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- Unreported Judgment
McHugh v BKE Pty Ltd QDC 254
DISTRICT COURT OF QUEENSLAND
McHugh v BKE Pty Ltd as trustee for the B W King Family Trust  QDC 254
ANDREW DUNCAN McHUGH
BKE PTY LTD (ACN 117 613 779) on its own behalf or alternatively as trustee for the B W KING FAMILY TRUST
610 of 2018
Brisbane District Court
13 December 2018
10 - 13 September 2018
Judgment for the plaintiff in the sum of $400,000.00.
NEGLIGENCE – personal injuries – where plaintiff injured his right leg while riding quad bike on defendant’s property mustering defendant’s cattle
DUTY OF CARE – whether defendant owed a duty of care to the plaintiff – where plaintiff alleges defendant engaged plaintiff to assist in managing property and cattle and was aware the plaintiff used a quad bike to do so – whether defendant breached duty of care
CONTRIBUTORY NEGLIGENCE – whether plaintiff failed to take due care for his own safety
Civil Liability Act 2003 (Qld) s 13, s 14, s 15, s 16, s 17, s 18, s 19, s 23, s 24
Derbyshire Building Co Pty Ltd v Becker (1962) 107 CLR 133
Rivett Aboricultural & Waste Equipment Hire Pty Ltd v Evans  SASC 108
S Cleary for the Plaintiff
J Given for the Defendant
Sarinas Legal for the Plaintiff
Frews Solicitors for the Defendant
- The plaintiff injured his right leg whilst he was riding a quad bike on a property owned by the defendant, as trustee for the B W King Family Trust, at Amamoor, near Gympie. The quantum of the plaintiff’s claim has been admitted in the sum of $500,000 but whether the defendant is liable to the plaintiff remains in dispute. So too does the issue of contributory negligence.
- Lynne King was the sole director and shareholder, and authorised agent of the defendant. It is alleged she engaged the plaintiff from time to time to assist in management and maintenance of the Amamoor property and of cattle owned by the defendant which grazed on it. The property covered 2 lots, referred to as 2340 and 2356 and collectively, as the property. It is alleged such work required him to use a quad bike, also owned by the defendant, and that consequently the defendant owed a duty analogous to that of an employer to an employee. It is alleged the plaintiff was injured when that duty was breached by (inter alia);
- (a)Not properly instructing the plaintiff about his use of the quad bike;
- (b)Not providing adequate equipment to enable him to perform the task of mustering cattle on the property with reasonable safety;
- (c)Not ensuring the property was reasonably safe for use by a quad bike; and
- (d)Not conducting a ‘risk’ management assessment
- The claim is also stated in the following way in paragraph 24(d) of the Second Amended Statement of Claim (Statement of Claim):
“In supplying the quad bike for use by the Plaintiff for the benefit of the Defendant, the Defendant, as bailor, thereby promised to the Plaintiff, as bailee, that the quad bike was reasonably fit for its intended use, or, alternatively, had to warn and instruct the Plaintiff of any defects, including with respect to the management and operation of the vehicle, which the Defendant knew or ought reasonably to have been aware of which made the quad bike unfit for the purpose for which it was supplied.”
- Whilst a claim based on the Residential Tenancies and Rooming Accommodation Act was abandoned during the trial the plaintiff did maintain a claim that the defendant as occupier of the property, owed a duty to the plaintiff to take reasonable care in its management of the property and breached that duty.
- It was alleged in paragraph 11 of the Statement of Claim that the plaintiff had been asked by Lynne King on occasions to assist in managing cattle on the property and as Ms King knew, had used a quad bike to perform that task. In paragraph 11(f) it is said:
“consequently, it was the express or implied request of Lynne King (or it was a common understanding between the Plaintiff and Lynne King) that if cattle were to so escape or move into the property at 2340, the Plaintiff would so muster the cattle and any calves, and use the quad bike to do so or, alternatively, it was reasonably foreseeable to Lynne King that the Plaintiff would do so.”
- It was also alleged in paragraph 26(f)(iv) of the Statement of Claim that precautions which the defendant should have undertaken included, “supplying the quad bike with a roll over protection system with netting which would have provided a protective envelope for the Plaintiff and which could contain the Plaintiff’s upper and lower limbs or supplying a lap sash seatbelt”.
- This last allegation relies upon the opinion of the authors of a joint report prepared for the plaintiff by two engineers, Roger Kahler and Ricky Blom. They provided reports of 28 July 2017 and of 7 and 14 August 2017. In those reports the authors suggest that injury could have been avoided by retrofitting a crash protection system and lap belt to the quad bike, estimated to cost in the order of $600 to $700, but also suggest, as an alternative to use of a quad bike, a two-seated utility vehicle (which appears to be somewhat similar to a golf buggy). It is said that while such a vehicle is on average more expensive than a quad bike when new, it is possible to source quality second-hand vehicles at comparable prices. This alternate vehicle was not pleaded in the plaintiff’s Statement of Claim as an alternative to provision of the rollover protection with netting or a lap sash seatbelt referred to in paragraph (26)(f)(iv) but during final submissions the plaintiff’s counsel sought to amend to add such an allegation. (See T 1-29 l7ff). Subsequently the defendant’s counsel confirmed in an email to my associate he had no objection to such amendments.
