEEN: 

SHOLTO ALBERT SIDNEY HILL-DOUGLAS and ZOE MARY ELIZABETH HILL-DOUGLAS trading as A E HILL & CO

(Defendants) Appellants

AND:

DALLAS LESLIE BEVERLEY

(Plaintiff) Respondent

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2829 of 1998

Brisbane

[Hill-Douglas & Anor v. Beverley]

BETWEEN: 

SHOLTO ALBERT SIDNEY HILL-DOUGLAS and ZOE MARY ELIZABETH HILL-DOUGLAS trading as A E HILL & CO

(Defendants) Appellants

AND:

DALLAS LESLIE BEVERLEY

(Plaintiff) Respondent

Pincus JA

Thomas JA

Chesterman J

Judgment delivered 18 December 1998

Judgment of the Court.

APPEAL ALLOWED.  JUDGMENT BELOW SET ASIDE AND IN LIEU THEREOF JUDGMENT ENTERED FOR THE APPELLANTS.  RESPONDENT TO PAY APPELLANTS’ TAXED COSTS OF ACTION AND APPEAL.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 18 December 1998

1. The appellants (who were the defendants in the action) appeal against a judgment by which they were found liable to pay the respondent (plaintiff) $488,004.00 damages for personal injuries he suffered while employed by them.  The respondent was a jackaroo and the defendants were the owners of a property known as “Luthrie”, located about 130 kilometres to the west of Longreach.  The trial judge gave this description of the respondent’s case:

“The plaintiff claims against his ... employers for injuries suffered by him in a motorcycle accident on 10 September 1988. ... He alleges that on the day of the accident and immediately prior to it, he was mounted on a motorbike conducting an inspection of bores and fly traps on the property and was also checking for fly-blown sheep.  After visiting a bore ..., he says that he observed fly-blown sheep and set about cutting them out from the flock.  He says that whilst engaged in this activity his motorbike ran into a wire fence separating one paddock from another.  A strand of wire on the fence struck ... him on the neck causing severe injuries.”

1. Although some fifteen particulars of negligence were pleaded, the trial judge noted that the respondent’s case on liability reduced to four allegations:-

1. failing to maintain a safe system of work;

2. failing to construct or maintain the dividing fence in such a way as to make it reasonably observable by persons working in close proximity to it on vehicles such as two wheeled bikes;

3. failing to give the plaintiff any instruction or training as to proper or safe methods of manoeuvring a motorcycle whilst mustering or otherwise working with stock in close proximity to fences; and

4. failing to provide a trained sheep dog or sheep dogs.

3. When considering the question of liability the trial judge said:

“In the presentation of the case and in submissions the (respondent’s) counsel, appropriately in my view, abandoned reliance on allegations based on the construction, maintenance and marking of the dividing fence.

The principal thrust of the (respondent’s) case was that requiring a jackaroo or stockman to muster or cut out sheep using a motorbike constituted a failure to provide a safe system of work, unless the workman was provided with a suitably trained sheepdog or assistance by another person.  The substance of the argument ... was that the unaided task of mustering or cutting out sheep was much more difficult to perform than the same task with the aid of a trained sheepdog or another skilled person.  It was implicit in the argument ... that the increased difficulty in the task led to a necessary increase in concentration on the part of the sole workman on the tasks at hand with a consequent lowering of his ability to keep a proper lookout for hazards such as holes in the ground, protruding rocks, tree stumps and fences.”

1. The trial judge then considered, and rejected, the allegation that the appellants were negligent in not providing a trained sheep dog to assist the respondent with the task of cutting fly-blown sheep from the flock.  The allegation that the appellants failed to provide a safe system of work was a corollary to the non-provision of an assistant, either human or canine.  His Honour concluded:

“If the plaintiff had had such forms of assistance on the occasion in question he could still have been executing a manoeuvre on his motorbike in the subject location and have struck the fence inadvertently.  But I cannot conclude that there was no safe system of work merely by virtue of the fact that the (respondent) mounted on a motorbike was required to perform tasks of mustering and cutting out by himself.  The fact that the work may be more time consuming and more difficult to perform does not lead to the conclusion that it is unsafe.”

