Dailly v Hamilton[2002] QDC 223

DISTRICT COURT OF QUEENSLAND

1. [1]
   On the 15^th June 1999 the plaintiff injured his ankle whilst employed as a farm manager by the defendants on their dairy farm known as Condowie which is situated at Riversdale Road, Kandanga. The circumstances surrounding the injury are in dispute.

2. [2]
   The plaintiff says that he injured his ankle whilst alighting from a Massey Ferguson 265 tractor. The male defendant says that the injury occurred as a result of the plaintiff turning his ankle when walking beside the tractor.

3. [3]
   The plaintiff’s case is that his injury and resultant loss and damage were caused by the negligence of the defendants, as particularized in paragraph 11 of the Amended Statement of Claim filed by leave on the first day of the trial. The particulars added by amendment that day ((d)-(f)) form the central basis for the plaintiff’s claim in negligence and/or breach of contract of employment and/or breach of statutory duty. It is common ground that the defendants did not warn the plaintiff about any risk of injury in dismounting from the tractor; nor did the defendants ever instruct the plaintiff to dismount the tractor facing inwards whilst maintaining a three point system of support. It is also common ground that the seat mechanism of the tractor was fixed by rust in position (as depicted in the various photographs in Exhibit 1 and Exhibit 7), and had been so since the defendants had purchased the farm (with tractor) in 1995.

4. [4]
   The plaintiff came to work for the defendants in April 1997. There is some dispute about whether the plaintiff started on a trial basis or not, which is irrelevant. He commenced work as farm manager, living on the property with his family, in April 1997. The Massey Ferguson was one of two tractors on the farm; the other being a larger Ford. The plaintiff had considerable prior experience as a dairy farmer. He had managed farms in Victoria and Nambour. In cross-examination, he said that he was an expert in pasture and herd management, but I am satisfied that he had a thorough knowledge of all aspects of farming, including use of machinery such as tractors. His duties involved twice day milking which would take up to four hours (in which he was assisted by his wife and on rare occasions by his older children) and general duties such as pasture maintenance, dipping and care of cattle, drafting, ploughing and planting as well as irrigation and herd control. He agreed that throughout the two year period leading up to the 15^th June 1999 he regularly used the Massey Ferguson – in fact he said he used it much more than the Ford – and he was aware of the frozen seat.

The plaintiff’s evidence

5. [5]
   The plaintiff described the incident in these terms:

“All right. Now, can you describe – now, when you went – on the 15^th of June you went to get off the tractor?-- Yes.

Did you get off the tractor facing toward the tractor or away from the tractor?-- Away from the tractor.

Was there any particular reason you faced away from the tractor rather than toward it?-- It was easier to dismount that way than turn around backwards, because the position of the seat.

Can you explain that by -----?-- Photograph 11, that probably gives an indication where there’s a gentleman dismounting from the tractor.

Yes?-- That was the easiest way to dismount because of the seat.

How did the seat make it easier to go that way rather than toward the tractor?-- If the seat was further back, it would have been easier to dismount such, as opposed to it being forward and having to – it was too awkward to turn around to get off it.

All right. So you dismounted facing outward from the tractor?-- Yes

What did you do with your left hand?-- Took hold of the grip near the indicator.

Al right. Now, if you look at photograph 11?-- Yep.

Does that indicate where your left hand would have been -----?-- Yes.

-----as you commenced the dismount?-- Yes.

Now, what was your right hand doing?-- It would have been on the steering wheel.

All right. What was – now, as you proceeded down, what happened? What did you do with your right leg?-- Put my right heel in the – in the loop as in photograph 13 and 14. He’s actually got his left foot in. I put my right foot in it.

All right. Now, at that point in time, what was happening with your two hands?-- At that point you’ve still got both grips, holding on to the steering wheel and the handgrip. And as you descend further, it’s pretty common to let go of the – or you have to let go of the steering wheel, otherwise your arm is behind you.

All right?-- And you hand on to the left hand.

So, what did – all right, so, you’re in a position; you’ve got your right foot resting on what I’ll call the loop or the stirrup?-- Yep.