- The defendant resists the plaintiff’s claim on a number of grounds. Many relate to disputing the circumstances of the accident itself. The defendant also denies the plaintiff was authorised to use the quad bike on the day of the incident, or was generally able to do so and denies that Lynne King had expressly or impliedly requested the plaintiff to muster cattle on the property, or that it was reasonably foreseeable he would do so. It denies the defendant was a bailor for the bike and the plaintiff a bailee. It denies the defendant was obliged to ensure the quad bike was reasonably fit for the purpose of mustering cattle on the property but alleges it was, in any case, fit for that purpose and pleads that it was not aware of any defects as to unfitness of the bike.
- In paragraph 27 of the amended defence, the defendant denies breach of any duty of care and pleads, inter alia, that:
- The plaintiff was unlawfully using the quad bike without authority, and in breach of s 408A of the Criminal Code and so has no right to claim damages having regard to s 45 of the Civil Liability Act (CLA).
- Any injury suffered by the plaintiff was a result of an obvious risk with quad bike riding and so is not compensable under the voluntary assumption of risk principles set out in ss 13-16 of the CLA.
- The activity being undertaken by the plaintiff was a dangerous recreational activity within ss 17-19 of the CLA and the plaintiff has no right to recover damages for any injuries suffered.
- The defendant also alleges that by reason of the plaintiff’s manner of use of the quad bike, contributory negligence should be assessed to the extent of 100 per cent having regard to the provisions of ss 23 and 24 of the Civil Liability Act. In particular it is alleged he was travelling in excess of 10 kph, not on a formed track and drove without keeping a proper lookout and also alleges he should not have put his foot from the foot peg area of the bike onto the ground.
Circumstances of the accident
- I accept the plaintiff’s evidence that he was injured when working cattle in an area quite close to a house that he was renting on the property. The area, which included what was described in the course of the proceedings as a ditch, is clearly shown in photos at pp 55-62 of exhibit 1. It is perhaps most clearly shown in the photo at p 56. This shows a cut of a pre-existing slope to enable construction of a short driveway from the dirt roadway shown in the photo to a lean-to or shed, which is situated beyond the right hand edge of that photo. It is also clearly shown in similar photos in the report of Mr Kahler and Mr Blom. The effect of the cut was that the natural land, which Mr Kahler says had a slope of about 14 degrees, was cut to a depth of up to about half a metre, but less at various stages of the cut. The battered slope of the cut section, Mr Kahler said, was an approximate 40 degree slope. He said in evidence that vehicles such as the quad bike which the plaintiff was using were unlikely to remain in place (i.e. upright) even if stationary on a slope of 40 degrees, and were a risk of overturning when in use on a slope of 14 degrees. He said in evidence that on such a slope such a vehicle could overturn when turning along a contour, depending on the relationship of speed and turn radius. Indeed they could overturn even on an even surface, again depending on the relationship of speed and turn radius.
- The plaintiff says that just prior to his accident he was driving the bike down the roadway near to the house shown in the photo at p 62, intending to move the cattle he was mustering through a gate to his right (clearly shown in the photo). He said two cattle ran to the left, to the slope above the ditch and so he moved to his left in an attempt to get behind them. As he proceeded down the slope he turned to his left as he approached the cut section of the slope. He says that at the time he was not conscious of that cut, because he was distracted by his task in managing the cattle. He said however that he knew of the presence of the slope as a result of living on the premises and using the driveway, from which it was clearly able to be seen. He also says that as he proceeded down the hill the combination of the slope and the mottled shade and sun hid the slope from his vision so that he was not specifically aware of it as he turned, in circumstances where he was distracted by the work he was undertaking.
- The plaintiff said the right hand front wheel of the vehicle “has gone down the … ditch” and caused the vehicle to “kick” (T2-14 l13). In an attempt to stop it from overturning he says he instinctively put his right leg out onto the ground. He thereby suffered significant injury, although he did stop the vehicle from overturning. He says he then drove it back up the slope the short distance to near to his house.
- At the time of the incident he said he was travelling at only 3 to 5 km per hour. Whilst I generally accept his evidence, I do not accept that assertion. He told Queensland Ambulance officers, who were called to assist him, that he was driving at about 10 km per hour. I accept that that is a more accurate estimate of his speed on the day. Generally, and in this case, I accept contemporaneous estimates of such matters in preference to reconstructions formulated later when people become aware of the consequences of such matters. I am conscious, of course, that careful reflection can sometimes overcome inherent inaccuracies in initial estimations of, for example, speed. But I’m also in this case inclined to disbelieve the plaintiff’s evidence that he was travelling at only 3 to 5 km per hour because it appears to me that at such a speed – well below walking speed – he would be moving so slowly as to make his ready observation of the cut section of the slope almost inevitable. Put shortly, at that speed the accident would not have happened.
- An issue of significant concern surrounded the question of whether or not the plaintiff was entitled to use the defendant’s quad bike.
- In determining credit issues, I am, as I have previously said, particularly influenced by contemporaneous documentation which supports, or undermines, a party’s oral evidence. In this case emails between the parties assist me in concluding that the plaintiff’s evidence is to be significantly preferred to that of Ms King.
- The evidence of the defendant’s representative, Lynne King, was that the plaintiff had been authorised to use the quad bike used by Colin King, her partner, on a limited number of specific occasions, but not otherwise, and was not authorised to use the tractor on the property, or her own quad.