5. The trial judge next dealt with the remaining allegation that the appellants were negligent by reason of not giving the respondent any adequate instruction or training with respect to the proper or safe methods of manoeuvring a motorbike while working with stock in close proximity to dividing fences.  The trial judge referred to the duty of an employer:

“ ‘... to take reasonable care to avoid exposing the employees to unnecessary risks of injury.’  Hamilton v. Nuroof (WA) Pty Ltd (1956) 96 CLR 18 per Dixon C.J. and Kitto J.,”

and to McLean v. Tedman (1985) 155 CLR 306 at 313 in which it was held that an employer has an obligation to “establish, maintain and enforce” a safe system of work.  The trial judge continued:

“Very little evidence was adduced as to the dangers inherent in using motorbikes in the type of country and in the circumstances under consideration.  I am prepared to find, however, that the work of mustering, cutting out ... sheep and travelling through a flock looking for fly-blown sheep poses a material risk of an accident of the type which in fact occurred.  There was a material risk of running into a fence or other obstacle whilst performing a task which necessarily requires considerable concentration on an object or objects other than the motorcyclist’s route of travel.  That risk, in my view, was readily foreseeable.  No evidence was led as to ways in which such a risk could be obviated or reduced as a matter of practicality.  Nor was there any evidence of industry practice.  Immediately prior to the accident the (respondent) had not located the position of the fence, he was not alerted to the need to do so and nor was he keeping a careful lookout for the fence. ... The risk of running into dangerous objects whilst traversing a large paddock on a motorbike unless one keeps a careful lookout is obvious enough. 

However, in my view, the principles to which I have referred, demanded that the (appellants) took at least some steps to bring home these dangers to an employee such as the (respondent) and to ensure, so far as was reasonably practical, that the (respondent) kept in mind the warnings given to him of the necessity to keep careful lookout for fences and the like whilst engaged in activities such as mustering.  In my view, it was not sufficient for the (appellants) to simply trust to the experience natural caution (if any) and judgment of the (respondent). ... The (appellants) thus breached a duty of care owed to the (respondent) and the (respondent), in consequence, suffered loss and damage.”

6. On the day of his accident the respondent had been left alone on “Luthrie” to maintain the property and its stock.  The only other persons on the property were Ms Riggs, the appellants’ governess, and a contractor who was painting the homestead.  The male appellant was to be away for a few days only.  His instructions to the respondent were “basically to keep a check on the property and make sure everything (ran) smoothly”.  More specifically he was to check the bores to ensure there was adequate water for the sheep and to renew fly baits.

7. Part of the routine of running “Luthrie” was to treat sheep that were observed to be fly-blown in the course of performing other work.  Thus if, on a job or travelling to a job, the male appellant or the respondent observed fly-blown sheep, they would ordinarily catch them and treat them.  Often they would not have with them the implements for treating the sheep, in which case the animals would be tethered so they could not roam and one or both of Mr Hill-Douglas or Mr Beverley would return as soon as convenient to treat and release the sheep.

8. On the day of his accident, the respondent travelled by motorcycle from the homestead to check the water in a bore.  He took with him Ms Riggs, the governess.  His explanation for doing so was that the contract painter was making unwelcome sexual advances to her and she did not wish to be left alone with him in the homestead.  Ms Riggs rather disputed that explanation.  Her recollection was that she simply went with the respondent for an outing.  The trial judge did not resolve the conflict, which may be irrelevant.  The tasks which the respondent was performing when injured would ordinarily be performed without a pillion passenger but nothing seems to turn on the fact that Ms Riggs was with him.  There was no suggestion that by reason of her presence it was unusually difficult to control the motorbike or to keep a lookout.

9. The bore to which the respondent rode with Ms Riggs was about 16 kilometres from the homestead.  It was in a paddock about 6,000 acres in extent which contained altogether about 1,500 sheep.  There was a scattered flock of about 100 sheep in the vicinity of the bore.  The respondent noticed that some of them appeared to be fly-blown.  After checking the bore and rebaiting the flytrap he rode in pursuit of the sheep.  It was his intention to separate from the flock any which appeared fly-blown and to treat them.  He had no shears with him and so could not have treated any severely affected animal.  The respondent knew the dividing fence was in his vicinity.  It was his intention to herd the sheep against the fence and use it as a barrier to turn them toward some yards where it would be easier to capture them.  It was whilst he was engaged in this activity that he rode into the fence.

10. The appellant challenges the approach taken by the trial judge on two bases:

1. that the exercise of reasonable care on their part required no more of them than they performed; and

2. the respondent had not established as a matter of probability that had the further instruction or warning mentioned by the trial judge been given it would have prevented the harm which befell the respondent. 