You’ve got one hand indicated in the position in photograph 11; one hand on the steering wheel?-- Yes.

What do you do with your left – with your left leg?-- My left leg’s proceeding down to the ground.

All right. Now, as you proceeded down to the ground, did anything about any other parts of your body change?-- I would have let go of the steering wheel.

Why?-- Because you can’t continue to hand on to it. It’s behind you.

All right. And so when you let go of the steering wheel, what was happening in relation to your left foot?-- Left foot was travelling towards the ground.

All right. Now, what happened when the left foot hit the ground?-- I heard a crack and I fell over.

All right. Now, once you let go of the steering wheel, what sort of control did you have over your left foot?-- It's limited control because your hand is – you can’t weight bear on your arm because you’re beyond that point, ‘cause your hand is actually in this sort of position, hanging on to the grip, on the tractor. So you’re beyond then able to weight bear on it, so it’s limited control you would have.”

6. [6]
   The reference to photographs is a reference to numbered photographs in Exhibit 1, the report of Mr McDonald who gave expert evidence on behalf of the plaintiff. The plaintiff told me that just prior to the incident he had driven the tractor to the paddock with the power harrow attached and some bags of rye grass seed on the implement. When he got there, he says that Mr Hamilton was already in the paddock on the larger tractor slashing. The plaintiff says the incident occurred as soon as he got to the paddock.

7. [7]
   The defendant’s evidence is quite different. He says that they first had a conversation about who would slash and who would plant. He said that the plaintiff had to go on an errand (he thinks to make a phone call), so he took the larger tractor to commence slashing. He says that he had done quite a bit of slashing before the plaintiff arrived on the Massey Ferguson. He says he had done a few runs when he noticed the Massey Ferguson parked in the paddock, some distance from him where he had left some seed. He says it took him a few minutes before he turned his tractor and drove to a point about 40 metres away from the plaintiff, and he disengaged the slasher. He got down and walked towards the other tractor. He noticed the plaintiff at the back of the power harrow. He thought the harrow may have malfunctioned:

“… I – I was sort of almost to him, and I said, “Is everything right?” and he said, “Yes. Oh, I’m okay” or something, and he walked to the – about halfway along the tyre, and, by that time, I’d turned and walked – headed back to my tractor, and I just heard him say something about, “I’ve done my ankle”, or it wasn’t quite as polite as that.

But what did you say? I mean you – I’d rather you tell us exactly what you think he said?-- He said, “I think I’ve done my f’ing ankle.”

Yes?-- And then he sort of leant against the tractor, and I just sort of – sort of – well, I didn’t know what to do. I just sort of just stood there and -----

Yes?-- Then he – he sort of hobbled himself along and he sat on the tyre, removed his boot.

Which tyre?-- The front tyre.

On which side is – the driver would face the steering wheel, left or right?-- On the left side.

Yes?-- Yep. And he just sort of sat with his backside on the tyre.

Yes?-- Removed his boot.

Yes?-- And his – his sock, and it was – it was swelling up, and just sat there for a while, and it was obvious – he was obviously in pain.”

8. [8]
   The plaintiff and defendant also differ as to where this incident occurred. The plaintiff says it occurred in a paddock which was known as the “drive-through” paddock which is at the very bottom of the rough “mud map” in Exhibit 6. The defendant is adamant that it occurred in the paddock depicted at the top of Exhibit 6 at the end of the laneway which runs into the farm from the road. The defendant says the paddock is depicted in Exhibit 10, which the plaintiff disputes. In cross-examination it was put to the defendant (obviously on the basis of instructions) that the incident occurred in a paddock beyond a tree line which one can see in the background of Exhibit 10 which the defendant says is his neighbour’s property. The issue is only marginally relevant to the important issue of credibility. Both men really agree that the terrain in the paddock was undulating, and not as smooth as a bowling green, although the defendant says the kyuna grass he was slashing was about 4" high. The plaintiff has not been on the property since August 1999. Both men were understandably a little vague about detail, no doubt because of the passage of time; and it seems to me that although this issue is not critical it should be resolved by my general findings as to credibility to which I now turn.