- She said the specific occasions were:
- When she told him to use it to quickly drive from her place to the house rented by the plaintiff and his wife, when their teenage daughter had accidentally started a small fire on the veranda of the property.
- When she had authorised him to use it on a particular occasion to meet the school bus.
- When the plaintiff was authorised by her to use the bike to search for a lamb, which belonged to the plaintiff and his family, which had gone missing.
- The plaintiff agreed that on each of those occasions he had been authorised to use the bike, but said that his use of the bike was more general, and that Lynne King knew that he had used bikes and the tractor on other occasions. He referred to an occasion at her home (referred to in evidence as her “property” but in the circumstances I take this to mean her home on the property) when she said that when riding the bikes “stick to the formed track, don’t drive more than 10 kph and ‘do not kill yourself’” (T1-50). He said she had seen him use the quad bike and indeed that he had ridden with her (T1-49, 50). He also said she requested that he perform work which she knew would have required or was likely to require the use of a bike and/or the tractor. On the other hand, Lynne King said that other than on those limited occasions set out earlier, he was not authorised to use the bike and that she did not know he had otherwise used it or the tractor to carry out work on the farm for the benefit of her or the defendant, or at all.
- Examination of contemporaneous emails does not support the evidence of Lynne King. They do not support her evidence that she did not know the plaintiff was likely to be performing work on the property when she was away on the occasion he was injured, and had regularly done so in the past.
- It was common ground that the plaintiff had been unemployed after he and his family moved to the property in about April 2013. Understandably, cash was somewhat tight so he came to an arrangement with Lynne King that their weekly rental of $300 would be reduced by $50 in exchange for his performing some work on the property. It seems common ground that such a reduction was credited to the plaintiff on only five occasions. Examination of a rental statement produced by the defendant in respect of the plaintiff’s rental of the cottage, (see page 139 of Exhibit 1, the trial bundle) shows a discount of $50 on 4 June and two discounts of $100 on 13 August and 3 September. Rental was paid fortnightly and these latter two discounts appear to have covered work performed in August 2013.
- In addition, there was some relatively minor damage to the rental house caused by the fire that I earlier referred to. It was agreed that the plaintiff would perform work to repay the cost of purchasing some timber flooring and a window frame damaged in the fire. The total cost was relatively small, in the order of $300 to $500. It seems that the arrangement for repayment of this sum was a relatively loose one, and that there was no specific agreement as to the numbers of hours of work that would be performed, or the hourly rate for any work that was performed. It is clear however, that the plaintiff did undertake some work to pay off this cost, consistent with the email trail being part of Exhibit 1.
- On 30 July 2013, after the plaintiff’s wife had sent photos to Ms King of things she said a farmhand employed on the farm, Joshua Leafe, had done to the property. Lynne King sent an email in reply in these terms:
“Would Andrew be able to put the stuff back in the shed out of the rain please. Colin has no idea why he did this and it was against his instructions. How many bales are stored in the shed. As for the trees if he wants to cut them up and store them as they are excellent firewood…”
- In response Ms King was told by the McHughs on 30 July that “there is maybe 3 bales in the shed”. I interpose that the plaintiff and his wife, Cerice, shared a common email. Sometimes it is obvious who sent an email, and on other occasions I will jut refer to the “McHughs” sending an email. On 1 August the plaintiff’s wife again emailed the defendant and said:
“Andrew has grabbed the boys and they are cleaning up around the property.”
- Once again the McHughs emailed Lynne King on 2 August in these terms:
“All fine on the farm. Had the boys out yesterday from 8.30 until lunch cutting up wood and moving it. We then went down the front gate and cleaned up the mess there and trimmed a couple of citrus trees. 1 of your cows is REALLY thin and I’m sure it’s because the smaller cow is hanging off her. The cows are also covered in ticks and some have sores on them so may need to be sprayed or dipped when you get back.”
- Later that day Lynne King emailed in response confirming she will “have to separate the cows and calves”. On 3 August, the McHughs emailed Lynne King that “we had a ball yesterday and separated the babies from the big cows. They broke some of the barbed wire getting them in but that’s easy fixed.”
- Shortly after, Lynne King responded “many thanks”.
- She then shortly afterwards again emailed the plaintiff or his wife in these terms:
“Forgot to ask where are each herd now and are the calves where someone can keep an eye on them and the dingos.”
- The McHughs responded; “the babies are locked out the front of our place and the big cows won’t leave the fence.” Shortly thereafter, and again on 3 August, Ms King responded:
“Can you move the big ones over the paddock outside your kitchen window looking up to our place? Then move them slowly over through the paddock and into the paddock at the back where all the dams are. There is a gate there and then you can move the calves into the front paddock of your farm yard between your gate and the front gate that the calves and cows will then have a paddock between them both. If it doesn’t make sense or is too hard I will take care of it when I get back.”
- The McHughs responded:
“That’s where they all are. The calves out the front paddock and big ones are at my kitchen window. The gates are all closed so they can’t mix.”
- Ms King then said:
“Right, so if you push the cows through the back into the dams paddock they will be really separated and unable to reach calves.”
- There was then a series of emails concerning whether or not there was a gate on that fence line to enable this to be achieved. The details of those emails appear to me of limited assistance but do suggest Lynne King understood that the plaintiff was involved in management of the cattle on the property while Lynne King was away.