11. The appellants refer to and rely upon some statements of principle found in decisions of the High Court which, though of a respectable age, have not been disavowed.  They first refer to Bankstown Foundry Pty Ltd v. Braistina (1986) 160 CLR 301 at 307-8 in the joint judgment of Mason, Wilson and Dawson JJ:

“What must be asserted is that the law has not changed.  It is as accurate today as it was thirty years ago to say that the duty

‘is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury’ ...

We digress to remark upon the formulation preferred by Windeyer J. with whom McTiernan, Kitto, Taylor and Owen JJ. agreed, in Vozza v. Tooth & Co. Ltd. ((1964) 112 CLR 316), namely:

‘For a plaintiff to succeed it must appear, ... 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.’

...

Furthermore, it has long been recognised that what is a reasonable standard of care for an employee’s safety is ‘not a low one’: O'Connor v. Commissioner for Government Transport ((1954) 100 CLR 225) ...”.

12. The appellants then refer to a passage from O'Connor in which Dixon CJ, Webb, Fullager, Kitto and Taylor JJ said jointly (at 229-30):

“The defendant as employer was of course under a duty ... to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.

...

The standard of care for an employee’s safety is not a low one, but in a case such as this the question must be whether any suggested course that was omitted could really be regarded as reasonable.

....

It seems ... still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job.”

13. We have included the passage last quoted because it has some appositeness to the present appeal.  The late Mr O'Connor had been an experienced plumber who was directed by his employer to go with other employees to make some alterations to an awning which protected a tramway structure on a footpath.  The working party had sufficient equipment to perform the task safely.  Mr O'Connor elected to perform the task by working on the awning roof itself rather than on scaffolding provided.  He was killed when the awning collapsed.  His widow’s claim failed because, in the words of the headnote, the employer had not failed in his duty, the question of how the work should be performed being an ordinary one for an experienced man to decide.

14. The appellants then referred to Electric Power Transmission Pty Ltd v. Cuiuli (1961) 104 CLR 177.  Again the facts are worth summarising to give point to the passages in the judgment on which the appellants rely.  The plaintiff was employed as caretaker of a large construction camp in the countryside.  His duties included cutting up pieces of light bush timber for use as fuel.  He had performed this task with a tomahawk without incident for about six weeks but then suffered injury to an eye when a piece of wood flew up after being cut.  He alleged negligence of his employer in giving him a tomahawk for the task rather than an axe or by not giving him proper instruction in the use of the tomahawk.

15. Kitto J said (at 180-1):

“Still less ... was the jury at liberty to accept the view ... that an employer reasonably careful for the respondent’s safety would have given him such instruction in the use of the tomahawk as, if duly observed, would have obviated the accident that occurred.  No doubt one must be on guard against reacting too strongly against the tendency which has been shown by some courts in recent years to put at altogether too high a level the duty of an employer with respect to the safety of his employee; but when I am asked to hold that a jury may reasonably think it negligent of an employer not to give a grown man instructions in looking after himself while cutting pieces of bush timber with a tomahawk, I feel obliged to decline on the ground of common sense to do so.”

16. Taylor J said (at 183):

“But to say that in the discharge of its obligation of care towards the respondent the appellant was in the circumstances of the case bound to specify that a long-handled axe and not a tomahawk should be used ... or to instruct the respondent in the use of such a simple instrument as the latter is in my view to carry the matter beyond reason.  If one seeks far enough it is possible to perceive an element of risk in the performance of any task however simple but the duty of an employer does not extend to guarding against every conceivable risk however remote or fanciful; it is a duty of reasonableness and that standard cannot be said to have required the appellant so to specify or instruct.”

17. The trial judge found that the respondent’s injury was caused by his failure to keep a proper lookout for obstacles, including the fence, while engrossed in the activity at hand, which was locating and capturing fly-blown sheep.  The trial judge found also that the risk of running into dangerous objects whilst traversing a large paddock on a motorbike unless a careful lookout be kept was “obvious enough”.  The appellants argue therefore that the exercise of reasonable care on their part as employers did not require them to do more than they did.  They point to the expression found in O'Connor that the employer’s obligation to warn extends to “unusual or unexpected risks” and the risk posed by the existence of the fence was, by contradistinction, obvious and known to the respondent.  Was this a case in which the appellants should have warned the respondent of the obvious?  On this point the respondent replies by reference to  McLean’s Roylen Cruises Pty Ltd v. McEwan (1984) 54 ALR 3 at 7 at which Gibbs CJ (with whom the other members of the court agreed), having referred to that passage in O'Connor, said:

“It is not implied by this statement that an employer is never under a duty to warn his employees of risks which are usual or expected; for example, if it is apparent that the employees are making a practice of ignoring an obvious danger, a warning may be necessary.  No detailed rules can be laid down ...”.