9. [9]
   The plaintiff bears the responsibility of satisfying me on the balance of probabilities that the injury he suffered was caused by the negligence of the defendants in the way in which he describes the incident. It is not as if the plaintiff’s case is pleaded as it were, in the alternative. Before dealing with this critical issue, it is necessary for me to deal with the medical evidence, as my assessment of the reliability of the plaintiff’s account is, to some extent, influenced by my findings in relation to the medical evidence.

The medical evidence

10. [10]
    The plaintiff relies upon the evidence of Dr Macneil, and the defendant called Dr Steadman. Dr Macneil’s report is Exhibit 4 and Dr Steadman’s report is Exhibit 5. The plaintiff also tendered a supplementary report of Dr Macneil (Exhibit 12) which is not based on any further assessment of the plaintiff; rather it was described by the plaintiff’s counsel as a “critique” of Dr Steadman’s report. The medical opinions vary significantly. Dr Macneil says that the plaintiff has suffered an injury to his left ankle which “prevents him from carrying out his former work” and which constitutes “a permanent impairment of the left lower extremity of 15 per cent”. Dr Steadman is of the opinion that the ankle injury would have prevented him from working for a short time, and would require 3-4 months of modified duties and that in the long term, he could manage his own problem and still continue to have a farm. His opinion is that the degree of impairment is “in the vicinity of 5% lower limb impairment as a mild ankle instability clinically”. There is no doubt the plaintiff injured his left ankle on the 15^th June 1999. When he was seen at Gympie Hospital he had tenderness and swelling over the left lateral malleolus and was initially treated with a backslab and crutches. No fracture was visible on x-ray. A diagnosis was made of soft tissue injury with the possibility of ligamentous tear. Dr Steadman opines that he suffered a small facture of the whole medical malleolus. Dr Macneil was inclined to the view that the injury was more serious.

11. [11]
    I have no hesitation whatsoever in preferring the evidence of Dr Steadman to that of Dr Macneil. There are a number of reasons for this firm finding. Firstly, I was not impressed with Dr Macneil’s manner in giving evidence; nor was I impressed with his “critique” of Dr Steadman’s report. I think it is undesirable for expert witnesses to become involved in argumentative and adversarial debate; although it may well be that Dr Macneil was asked to write this second report by the Solicitors. I stress that this is only a very small reason for my final view, but it sets the scene, as it were for a number of criticisms made of Dr Macneil by Mr Kitchin which I think are well founded. Firstly, it is common ground that in August 1999, the plaintiff informed the defendants that he had an opportunity to manage another dairy farm which was better for him, and he gave two weeks notice. He subsequently commenced work for Mr Ross (and family) at the Bells Bridge Dairy, and I am satisfied that he was required to carry out all of the many strenuous activities associated with running a farm; particularly a farm which was badly run down and needed a lot of work to build up. Dr Macneil certainly understood that the plaintiff had continued to work as a dairy farmer after the accident, but he dismissed this as relevant to his opinion that the plaintiff is unable to carry out his former work (Exhibit 4, page 3, point 4) because he was told that his wife and children helped him run the farm. There is no doubt that Mrs Dailly had always helped around the farm. In fact, the defendant and Mr Ross regard her as a better worker than her husband. The older children, I find, also helped on occasions albeit rarely before the accident. This point was therefore not relevant to assessing the plaintiff’s post-injury capacity to work. I also find that Dr Macneil was reluctant to make reasonable concessions during cross-examination, unlike Dr Steadman. It is however the evidence that emerged at the end of the cross-examination of Dr Macneil that convinces me to accept the evidence of Dr Steadman in preference to that of Dr Macneil. Dr Macneil is not an orthopaedic surgeon and never has been. He is a general accident surgeon who has not operated on anyone since 1996. The last time he treated an orthopaedic injury was in 1973, in the context of working in a regional hospital which had no specialist orthopaedic cover. As I understand his evidence (at p158) he even suggested that at the time he practiced orthopaedics as a general surgeon in the late 60’s or 70’s “orthopaedics was a part of general surgery”, which was designed to persuade me (as I perceived his evidence) that at that time there was not a separate sub-speciality of orthopaedics. This is clearly nonsense, as he acknowledged in answer to a question from me at page 158. There may have been some confusion in the doctor’s mind on this point, and I do not wish to be too harsh on him on this point. He purports to express opinions about percentage disabilities based on the AMA 5^th Edition; despite not being credentialed by the American Board of Independent Medical Examiners in the use of AMA Guidelines. Dr Steadman on the other hand, has been in orthopaedic specialist practice continuously since 1989. He has operated on between 500 and 1000 ankle joints and is accredited in use of the AMA Guides by the American Board of Independent Medical Examiners. The importance of this latter point can be demonstrated by reference to some evidence of Dr Macneil. In his “critique” of Dr Steadman he criticised Dr Steadman’s use of the AMA Guides by suggesting that the relevant table placed the injury at an impairment of 15%. I accept Dr Steadman’s evidence that this 15% was a maximum for a moderate plantar flexion limitation, and I accept his evidence that the plaintiff’s injury here is in the mild category with a permanent impairment of 5%. In cross-examination he fairly conceded that he may have been a little harsh, and revised his estimate to one of 5-7% impairment. I therefore intend to proceed on the basis of Dr Steadman’s evidence. I reject Dr Macneil’s evidence, except where it accords with Dr Steadman’s opinions.