- The plaintiff said, and I accept that he and others employed by the defendant on the property habitually used the quad bikes to move and manage cattle. So too were they used to transport equipment or the smaller, rectangular hay bales.
- On 5 August, the McHughs again emailed Lynne King in the following terms:
“When we got home yesterday all of the babies had been put back with the big ones and gates all closed and no fences broken. When we woke up this morning the front gate was open and pushed right back (jammed) and the cows were out the front – I’m talking about the very front gate off [sic] your property. Someone HAS to be doing this and the boys said it wasn’t them. Have you thought about getting grates at the gates to stop cows coming in and out?”
- On 10 August, Lynne King again sent an email advising that they were “leaving this morning for Brisbane so could you please put the animals away this afternoon and close the gate to the house paddock?”
- The plaintiff’s wife responded with an email detailing a number of problems she had found with the rental property. There were subsequently a number of emails about that. Ultimately, the plaintiff’s wife emailed Lynne King late in the morning of 14 August apologising for “sounding so rude in my emails”. At 11.46am on 14 August, Lynne King responded accepting that apology. She then said:
“I would like to get a bale of hay and try separating the cows if we know where we can put them and which fences work. It is fun but only if Andrew is fine with this.”
- Clearly that was again a request to perform some work with the cattle on the property. In my view, the reference to getting a bale of hay and separating the cows was, as Ms King knew, very likely to involve the plaintiff in using either a quad bike or tractor to do so. In my view, it was unrealistic to think that he might have taken a bale of hay and walked to wherever it was that the cows were in order to separate them from the calves. In my view, a bale of hay would be very heavy to carry the possible distance associated with completing that task.
- On the following day, Lynne King again emailed the plaintiff’s wife in these terms:
“Can you ask Andrew to ring me and not to use the tractor as I think Josh has pulled it apart and left half of it out.”
- The plaintiff’s wife responded “it was running ok yesterday”. Quite clearly these two emails suggest Lynne King knew the plaintiff had used, and was likely to use, the tractor in carrying out tasks on the property. I find she readily accepted that situation.
- On 20 August, Lynne King again wrote “Can you ask Andrew to send me a message about how to reverse the other bike. I could it [sic] once but have forgotten”.
- That message necessarily assumes the plaintiff had knowledge of the function of the “other” quad bike, belonging to her partner, Colin. It is unlikely she would have asked the plaintiff this question if he had only rarely used the bike as she said in her evidence. In my view, that was the normal practice on the property and it is much more consistent with her knowing that he had used the quad bike significantly more frequently.
- On the same day, the plaintiff’s wife was again emailed by Ms King (page 572 Exhibit 1) who said “Can you ask Andrew when he is going to put that last big bale out for the cows… If there are two they can both go out.”
- The reference to “big bale” is very clearly a reference to large round bales which were used on the farm, in addition to smaller rectangular bales. They are very heavy. They could not be put out – indeed could not even be moved – by a man alone. That was confirmed in evidence by the plaintiff’s wife when I asked her that question. Necessarily, such work would involve the use of the tractor. The plaintiff described using the three in one bucket on the tractor to grab hold of the bale and to then move it. I have no doubt that this is what was contemplated by Lynne King when she sent that email. That is, of course, inconsistent with her sworn evidence before me that she thought he would just push it outside.
- The plaintiff’s wife responded almost immediately, “He said he can put them out for you tomorrow if you like”.
- In response, the defendant sent a further email “the hay would be great being put out. Can you tell Andrew that there is molasses here if he wishes and a new bag of honey oats so they could have a bucket of that with the hay and molasses as it is cold out here tonight.”
- This suggests that at that time, not only was Lynne King requesting that the plaintiff assist her in management of the farm, but that in fact, she was herself at the property at that time. This is confirmed by a request she made earlier on that day, asking the plaintiff’s wife to bring her a cherry ripe. Having regard to the evidence about the topography of the farm, I think it is likely (but not inevitable of course) that Lynne King would have seen the plaintiff putting out the large bales of hay, and then hay with molasses and/or honey oats and so would have known he was using the quad bike and/or tractor (or both) to perform such duties. Her house was in a significantly elevated position overlooking much of the property.
- Late in August, the defendant employed a new farm hand, Jason Brown. He gave evidence before me. The email trail shows that on 22 August, Lynne King sent an email to the McHughs in these terms:
“I would like it if you can come over Monday or we drop in so you can met (sic) him and say hello and especially to explain what cows are where and whether it is a good thing how they are at present. I like them in a herd so you know they have some safety. I don’t want to [sic] the same grief as I had with Jim.”
- Jim was an earlier farm hand whose employment had lasted only a very short time. Again, this email clearly shows that Ms King knew of and relied upon, the plaintiff’s assistance in managing the cattle.
- The subject accident was on 30 August. Shortly prior to that, Lynne King and her partner Colin had again left the farm. On 29 August, Ms King wrote to the McHughs in these terms:
“Can u keep me posted on what is being born at the farm and how that cow is going and whether I should ask Helen’s partner Ross to have a look at it for me. That is preferably before it gets too sick to save.”