18. That case was one in which a deckhand, experienced in the work, had his arm crushed between the hull of the vessel which he was assisting to berth and the wharf.  He claimed, as part of his case, that his employer was negligent in not warning him not to put his arm over the railing when mooring.  Gibbs CJ said (at 8):

“It is not reasonable to expect that the employer of an experienced deck-hand should be obliged to warn him of a danger which is obvious, and of which he is in fact already fully aware, unless there is some circumstance that indicates that a warning is necessary ...”.

19. The respondent has not pointed to any evidence which would indicate some circumstance by reason of which the appellant should have brought to his particular attention the need to exercise care when riding across the paddock not to collide with a fence.  It was a known and obvious hazard of which the respondent was aware.  He had not demonstrated any lack of understanding of the danger or of the need to avoid it. 

20. What this case has in common with O'Connor, McLean’s Cruises and, perhaps, Cuiuli is that in each case the employee was performing a task, the particular means of execution of which had to be decided by himself.  As well, each employee was qualified by training and/or experience to perform the task.  In each case, the work could have been done in a manner which avoided risk of injury but in each case the employee performed it in such a way as to expose himself to danger.  Although the task in each case was a relatively simple one, the precise mode of performance was determined by the workman.  He was given a degree of discretion in how the task was to be done.  In each case the chosen mode of performance involved courting an obvious risk, which, unfortunately, materialised into injury.  But the employers did not fail to take reasonable care because they conferred that discretion, or latitude, as to mode of performance on their employees.

21. The system of work was not unsafe.  The respondent was supplied with adequate equipment.  His work involved a variety of tasks which called for the display of various skills, many, if not all, of which involved some risk of harm.  But the dangers were notorious and he had the necessary experience to know how to avoid them.  There was no means by which the employer might know, hour by hour, or day by day, what precise task the respondent might be engaged upon or what precise risk might be encountered or what precise mode of discharging his work might avoid or reduce those risks.  Those were matters which necessarily had to be left to the respondent himself.

22. It is significant that, as the trial judge noted, no evidence was led as to means by which the risk which eventuated in the respondent’s injury could have been avoided or reduced.  Moreover, the trial judge did not identify what the appellants should have done “to bring home” to the respondent the dangers of riding into the fence.

23. The respondent’s counsel were unable to postulate any of the steps which the trial judge thought could have been taken by the appellants to remind him of the need to take care when riding across a fenced paddock.  Given the varied nature of the tasks which the respondent was called upon to perform, any admonition which the appellants might have given could only have been in the most general of terms.  Advice to “be careful” or to “keep a good lookout” would, in the circumstances of this employment, have been no more than platitudes.

24. The circumstances suggest to us that there was really no occasion for the appellants to warn or admonish the respondent about the need for care when rounding up sheep on his motorcycle.  It was not a task he was specifically directed to perform when the male appellant left the property.  He was generally to care for the stock but that responsibility might involve so many facets that it could not reasonably be expected of the appellants that they would do more than leave their employee to his task.  The appellants did not know what might eventuate that would require the respondent’s attention nor, on the evidence, were they aware of any particular propensity in the respondent to expose himself to risk.  There was nothing to give rise to a perception that a particular caution or warning should have issued. 

25. The plaintiff was only 22 when injured, but he was not without experience in the kind of work required of a jackaroo.  He had been a contract shearer for about a year and in that time had worked as a roustabout.  He had grown up on his parents’ cattle property which ran some sheep and neighboured sheep properties.  He was a very experienced motorbike rider, having commenced riding at the age of 12.  He had considerable experience in riding motorcycles across rough country and had competed in motocross events.

26. He had been at “Luthrie” for 13 months prior to his accident (the trial judge’s finding that he had worked at the property in excess of 18 months appears to be wrong) and had learnt his duties “on the job” from the male appellant.  He seems to have received no formal tuition, which is not surprising in an occupation such as jackaroo, but the respondent does not complain that his instruction was insufficient to allow him to discharge his duties.  The respondent knew:

“When moving about the paddocks on a bike you have to always watch for rocks and potholes.  When mustering or cutting out sheep you also have to follow the sheep movements, look for fly-blown ones and keep a mental eye on trees or telephone wires. ... I am not only stating this from personal experience but also from witnessing 2 incidents while mustering sheep with (the male appellant) prior to my injuries.  On one occasion (the male appellant) hit a tree approximately 6 metres tall and on the other occasion he hit a telephone line which ran adjacent to a fence approximately 2 metres off the ground ...”.