12. [12]
    This finding is most relevant to my overall assessment of the plaintiff’s reliability. Dr Steadman gave opinion evidence as to the mechanism of how such an injury as this was most likely to occur. His evidence on this point is summarised at pages 174-174:

“Yes. Could you just explain for the Court the mechanism of injury that would give – or the mechanism that will give rise to this type of injury?-- Well, the first – the first thing to say is that there are degrees of ankle injury. A person can injure their ankle with twisting their foot and they can have anything from a sprain through to a fracture of both bones on the inside and the outside of the foot, through to compound fractures where the bone comes out through the skin. So, there are – there is enormous degree, if – like in terms of the types of injuries that there are and the amount of force that’s required to actually exact those injuries, is an important point. Now, when he described the mechanism of injury to me, I guess that, in consideration of those different mechanisms, knowing – particularly that he said to me that the tractor had a low roof and it was difficult to get on and off, I cannot necessarily imagine how, if you’ve got one foot in a stirrup and the other foot on the ground, that that would cause the ankle to go over, if you like, because he – one would expect that he would be braced – you know, holding onto the handles on the tractor or the steering wheel, with one foot in the – or on the step or the stirrup as he hops down and the other foot down on the ground. So, unless he slipped or something to that effect as he was getting out, I can’t see that just stepping down off a tractor like that would cause that injury.

What -----?-- The more common mechanism for an injury like this would be to be on uneven ground and to put the foot and be at either walking or at pace or at substantial speed and then to go over on the ankle and then sustain either a ligament injury or – or a fracture or any of those sort of things that are possible within that spectrum of fractures that I was talking about.”

13. [13]
    I accept his opinion. His evidence is more supportive of the defendant’s recollection of what occurred than it is of the plaintiff’s. Ms Magee attempted valiantly to retrieve the situation, no doubt mindful of the potential importance of this evidence at pages 193-195 of the transcript. It is clear from the re-examination (at page 201), in considering the hypothetical scenario posited by Ms Magee to Dr Steadman he had understood that the plaintiff had let go of the tractor with both hands and “was basically jumping”, which is not the evidence of the plaintiff.

14. [14]
    I also accept Dr Steadman’s opinion, based on his clinical assessment of the plaintiff, that the degree of impairment complained of by the plaintiff exceeds what the doctor would expect given the nature of the injury.

15. [15]
    In this context, the evidence called by the defendants from Mr Ross and Mr Potts is relevant. Clearly, if I prefer the evidence of these men to that of the plaintiff about his degree of disability after the accident, that is a relevant factor in my assessment of his reliability. Mr Potts is a herd recorder and in that capacity he visited the Bells Bridge Dairy on a number of occasions while the plaintiff was managing the farm for the Ross family. He gave evidence of seeing the plaintiff jumping in and out of a pit in the dairy, and walking behind the cows. He detected no limp, and he never heard the plaintiff complain of pain. The plaintiff’s evidence is that he did not jump in and out of the pit; he used the stairs and he did not walk behind the cows but that he was in pain. Despite Mr Potts’ denials, I think there is clearly animosity between himself and the plaintiff, as the plaintiff says, and I don’t think Mr Potts’ evidence assists either way in my assessment of the plaintiff’s overall reliability.