- On that same day, the plaintiff’s wife responded indicating she had spoken to a man about what to do to fatten the cows up. There was some detail about pastures, about use of a mineral lick and about irrigation. At 9.10pm on 29 August, the day before the accident, the plaintiff’s wife wrote a lengthy email indicating what had been done on the farm that day. She made reference to care of Lynne King’s poultry. She then said:
“Andy and I then went back down and started looking at the pump and sprinklers and dragged it all over the place trying to figure out where all the connections were and finally took the pump and connections up the back more to where there is more water and went to start it but the pump was seized up, I’m guessing it’s from being underwater in the floods. We then pulled the connections off and took the pump to your house so when Jason gets home he can look at it. It’s about 4.00pm by now and we decided to try and get the calves over the other side again and at 5.30 we head home happy that we have the calf and the skinny cow at least separated from all the others. They were in the middle paddock and would not head through your top gate because the others were along the fence near our front gate calling them and they were running back down to them so I said to Andrew that we can round up the big cows and get them away from the fence and out the back of the chick pen at our place and close the fence again and that was a good idea… for 10 minutes, we walked inside put rice in microwave and filled kitchen sink up and what do I see walking through horse paddock… THE FRIGGEN COWS WE SPENT OVER AN HOUR TRYING TO KEEP AWAY FROM CALVES walking straight back past us and heading up the hill to look for the others. Some dim wit opened the horse paddock side gate over the past few days and didn’t shut it. Grrrrr I was cranky so Andy went flying out after them (5.45pm) and I finished heating dinner for kids.”
- Shortly after, Colin responded to the plaintiff’s wife concerning the pumps. He indicated that the pump should not be seized but said nothing about cattle.
- It is in my view clear from a consideration of these emails that Lynne King, on behalf of the defendant, which owned the land and livestock, had frequently requested the plaintiff and his wife to assist in the managing of the property. It is also clear to me that she knew that in doing so the plaintiff was likely to use the quad bikes and tractor to carry out such tasks. The quad bikes were used frequently on the property to move and manage cattle and items – such as the pump and straw bales. The plaintiff’s use of it and the tractor, were, I find, consistent with usual practice on the farm and was known to Ms King. She approved of his doing so. It advantaged her, and the defendant.
- Only when the plaintiff was injured did the attitude of Ms King to his use of the quad bike change.
- The defendant’s counsel submitted that the plaintiff’s allegation that he was injured when he put out his right leg to stabilise the quad bike as it leaned alarmingly when the right front wheel moved onto the steep cut section of the earth caused by the cut referred to previously is false. He submitted that there was no record of such an assertion until the Personal Injuries Proceeding Act (PIPA) notice, some seven months after the incident.
- The defendant’s written submission (para 5) refers to the contents of the Queensland Ambulance Service (QAS) report of 30 August 2018 (see p 334 of Exhibit 1). I have referred to it already in relation to my finding about the speed of the quad bike at the time the plaintiff was injured. It is true the report makes no mention of a cut slope, only of riding the bike “at approx. 10 kph in circles mustering cattle when (it) tipped onto two wheels (R) reflex action put his R leg out to stabilise”.
- Reference is also made by counsel to hospital notes, also of 30 August and subsequently which record variously–
- (i)“fall off quad bike”;
- (ii)“quads bike injury – lost balance and leaned onto R leg”
- (iii)“lost balance and leaned into R side with weight of bike causing valgus impacted injury”.
- The defendant’s counsel submitted I should disbelieve the plaintiff’s evidence that a ditch was in any way involved, relying also on the fact that Joshua Leafe had said in evidence that the plaintiff described the quad as tipping or rolling as he turned left but did not mention a ditch.
- I do not think the omission to have specifically referred to a ditch, or at least to it having not been recorded in the QAS report or in hospital records is of great significance. Generally the plaintiff’s description of the incident in those documents is consistent with his evidence before me, although it is true there is no reference to the ditch. The plaintiff might well have omitted reference to the ditch in then describing the incident, which was for the purposes of the medical practitioners getting an understanding of how the injury occurred. It was not described with a view to litigation. I do not think the omission to have mentioned the ditch is a factor significantly impacting on the plaintiff’s credit.
- I also do not think the failure of Joshua Leafe to have mentioned it in his evidence is of importance. My own experience (in consideration of, for example, preliminary complaint evidence in criminal trials) is that very often people, when recounting details of what they have been told, unknowingly omit reference to a particular detail. I think it possible either that the plaintiff did mention the ditch to Joshua Leafe and Joshua Leafe has forgotten it or that the plaintiff did not mention it. In any case any such omission is in my view not critical to an assessment of the plaintiff’s credit.
- I might also add that the question of whether or not the incident involved the ditch is in any case in my view not critical. The fact is, as I find, that whilst he was mustering cattle and turned into his left that the vehicle started to over balance to the right. In order to stop it from doing so the plaintiff put out his right leg taking the weight of the machine, or much of it, causing the injury he complains of. Whether the vehicle’s right front wheel had dropped over the steep cut out section or started to overturn because of the slope, speed and radius of the turn is not critical to that determination. Whilst I accept his evidence that it did occur as the plaintiff detailed, the evidence of Mr Kahler makes it clear that it could have occurred even without the involvement of the ditch.