27. Mr Smith, who had been a grazier for many years, was called in the respondent’s case and said in evidence-in-chief in answer to the question:

“Q.  Did you ever give particular instruction to jackaroos or musterers in what to do when mustering sheep in the sense of looking out for obstacles such as fences?  Are there any rules about that?

A.  No, there are actually no rules about fences.  You probably instruct them to care for the property or the horse they are riding, or a motor bike in modern times.”

28. In cross-examination this occurred:

“Q.  You wouldn’t give a fellow instructions as to things like, ‘Look out for the fence when you are riding your motor cycle around the paddock’, would you?  He would know that automatically? 

A.  Well, commonsense would say that.

Q.  ... That is not the sort of direct instruction you would give to someone, is it? 

A.  No, no.”

29. The respondent had demonstrated in the time he was on “Luthrie” that he was a competent and, indeed, a conscientious worker.

30. Given his level of experience and competence, the obviousness of the danger he encountered and his prior knowledge of the fence and of the danger it represented and given that the appellants could not control the particular means by which the respondent performed his employment but were obliged to leave it to the respondent as the “man on the spot” to carry out his work, there was nothing the appellants could reasonably, or practically, do to protect the respondent from the risks which were inherent in his employment and of which he knew. 

31. The trial judge’s finding that the appellants ought to have done something to “bring home” to the respondent the danger of riding near a fence was a conclusion, or ultimate fact, rather than a primary fact.  Nevertheless, such a finding is not to be overturned unless it is made clear to a court of appeal that it is wrong or cannot be supported by the evidence or, where the evidence is in conflict, by the evidence accepted by the trial judge.  See Zuvela v. Cosmarnan Concrete Pty Ltd (1996) 71 ALJR 29; Hornberg v. Horrobin & Ors (unreported, Court of Appeal, Appeal No. 10477 of 1997, 18 September, 1998), per Pincus JA at 3-4, paragraph 7.  We disregard as being irrelevant to this appeal cases in which there is a challenge to primary facts found by a trial judge.

32. This does appear to us to be a case in which the evidence does not allow the conclusion to which the trial judge has come.  It is significant that the respondent did not adduce evidence of ways in which the appellants might have obviated or reduced the risk to him in working on his motorbike in a paddock near a dividing fence and that his counsel could not suggest such means in submissions.  It is significant too that the trial judge did not articulate what the appellants could or might have done in the exercise of reasonable care to protect their employee from the danger which, in the result, caused him injury.

33. The respondent was a competent and sufficiently experienced jackaroo to perform the tasks the appellants required of him.  The risks he would routinely encounter in the discharge of his employment were known to him as were the means of avoiding them.  It was an integral part of the performance of his employment that on occasions he work alone and act on his own initiative.  There was no satisfactory evidence of any routine which the appellants could establish and monitor.  The operation of their property and the nature of their enterprise inevitably meant that the respondent would be left to his own devices while performing particular tasks on the property.  Beyond ensuring that the respondent had appropriate equipment and was sufficiently skilled and knowledgable about what he had to do, there was no identifiable step that reasonable care required the appellants to take.

34. The contrary inference drawn by the trial judge is not supportable by the evidence. 

35. The appellants next submit that had a warning been given there was no basis for a finding that it would have prevented the accident which befell the respondent.  That is to say, the appellants submit that the omission of a warning was not shown to have caused the respondent’s injury. 

36. The trial judge did not make a finding on the point but it must be implicit in his Honour’s approach that he thought a warning would have been efficacious. 

37. This Court in Hallmark-Mitex Pty Ltd v. Rybarczyk (unreported, Court of Appeal, Appeal No. 11009 of 1997, 4 September, 1998) per Chesterman J (with whom Pincus JA and Demack J substantially agreed) said (at 10, paragraph 34):

“In a case of negligence based upon an alleged breach of duty to warn it is necessary to prove that it is more probable than not that if the warning had been given the loss or injury alleged would not have been suffered.”