16. [16]
    Mr Ross’s evidence however is an entirely different category. He was a very convincing witness. Mr Ross and his family purchased the Bells Bridge Dairy in late 1999 from receivers. It was run down and in a serious state of disrepair. He employed the plaintiff and his wife in late 1999/early 2000. I accept that the plaintiff commenced work as manager in late December 1999. Mr Ross would visit the farm on average 4 to 5 days a month, often staying overnight. Over at least the next 12 months he observed the plaintiff undertaking all the duties of farm manager; many of which duties involved hard physical work. He saw the plaintiff walking behind the cattle; he saw him doing pasture work and walking over the property which was undulating. He particularly recalls occasions where the cows refused to go into the pen for milking. He said the plaintiff did not like the Jersey cows; and often they would attempt to escape and he would have to move very quickly to prevent this. He saw him run on occasions to get them in. The yards he described as reasonable in the dry, but boggy and unstable in the wet. At no time did he notice even a slight limp, and the plaintiff never complained of pain. As with the defendant, Mr Ross thought the plaintiff could have worked harder, and he too commented that Mrs Dailly was a very hard worker. It was never suggested to Mr Ross that he had a bad relationship with the plaintiff. Certainly, a most unusual attack was made on his credit to which I will return in a moment. Mr Ross told the Court that at the end of 2000, they were concerned about the on-going viability of the farm, and he was advised by a DPI employee, in the presence of the plaintiff, to lease it out. The plaintiff offered to lease it and did so until June 2002 when the arrangement ceased. The plaintiff says this change came about because he was having difficulties in coping because of his ankle, but this is disputed by Mr Ross. He says that the plaintiff did not mention this to him; rather he would have leased the farm irrespective of the plaintiff’s interests. It emerged in cross-examination that as a result of the breakdown of the lease arrangements in June 2002, there is now a financial dispute between the Ross family and the plaintiff. Ms Magee brought out that the parties had had three or four mediation sessions with a “counsellor” from the DPI Gympie named Tim Long. The purpose of this cross-examination remains obscure to me, but for certain it involved an allegation that Mr Ross had (in the presence of Long) threatened the plaintiff. Apart from the obvious concerns that a so-called mediator is in fact disclosing communications with parties, about which I can say little given the complete lack of evidence on this point, I can say that I found Mr Ross’s denial of such a proposition as very convincing. He was clearly outraged by the suggestion – a suggestion which really does strain credibility as a matter of common sense, because Mr Ross and the plaintiff had never previously had a bad relationship. As I have noted, I found Mr Ross to be a balanced and fair witness, and I accept his evidence. His evidence lends support to the clinical opinion expressed by Dr Steadman which is referred to earlier by me.

17. [17]
    In those circumstances, I prefer the defendant’s evidence as to how the plaintiff suffered his injury to that of the plaintiff. It follows that the plaintiff’s claim must fail.

18. [18]
    If I am found to be wrong in this conclusion I will express my findings on the plaintiff’s claim based on a hypothetical acceptance of his evidence.

19. [19]
    The classic statement of Mason J (as His Honour then was) in Wyong Shire Council v. Shirt (1979-1980) 146 CLR 40 at 47-48 is relevant:

“In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff … The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have … The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.  A risk which is not far-fetched or fanciful is real and therefore foreseeable.”

20. [20]
    The duty of an employer is to take reasonable care to avoid exposing his employees to unnecessary risk: Hamilton v. Nurott (WA) Pty Ltd (1956) 96 CLR 18 at 25. The employer is not an insurer of his employees against danger. For a plaintiff to succeed it must appear by direct evidence or by reasonable inference from the evidence 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: Vozza v. Tooth & Co. Ltd (1964) 112 CLR 316 at 319; Turner v. South Australia (1982) 42 ALR 669 at 670 per Gibbs J.