- In the circumstances I accept the plaintiff’s evidence that the vehicle did commence to overturn when the right front wheel moved onto the 40 degree slope of the cut section of the earth. I accept the plaintiff’s evidence that the accident happened generally as he described except that I find he was driving at 10 kph as he told QAS officers.
- The ground in the area was uneven. The process of mustering cattle is one which can distract a person engaged in that activity from the task of driving, including carefully assessing the slope of the land and the need to turn carefully. The plaintiff however had prior experience using quad bikes on a rural property, where he grew up near Goondiwindi. The plaintiff’s counsel’s written submissions accept that the plaintiff was an experienced quad bike rider. He must have known of the need to continually keep an eye on the contour and unevenness of the land and that if he did not he ran the risk of overturning. He must also have known that to turn along a contour as he did, when driving downhill, was a task which required care.
- The dangers of such a vehicle are addressed in the joint report of Richard Kahler and his associate, Ricky Blom. The report was largely unchallenged – certainly assertions about the propensity of quad bikes to overturn was unchallenged – and no contrary expert evidence was called.
- The report says that a high percentage of All Terrain Vehicle (ATV) accidents occur at low speed, under 25 kph, and involve terrain irregularity (p 636 l 25 ff of Exhibit 1). Mr Kahler notes these statistics involve the same pattern as Australian tractor fatalities which he himself investigated (p 637 l 1). According to Newman’s Survey of ATV Injuries (an American study), 24 per cent of such accidents involve the ATV rolling sideways. Dr Kahler concludes that “quad bikes are a high risk machine requiring management if used on a rural property” (p 639, l 30; p 640, l 32). I accept that is so. In this case, no such assessment of any kind was undertaken by the defendant.
- In their analysis of the incident the authors list a number of essential and contributory factors to this incident. They include the nature of the terrain, the fact the driver’s attention was divided between driving of the vehicle and mustering cattle and the type of vehicle being used. They refer also to the fact that “no risk assessments, warnings or safety meanings” had been conducted. There was no evidence at all that Ms King had turned her mind to such matters, even though, on her own admission, she employed a number of people on the property including inexperienced WOOFERS. I accept that each of these factors contributed to the accident.
- The authors of the reports also say that the plaintiff’s “expectation that this terrain had no embankment” was a factor. I do not accept that he had such an expectation. I do not accept he did not have knowledge of the embankment. The embankment, even if, as the plaintiff said, was not easily visible to him at the time he performed the left hand turn he was undertaking when injured, was a feature that he well knew of. He ought to have kept that in the forefront of his mind. He had, as I have said, significant experience in driving such vehicles. It is clearly visible from the roadway. It was only a very short distance from the house where he had lived for some months. The property was not covered in long grass but had what I would refer to as a “park” like appearance. The embankment was not unexpected as Mr Kahler asserted. Not only was it clearly known by the plaintiff but there are a significant number of other sudden changes of terrain shown in photos of the area. The embankment in question was only one of them.
- The plaintiff, I find, knew of the embankment and knew of the risk that sudden changes of the slope of land posed to a quad bike user. He was as I have said earlier familiar with such bikes having used them from a young age on the property where he grew up. I do not accept that any quad bike user with that experience on a rural property, and conscious of the slope and of the frequent changes in level on the property would not have been aware of the need to exercise caution when turning along a contour as he did. Every such turn must be executed with care, or avoided.
- I find that as he was mustering the cattle he allowed his attention to driving to be unduly distracted by the task of mustering, and drove too quickly. As a consequence, while undertaking a sweeping left hand turn on the vehicle, and when driving at about 10 kph the right hand front wheel dropped down the embankment, causing the vehicle to tip alarmingly to its right. Apprehending that it might turn over, and in circumstances where there was no impediment to his doing so, the plaintiff, as a reflex action, thrust out his right leg onto the ground. As a result he took significant weight through it – sufficient to cause the injury of which he complains. His actions did however prevent the vehicle from overturning.
- Reflection on the incident leads to a conclusion that it could have been prevented if any or all of a number of things had occurred. Some of those relate to acts and omissions of Ms King, as agent of the defendant, and others to the acts or omissions of the plaintiff himself.
- If he had remained conscious of the cut, or driven at a slower speed, he would very probably have seen the sudden change in slope and avoided the incident. So too if he had been specifically instructed about the danger of such an incident he, being more aware of the risk, would have driven more slowly and more carefully and avoided being distracted from the task he was undertaking. He would thus have avoided the incident. I shall refer to this issue again later. I accept that such actions might have made performance of the task of mustering the cattle a little slower but the evidence does not suggest the task was particularly critical or difficult or that to perform it more slowly would have caused any ongoing difficulties. The mob of cattle was a small one.
- So too, if the machine was fitted with rollover protection and a safety belt, the defendant would not have faced the need to put out his leg as he did to protect himself from a rollover accident. Additionally, a device such as netting to preclude such an action would, in conjunction with rollover protection and a seatbelt, have ensured his safety. The consequences of a low speed rollover on what was generally a 14 degree slope when protected by roll bars, a seatbelt and netting would be minimal. The plaintiff would, on balance, have suffered no significant injury in such an event.
- The provision of a two seat utility vehicle was a safe and practical alternative to a quad bike. Whilst the new vehicle of that kind is more expensive than a quad bike I accept Mr Kahler’s evidence that a suitable second-hand vehicle could be acquired at a cost comparable to a quad bike, and is far more stable.
- My finding that the plaintiff was authorised by the defendant, through Ms King, to use the quad bike to muster cattle disposes of the defendant’s contention that he has no right to recover damages pursuant to s. 45 of the Civil Liability Act.
- The defendant contends that if, contrary to his primary submissions, the plaintiff was entitled to use the quad bike that no more than a gratuitous bailment was created. It was submitted that in any case the bike was not defective, but a common piece of farm equipment and safe having regard to the plaintiff’s experience in using such bikes.
- I have found the plaintiff was here performing work for the defendant’s benefit and at Ms King’s request, and that she authorised him to use the quad bike. I also find that it was not – without a roll bar, seatbelt and netting as Mr Kahler suggested – suitable for the purpose of mustering cattle on the Amamoor property.
- In Derbyshire Building Co Pty Ltd v Becker (1962) 107 CLR 133 the defendant was found to have a duty to ensure that an electric saw, provided to any independent contractor engaged to perform work on a fence on the defendant’s property, was obliged to ensure it was fit for the required purpose. So too here.
- In such circumstances I find the defendant breached the obligation it owed as bailor of the quad bike.
- In my view however the circumstances are better characterised as giving rise to a duty akin to that of an employer and employee. The plaintiff did from time to time do work for some relatively minor payment, reduction in rent (totalling $250) and repayment for materials used to repair the cottage after a small fine. The plaintiff however accepts that the work on 30 August was not for remuneration (see 7(j) of written submissions).
- The defendant’s duty akin to that of an employer arises from the provision of the quad bike to carry out tasks the plaintiff was performing for the benefit of the defendant, even though provided gratuitously, because of the relationship between the parties. This relationship arises in circumstances where:
- The defendant conducted commercial grazing operations on the property, which it owned;
- The defendant employed farm hands and engaged young persons described in the evidence as woofers who performed work on the property, largely I gather for board and lodging;
- The plaintiff was employed by the defendant to perform some limited paid employment, sometimes working with paid employees or woofers, and encouraged and requested him to otherwise assist in the defendant’s commercial enterprise;
- When assisting allowed the plaintiff to utilise equipment provided by the defendant including chainsaws, a tractor and quad bikes;
- Had power to designate how the quad bikes and other equipment should be used and how it could be adapted so as to make it fit for the required purpose;
- Had a commercial interest in the activities of the plaintiff at the time he was injured, and was commercially advantaged by the plaintiff’s labours.
- In Rivett Aboricultural & Waste Equipment Hire Pty Ltd v Evans  SASC 108 the South Australian full court considered a case where a volunteer worker was injured when his left hand was caught in a wood chipper provided for his use. Gray J, with whom Doyle CJ and Duggan J agreed said at para 94 and following:
“94. There was proximity in the present case. WMC derived a direct commercial benefit from the mulching project by using the Green Machine’s activities to promote WMC as an environmentally conscious corporation. There was a relevant proximity.
- WMC owned the wood chipper; owned and controlled the premises at which it operated; had power to control who used the wood chipper; had a commercial interest in the activities of the Green Machine; controlled its employees who oversaw the Green Machine and was commercially advantaged by the unpaid labour of the plaintiffs and. Both plaintiffs were vulnerable. This meant that ensuring safe operation was within the control of WMC. Proximity and neighbourhood existed. The wood chipper was obviously dangerous – there was a foreseeable risk of injury. The application of the salient features test leads to the conclusion that a duty of care was owed.”
- In my view, almost identical consideration arise in the circumstances of this case.
- In circumstances where as I have found the quad bike was inadequate for use in mustering on the property, there was a foreseeable risk of injury which the defendant did nothing to adequately control. It did not exercise reasonable care to make the bike safe to ensure the plaintiff was able to undertake the task of safely mustering the cattle.
- Ms King accepted in her evidence that quad bikes pose a risk of injury when used on a property such as the Amamoor property and understood that bikes might be taken off road when being used to muster cattle on the property.
- It is next necessary to turn to a number of other defences raised by the defendant, in reliance on provisions of the Civil Liability Act.
- I reject the contention that ss. 13-16 of that Act preclude recovery. Those sections relevantly provide:
“13 Meaning of an obvious risk
- (1)For this division, an “obvious risk” to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
- (2)Obvious risksinclude risks that are patent or a matter of common knowledge.
- (3)A risk of something occurring can be anobvious riskeven though it has a low probability of occurring.
- (4)A risk can be an obvious riskeven if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
- (5)To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious riskif the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is anobvious risk.
14 Persons suffering harm presumed to be aware of obvious risks
- (1)If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.
- (2)For this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
15 No proactive duty to warn of obvious risk
- (1)A person (“defendant”) does not owe a duty to another person ("plaintiff”) to warn of an obvious risk to the plaintiff.
- (2)Subsection (1)does not apply if—
- the plaintiff has requested advice or information about the risk from the defendant; or
- the defendant is required by a written law to warn the plaintiff of the risk; or
- the defendant is a professional, other than a doctor, and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.
- (3)Subsection(2)does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
- (4)In this section – “a professional” has the same meaning as it has in division 5.
16 No liability for materialisation of inherent risk
- (1)A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
- (2)An inherent risk is a risk of something occurring that can not be avoided by the exercise of reasonable care and skill.
- (3)This section does not operate to exclude liability in connection with a duty to warn of a risk.”
- First it is clear the risk of a quad bike overturning and injuring the rider is not a risk that “cannot be avoided by the exercise of reasonable care and skill”. It is not therefore an “inherent risk” pursuant to s. 16 of the Act.
- In my view the risk of a quad bike overturning when being used to muster cattle on a rural property such as the defendant’s is properly classified as an “obvious risk”. In my view any reasonable rider in the position of the plaintiff at the time of the incident would have been aware of the risk of overturning. Even if the risk was objectively low, the risk was a real one especially if, as here, the plaintiff drove at about 10 kilometres per hour and turned along the contour of a 14 degree slope. The risk was compounded by the presence of variations in the contour and terrain and demanded careful attention. Any person who did not drive slowly, with care and concentration faced the obvious risk of overturning when turning along contours as the plaintiff did.
- The plaintiff has not satisfied me that, on balance, he was not aware of that risk. He was a man with experience of quad bikes having grown up with them on a rural property at Goondiwindi where he lived with his parents. The consequence of such a finding is that the defendant did not owe a duty to the plaintiff to warn him of that risk of overturning. My finding therefore set out in  hereof that if the defendant had done so the plaintiff would have driven more carefully and so avoided the incident is of no effect.
- That of course does not discharge the defendant from its obligations to have provided the plaintiff with safe equipment or otherwise have taken steps to avoid the accident. The only effect of s. 15 is to obviate the duty to warn.
- A further ground relied on by the defendant is concerned with dangerous recreational activities in s. 17/19 of the CLA. Section 18 defines “dangerous recreational activity” as “an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person”. My finding that the plaintiff was at the time of this subject accident engaged in activities for the purpose of advancing the financial interest of the defendant – effectively at the request of Ms King – disposes of the defence under s. 19 of the Act.
- The language of “recreational activity” in s. 18 does not encompass activities whose purpose, as here, was to advance the commercial interests of the defendant. The fact such activities might be pleasurable to the plaintiff is insufficient to bring the work the plaintiff was performing for the defendant into the cold embrace of the section.
- The question of contributory negligence remains. The defendant submits that, relying on s. 24 of the Act, a finding of 100 per cent contributory negligence should be made. That section provides:
“24 Contributory negligence can defeat claim
In deciding the extent of a reduction in damages by reason of contributory negligence, acourtmay decide a reduction of 100% if the courtconsiders it just and equitable to do so, with the result that the claim for damages is defeated.”
- I accept that the plaintiff:
- (i)Was familiar with the area and knew of the “ditch”;
- (ii)Was familiar with the quad bike and had experience of using them on the farm where he grew up;
- (iii)Drove it down a grassed 14 degree slope and then commenced to turn left along the contour;
- (iv)Drove it at about 10 kilometres per hour and was distracted by the work so as not to see the cut section.
- He ought not have been so distracted or driven at that speed when turning on a 14 degree slope.
- Nevertheless the defendant:
- Had provided the quad bike for use by the plaintiff to assist the defendant in its commercial operations;
- Through its director, Ms King, knew or ought have known of the dangers associated with quad bike usage on the Amamoor property;
- Most importantly, failed to provide for the plaintiff’s safety by means of –
- (a)Rollover protection, a seatbelt and protection such as by netting which would have provided a protective envelope to ensure the plaintiff’s leg could not extend beyond that area of protection or
- (b)Providing an alternative safe vehicle such as a two seat utility figure.
- Failed to conduct a safety audit of any kind, which would have identified such risks and of a practical means of overcoming such risk.
- A further ground on which the plaintiff relies is the failure of the defendant to have either altered the terrain on the property so as to make it safe for quad bike use or to fence off the area adjacent to the ditch so that bikes could not go there.
- I do not accept that the plaintiff needed to do so. The whole area is replete with natural and man-made variations in the terrain. That is both common to all natural bushland settings, but also an attractive feature of such properties. It would not be possible, or practical, to provide protective barriers around all such features.
- A significant part of the beauty of the property is its naturally occurring variation in terrain. To even out the terrain to make it suitable for quad bikes would, in my assessment, be an unreasonable obligation. Far better to make the quad bikes safe by the safety devices I have identified. Such steps would, I conclude, have obviated the risk of the plaintiff suffering injury as he did.
- Employees, or persons providing services such as the plaintiff was, are of course prone to be distracted. The defendant must have known this.
- The plaintiff’s own departure from the standard expected of a quad bike rider was in circumstances where he was nevertheless distracted from his driving by the task he was performing for the defendant’s commercial advantage. Employees, or persons providing services such as the plaintiff was, are of course prone to be distracted. The defendant must have known this. Whilst his negligence was significant, it was significantly lesser in degree than the defendant’s breach in providing what Dr Kahler described as dangerous vehicles (see for example T1-82 l 31) regularly involved in fatal incidents even with experienced drivers.
- In the circumstances I find the plaintiff liable for contributory negligence to the extent of 20 per cent and give judgment for the plaintiff in the sum of $400,000.00.
- I will hear submissions as to costs.
- Published Case Name:
Andrew Duncan McHugh v BKE Pty Ltd as trustee for the B W King Family Trust
- Shortened Case Name:
McHugh v BKE Pty Ltd
 QDC 254
13 Dec 2018