38. Reference was made to Qantas Airways Ltd v. Cameron (1996) 66 FCR 246 in which, at 293-4, Lindgren J (with whom Lehane J agreed) said:

“In sum, if the evidence does not establish that it is more probable than not that a group member would have heeded the ... warning and taken a course in which he or she would not have suffered from the effects of (environmental tobacco smoke) in the aircraft, that group member will have failed to establish  a necessary element in the course of action in negligence ...”.

39. To the same effect is the judgment of Pincus JA in Green v. Chenoweth (unreported, Court of Appeal, Appeal No. 10998 of 1996, 11 November, 1997) in which his Honour said (at 5):

“... where what is complained of is bad advice, or lack of advice, the plaintiff cannot succeed without showing, on the balance of probabilities, that some relevant consequence ensued from the wrong: that consequence would ordinarily be that the plaintiff did or refrained from doing something.”

40. The respondent relies upon what was said by the High Court in Chappel v. Hart (1998) 72 ALJR 1344 as authority for the proposition that:

“Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established.  It is then for the defendant to show, by evidence and argument, that the plaintiff should not recover damages”.

41. There are passages in some of the judgments which support the proposition.  Gaudron J appears to have taken the opposite view.  Her Honour said (at 1346-7, paragraphs 8-9):

“It was not disputed ... that Dr Chappel was under a duty to inform Mrs Hart  of the possible consequences in the event of the perforation ... including the possibility of damage to her voice.  The duty was called into existence because of the foreseeability of that very risk.  The duty was not performed and the risk eventuated.  Subject to a further question in the case of a duty to provide information, that is often the beginning and the end of the inquiry whether breach of duty materially caused or contributed to the harm suffered.  As Dixon J pointed out in Betts v. Whittingslowe ((1945) 71 CLR 637 at 649) ... ‘breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach.’

Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided.”

42. Her Honour referred, as authority for the proposition which appears in the last sentence quoted, to her Honour’s own judgment in Bennett v. Minister of Community Welfare (1992) 176 CLR 408 at 420.  Gaudron J, it appears, would not apply the formulation of Dixon J in Betts where the case alleged against a defendant is of a failure to inform “which would encompass failure to warn”.  In such a case it is necessary for the plaintiff to prove what would or would not have happened if the warning had been given. 

43. Gummow J (at 1358, paragraph 68) said:

“In the absence of evidence that the breach had no effect or that the injury would have occurred even if Dr Chappel had warned her of the risk of injury  ..., the breach of duty will be taken to have caused the injury.”

His Honour relied for that proposition upon what Gaudron J had said in Bennett at 420-1 and thus read the remarks of Gaudron J in Bennett differently from how Gaudron J understood them.

44. McHugh J said (at 1351, paragraph 32):

“Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action.  Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered.  The inquiry as to what the plaintiff would have done if warned is necessarily hypothetical.  But if the evidence suggests that the acts or omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff has suffered.”

45. His Honour then formulated six “conclusions concerning whether a causal connection exists between a defendant’s failure to warn of a risk of injury and the subsequent suffering of injury by the plaintiff as a result of the risk eventuating”.  The sixth conclusion was (at 1352, paragraph 34):

“(6)the onus of proving that the failure to warn was causally connected with the plaintiff’s harm lies on the plaintiff.  However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection.  An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists.”

46. It is in the judgment of Kirby J that one finds most support for the respondent’s submission reproduced in paragraph 40 of these reasons.  His Honour said at 1367 (paragraph 93, subparagraph 8), relying upon the remarks of Dixon J in Betts:

“Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established.  It is then for the defendant to show, by evidence and argument, that the patient should not recover damages.”

47. Hayne J (who dissented) appears to have disagreed with that approach.  His Honour said (at 1374-5, paragraphs 124, 125 and 127):

“... it may be suggested that a sufficient causal relationship is established by showing that the subject matter of the negligent conduct - a failure to warn of risk to the voice - is the very subject matter of the damage.  But that connection is not enough. ... No doubt the fact that what I have called the subject matter of the negligent conduct and the subject matter of the damage are the same is important to that intuitive process of analysis that is referred to when it is said that questions of causation are questions of fact ... [b]ut important as this consideration is, it is not determinative. ... The difficulty in the analysis that looks only to whether the subject matter of the negligent conduct (failure to warn of risk to voice) and the damage suffered (damage to the voice) are the same is that it does not pay sufficient heed to the comparison that the law requires between the facts of what happened and the hypothetical facts of what would have happened if there had been no negligent act or omission.”

48. We would read his Honour’s judgment as requiring an evidentiary focus on the comparison between what happened and what hypothetically would have happened had the information or warning been provided.  There would seem in that approach no room for the presumption of causation arising from proof only of the nature of the risk and the eventuation of that risk.

49. There is insufficient support in the judgments for the proposition advanced by the respondent.  It finds not support in the judgment of Hayne J.  It is disavowed by Gaudron J, relying on her Honour’s judgment in Bennett, which, however, provides the basis for the presumption expressed by Gummow J.  The respondent submits that its proposition is supported by the judgment of McHugh J in the passage we have set out but a careful reading of what his Honour said shows that this may not be so.  His Honour said:

“... once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case ... .  An evidentiary onus then rests on the defendant ...”.

It appears that by requiring the plaintiff to prove cause of harm, McHugh J was saying that before the evidentiary onus passes to the defendant, the plaintiff must first have proved:

1. the defendant breached the duty to warn of a risk; and

2. the risk eventuated; and

3. caused harm to the plaintiff.

By contrast, Kirby J required only of the plaintiff that he or she prove a breach of duty which is closely followed by damage.

50. The proposition which the respondent advances and for which it submits support can be found in the judgments of McHugh and Kirby JJ in Chappel should not be taken to be applicable in any context wider than medical negligence with which Chappel was concerned.  This, we think, emerges clearly from the judgment of Kirby J.  His Honour said (at 1361, paragraph 87):

“... establishing a causal connection between medical negligence and the damage alleged is often the most difficult task for a plaintiff in medical malpractice litigation (as, indeed, in other negligence actions). ... The outcome is a branch of the law which is ‘highly discretionary and unpredictable’.  Needless to say, this causes dissatisfaction to litigants, anguish for their advisers, uncertainty for judges, agitation amongst commentators and friction between healthcare professionals and their legal counterparts.

There are no easy solutions to these problems.  This is apparent from the many cases concerned with causation in the context of medical negligence coming before final and other courts of appeal in England, Canada, the United States of America and Australia.”

51. At 1367 (paragraph 93, subparagraph 8), his Honour went on:

“One means of alleviating the burden cast by law on a plaintiff to establish a causal relationship between the breach and the damage concerns the evidentiary onus. ... [T]he realistic appreciation of the imprecision and uncertainty of causation in many cases - including those involving alleged medical negligence - has driven courts in this country, as in England, to accept that the evidentiary onus may shift during the hearing.”

52. Although Kirby J referred to difficulties of causation affecting all types of negligence actions, his Honour’s remarks appear to focus on the particular difficulties of proving causation in actions for negligence against “healthcare professionals”.  The “provisional” proof of causation, which arises from proof of breach of duty followed by occurrence of the risk there was a duty to avoid, is a relaxation of what is usually required of a plaintiff to make out a case of negligence that should be understood as applying only to medical negligence cases and for the reason that there are particular difficulties of proof in such cases.  Where there are no particular difficulties in proving causation by reason of the complexity of the subject matter of the claim there is no need or justification for the relaxation.

53. The context in which the remarks in Chappel were made is very different from the present case.  The surgery which Mrs Hart was advised to undergo involved an identifiable and foreseeable risk of a particular injury.  She was not informed of the risk, underwent the surgery and suffered the foreseeable injury.  She proved that had she been told of the risk she would have avoided it by not undertaking the surgery at that time performed by that doctor.  The High Court divided on whether, because she would ultimately have had the operation and run the same risk, the failure to warn was causative of her condition. 

54. Such a case is far removed from one in which the respondent knew of the risk and could have avoided it, by performing his task, the doing of which he controlled, differently.  The presumption described by McHugh J has little scope for its operation where a plaintiff knows of the risk and complains that he was not cautioned against encountering it.  It is for the plaintiff to show as a matter of probability that such a warning would have caused him to act differently.  It may be thought that statements of such generality as those suggested by counsel for the respondent would be unlikely to have made any difference.  If the plaintiff proves no more than that his employer said nothing about a risk which was known to both of them, and which the employee could avoid by his chosen manner of work, then the plaintiff will not have proved that his employer’s failure to warn caused his injury. 

55. The respondent gave no evidence that he would have (or indeed could have) done anything different had he been warned by the appellants to keep a lookout for fences or other obstacles.  We agree with the appellants’ submission that there was no basis to conclude that if the respondent had been given a warning of a danger of which he was well aware that he would have performed the task of rounding up the sheep any differently.  He was riding in the vicinity of and towards the fence quite deliberately, intending to use it to direct the sheep towards the yards.  The accident occurred because of his inadvertence occasioned by his concentration on the task at hand, not because he had not been told to keep a lookout for the fence. 

56. The respondent seeks to uphold the judgment on two bases neither of which was accepted by the trial judge.  One of these is that the appellants failed to provide the respondent with a suitably trained sheep dog or any other adequate assistance to carry out his work.  As to this, the evidence showed that the appellants for reasons of their own did not utilise sheep dogs on their property.  The respondent did not essay the difficult task of proving that it is itself negligent to conduct a sheep property without trained sheep dogs.  In the event the evidence of Mr Parr, who was called by the respondent to promote the benefits of working with dogs, did not support such an extreme position.  The trial judge found, correctly in our respectful view, that the failure to provide the plaintiff with a sheep dog or human assistant for the work of mustering was not the cause of any loss.  The evidence established that there were methods, reasonably safe, by which a man working on his own on a motorbike could separate and secure one sheep from a flock. 

57. The second basis was said to be “[f]ailing to implement any or any adequate system of identification of the fence line; whether by means of a strip of dirt or mown grass beside the fence line in order to distinguish it; or otherwise when a reasonably prudent person would have done so”.

58. The difficulty with this basis is that it does not appear to have been litigated to finality.  The trial judge clearly thought that it was included within the “allegations based on the construction, maintenance and marking of the dividing fence” which were abandoned by the respondent.  There appears to have been a misunderstanding of the parties as to what allegations exactly were abandoned, but the result is the trial judge was not brought to appreciate that the respondent regarded as a live issue the question whether the appellants were negligent by reason of not providing a strip of clear space adjacent and parallel to the fence which would have made the fence easier to observe.

59. We are not sure that the trial judge was not right in concluding that that issue was abandoned with the others. 

60. The respondent led no evidence of the practice of other graziers in the area of grading or clearing a strip of land next to a fence.  Nor did he adduce evidence of what was practicable in that regard.  The evidence showed only that a strip on both sides of the fence about 15 feet wide was cleared by grading and burning.  These clearings were called “boundary roads”.  The clearing occurred as and when necessary but there was no clear evidence of when, before the plaintiff’s accident, it had last been done.  The trial judge found that the strip was grown over but there was no explicit evidence of the extent to which the strip resembled the surrounding vegetation for density and height.

61. The male appellant gave evidence that there was on “Luthrie” hundreds of miles of these boundary roads.  The property was run by the male appellant and one paid employee.  It would seem obvious that not all roads could be kept clear of vegetation at all times.  There was no investigation in the evidence of what level of maintenance was reasonable given the appellant’s circumstances including the chance of a motorbike rider coming into contact with the fence.  There was no evidence that such occurrences were of such a frequency as to require any particular level of clearing activity.

62. Moreover, there was no attempt to prove that, had the dividing road been cleared or kept clear, the respondent would have been able to see the fence any sooner than he did.  The width of the road on one side of the fence was only 15 feet, 20 feet at most.  A clearing would not be observable until a rider had emerged from the vegetation growing up to the edge of the cleared road.  In any event, whether the clearing would have been visible further back, had it been maintained, was something not addressed in the evidence.  The respondent in fact realised that he was on the road the very moment he emerged from the vegetation of the paddock.  He said:

“I saw suddenly that I was on the oil track, which was approximately 15-20 feet away from the fence.  As I hit the oil track, I hit the brakes and Lorraine screamed.  We had both seen the fence at the same time.”

63. The respondent referred to the boundary road as an “oil track”. 

64. In the result it does not seem to us that the trial judge erred in not finding that the appellants had failed to implement any adequate system of identifying the fence line by means of clearing adjacent to it or that a reasonably prudent person would have done so.

65. For the above reasons, the learned trial judge’s only finding of negligence, which was founded on a failure to warn the respondent to be careful of fences while riding, cannot be sustained and the judgment should be set aside.

66. It is therefore unnecessary to address the submissions that have been made on the issue of contributory negligence.

67. There was a cross-appeal in relation to the damages assessed in respect of two heads of loss.  It is not necessary to consider this in view of the result of the appeal but we would in any event have rejected the submissions advanced in support of the cross-appeal.  The trial judge did not, it seems to us, discount the award of damages for future earnings too severely, nor was he parsimonious in the assessment of future care.

68. The appeal is allowed, the judgment below is set aside and in lieu thereof judgment is entered for the appellants.  The respondent is to pay the appellants’ taxed costs of the action and appeal.