21. [21]
    There is no dispute that the defendants owed to the plaintiff a duty of care. So much is admitted in the Defence. What has always got to be kept in mind is that the defendant’s duty of care is not absolute. As Hayne J observed in Romeo v. Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 488:

“The duty is a duty to take reasonable care, not a duty to prevent any and all reasonably foreseeable injuries.

The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far-fetched or fanciful. Indeed, often it will be difficult, if not impossible, to demonstrate the contrary to the tribunal of fact. That is why it is of the first importance to bear steadily in mind that the duty is not that of an insurer but a duty to act reasonably.

What is reasonable must be judged in the light of all the circumstances.”

22. [22]
    In this case, it is not the existence of a duty of care that is in issue, it is whether the defendants have in all the circumstances breached their duty of care to the plaintiff and thereby caused the loss and damage alleged. The plaintiff’s case concentrates on the frozen seat (which is admitted), which he says encouraged a driver to dismount facing away from the tractor (which is not admitted), the height of the stirrup strip which on the evidence is either 440mm (Dr Grigg) or 450mm (Mr McDonald) off the ground, and the failure of the defendants to instruct the plaintiff to dismount facing inwards whilst maintaining a three point support system. The defendants admit they have never given the plaintiff any instruction in this regard. The plaintiff was an experienced farmer – it had been his occupation primarily since 1984 – and I am satisfied that he was very experienced in the operation of tractors. He was very familiar with the Massey Ferguson. He had driven it for two years prior to the accident, regularly, and it was the tractor he used most frequently. In his evidence, he said he dismounted facing outwards on the 15^th June 1999 because the position of the seat made it more awkward to dismount facing the tractor. He acknowledged that prior to the incident, had had often dismounted facing the tractor – in other words, on occasions he would choose to dismount in that way. I find that he chose to dismount facing outwards on the day of the incident. On balance, I am not persuaded that it is in fact more awkward to dismount facing the tractor because of the seat. This was certainly the effect of Mr McDonald’s evidence. Dr Grigg had not really considered it, but when pressed he was inclined to the view that the position of gears, and the generally cramped nature of the cabin area on the tractor would render the position of the seat fairly neutral as a factor in affecting the driver’s decision as to which way to dismount. I have examined the photographs produced by Mr McDonald carefully (see Exhibit 1) and also the photographs produced by Dr Grigg (Exhibit 7). In my judgment, the seat position played little or no part in the plaintiff’s decision to dismount as he says he did on that day. As Mr McDonald (who has made a study of dismount facilities on tractors in the context of farm “run-overs”) noted:

“The method of descent used by Dailly, understood to be facing outwards, is one commonly observed by the author during his years of association with tractors …”

23. [23]
    The plaintiff was aware of the frozen seat. He never complained to the defendants, nor did he ever complain about the step. The plaintiff’s argument about the step relates to its height. In my judgment, there was nothing about the height of the step that contributed to the plaintiff’s injury that could be attributable to the defendant in the sense of establishing a breach of a duty of care. Mr McDonald refers at pages 13-14 of his report to an International Standard 2867 and to a 1991 Australian Standard AS3868 both of which relate to Earth Moving Machinery access systems. The International Standard is in these terms:

“6.1 The height of the first step from the ground to the machine should not exceed 700 mm when the machine is in the normal parked condition.

Based on principal human factors, the recommended height of the first step should not be more than 400 mm.”,

while the Australian Standard is in these terms:

“3.2.2 Height    The height of the first step from the ground to the machine should not exceed 400 mm when the machine is parked on level ground.

NOTE:   Too great a height of the first step severely increases the potential for accident which can result in personal injury. However, the design may be such that the first step can be folded to prevent being damaged when machine is in operation. Where such a step is used, it should be designed so as to prevent the user from jumping from the machine while the step is in the raised position.”

24. [24]
    He then (at page 14) refers to AS/NZS2153 1997 which specifically relates to tractors and agricultural machinery which refers to a maximum height from ground level of 550mm. This is the standard relied upon by Dr Grigg, and the stirrup step complies with this standard. I do not detect any real difference in the opinions of the two experts on this issue. I am satisfied that the position of the step on this tractor was reasonable in all the circumstances. As to the argument that the defendants breached their duty of care by failing to instruct the plaintiff in terms of 11(d) of the Amended Claim, I am not satisfied in all the circumstances of the case that the scope of the duty of care owed extended to being required to give such instruction. AS Kirby J observed in Romeo (at 482):

“It is often easy, after a mishap, to conceive of precautions which might have been taken.”

Nor am I satisfied on the evidence that had such an instruction been given that would have caused the plaintiff to act differently: Hill-Douglas and Anor (trading as A E Hill & Co) v. Beverley: Appeal No. 2829 of 1998 (unreported judgment of the Court of Appeal delivered 18.12.98) at paragraph 54 of the judgment of the Court.

25. [25]
    The plaintiff was an experienced farm manager. He was experienced in tractor use, and had two years experience on the subject tractor. Throughout that time, he never complained to the defendants about the access system. From time to time, according to choice, he would dismount in different ways. The defendant had also dismounted both ways when using the tractor. He acknowledged that to dismount facing outwards was awkward, but not because of the seat but because of the stirrup step which tended to catch on the heel of the shoe. It is also unreasonable to submit that the defendant should have provided instruction in relation to the three point system referred to in Mr McDonald’s report. The tractor was equipped with a handhold on the mudguard over the back wheel, and the driver could also use the wheel as a support in dismounting, although it was necessary to let go of the wheel before the foot actually reached the ground. There is nothing magical about the three point system. It is common sense and for the same reasons as expressed above relating to paragraph 11(d), I find that the scope of the defendant’s duty of care did not extend to the giving of such an instruction. The comments of McMurdo P in Williams v. Mt Isa Mines Limited [2001] QCA 101 (a case closely analogous to the present case) at paragraph 15-17 are apposite:

“ ... alighting from the truck was an ordinary everyday event which involved some obvious risk; the employer could not reasonably be expected to warn of the potential danger of such a risk; any risk must have been obvious to the appellant … there were no circumstances here that made a specific warning or special training necessary … . ”

26. [26]
    It follows that even had I accepted the plaintiff’s version of how the incident occurred, his claim would have to fail. In relation to the claim based on an alleged breach of s.28 of the Workplace Health and Safety Act 1995, for the reasons expressed this claim would also fail.

Quantum

27. [27]
    In any event, it is necessary for me to assess quantum. The plaintiff’s quantum statement must be discounted to take into account my earlier findings on the medical evidence. I have already accepted Dr Steadman’s evidence and rejected Dr Macneil’s evidence. Based on the quantum cases referred to in Counsel’s written submissions I assess general damages at $20,000 and I will allow interest on one half of that amount at 2% from the date of the accident until today’s date. Specials are agreed at $2,641.35 and I adopt Ms Magee’s submission as to interest ($270.00). The claim for gratuitous care should be significantly discounted for the reasons expressed previously, and I do not intend to make any allowance for future care. I find that he would have left the defendant’s employ in any event in August 1999 because of his desire to take up what he believed was a better offer at Bells Bridge Farm. In evidence he claimed that he would have continued to work for the defendants had he not been injured; however, in his earlier Statement of Loss and Damage at paragraph 3.3.11 his Solicitors asserted (on his instructions) that he had made the arrangements to move to the other farm before the accident. The defendants paid him throughout his time off work. He has not established any basis for his claim for past economic loss. I am satisfied that he was able to properly manage the farm when the defendants went to Germany on the 18^th July 1999; although I am satisfied that he was still then suffering some pain and discomfort. I accept Dr Steadman’s evidence that he will not be able to do heavy labouring in the future. As from the 30^th June 2002, he has been unemployed. He is looking for work, although I am satisfied that there is now less work in dairy farming because of the drought and dairy industry deregulation. He is entitled to a small component of future economic loss to take into account a small loss of opportunity in the job market. I assess damages as follows: