A D & S M McLean Pty Ltd v Meech & Anor [2005] VSCA 305

2 This is an appeal from a judgment for damages for personal injuries which was given in favour of the first respondent on 4 March 2004 following a trial before judge and jury in the County Court at Melbourne.

3 At relevant times the appellant was the lessee and occupier of a property known as St Anne's Winery which abuts the Western Highway at Myrniong, Victoria. From time to time the second respondent agisted her horse "Bob" on St Anne's Winery in an area of the property known as "the bull paddocks". On 15 February 1999 the first respondent suffered injuries when Bob escaped from the property onto the Western Highway near to the northern boundary of the property. Bob there collided with a car being driven along the highway causing him in turn to collide with another car being driven by the first respondent. The jury found that the accident was due to negligence on the part of the appellant and the second respondent in allowing Bob to escape from the property. They awarded the first respondent damages of $326,950.89 for pain and suffering and $437,034.99 for pecuniary loss.

4 In the way in which the appeal has been argued, the principal issue is whether the judge erred in directing the jury that the appellant as the occupier of St Anne's Winery owed the first respondent a non-delegable duty to take care to prevent Bob's escape. There is also an issue as to the apportionment of liability as between the appellant and the second respondent.

Non-delegable duty

5 In the course of discussion between the trial judge and counsel before the judge charged the jury, the judge stated that he took the decision of the New South Wales Court of Appeal in Gregory's Properties v Muir [1] as authority that an occupier of property on which animals are kept is under a non-delegable duty to take reasonable care to see that the animals are contained within the property. Counsel who then appeared for the appellant agreed:

"HIS HONOUR:... The authorities say that the occupier of property on which animals reside is under a non-delegable duty to take reasonable care to see that they're contained within the property.

[COUNSEL]: Yes.

HIS HONOUR: The Court of Appeal in New South Wales, Kirby, J. presiding, Gregory's (Properties) Pty Ltd v Muir, it is reported, amongst other places (1993) Australian Torts Reports 81-255.

[COUNSEL]: I accept that proposition, your Honour, I don't resile from it or seek to in any way argue that."[2]

6 Understandably, therefore, the judge thereafter charged the jury as follows:

"The [appellant], as occupier of the property on which horses were kept, has a non-delegable duty to take reasonable care to ensure that the fences were in a condition to contain the horses within the property. That means that [the appellant], cannot say, 'Samantha [the second respondent], they are your horses, you see they don't get out.' Nor could it delegate that duty to Angus or even to Genetics.[3] Rather, the company, and of course the company can only act through its servant[s] and agents, had a duty to take reasonable care to ensure that horses kept on the property did not escape from it by ensuring that the fences and gates were in a condition adequate to contain the horses on the property."

7 As it now appears, however, Gregory's Properties was not concerned with the issue of non-delegable duty. It was an appeal concerning the standard of care required of an occupier erecting fences to prevent the escape of stock, and it was decided on the basis of the conventional test in Wyong Shire Council v Shirt.[4] Kirby, P., who delivered the leading judgment, said:

"...The standard of care which the law enforces is not an absolute one. It is that which may be expected of the reasonable person. In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47. Mason J explained what the law requires in these familiar terms: 'The perception of the reasonable man's response calls for 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. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position'. The Court, determining a complaint of negligence on the part of the property owner, will of necessity consider the facts of the particular case before it. See Thom[p]son v Nix [1976] WAR 141 (SC) 147. But, also of necessity, it will test the suggested requirements of reasonable care by considering the implications of those requirements, if adopted, for persons other than the parties before the Court where those persons are in an analogous position and would be held liable in like circumstances by the application of the same standard as propounded for the instant case."[5]

8 It seems that the explanation for the trial judge's reference to Gregory's Properties is that his Honour had in mind the judgment of the New South Wales Court of Appeal in Simpson v Blanch,[6] in which Gregory's Properties was considered and in which Beazley, J.A., with whom Mason, P. and Handley, J.A. agreed, held that an occupier's duty is non-delegable.

9 Beazley, J.A. reasoned by reference to the observations of Mason, J. in Kondis v State Transport Authority,[7] and the joint judgment of Mason, Deane and Dawson, JJ. in Burnie Port Authority v General Jones Pty Ltd,[8] that the criteria of a non-delegable duty of care (in relation to activities carried out on land) are that the party by whom the duty is owed have control over the land, and in that sense the activities, and that the party to whom the duty is owed have no control over the land, so that that party is in a vulnerable position vis-à-vis the party by whom the duty is owed in relation to those activities. Her Honour also considered that users of a highway adjacent to the land in question were in such a vulnerable position vis-à-vis the occupier of the land in relation to the keeping of horses on the land (inasmuch as they had no control over nor any knowledge of the condition of the fences). It followed, as her Honour held, that the occupier of land owed a non-delegable duty to highway users to take care to prevent the escape of the horses onto the highway. As her Honour put it:

"Examining the matter from the perspective of Blanch/Anderson, as users of the highway, they were in a vulnerable position vis-a-vis Simpson. They had no control over nor any knowledge of the conditions of the fences. On the other hand, Simpson [the occupier] was responsible for his own property. He had control over it. In my opinion, he had, therefore, a non-delegable duty of care to the users of the highway. That required him to ensure that the fences were in a condition adequate to contain the horses on the property.

The existence of a non-delegable duty of care answers the second basis upon which Simpson challenged the finding of liability. The duty being non-delegable, it would not have been sufficient for him to have made an inquiry of Carroll [the second respondent]." [9]

10 Counsel who now appears for the appellant contends that Simpson v Blanch was wrongly decided. He submits that Beazley, J.A. misunderstood Burnie Port Authority v Jones, and Kondis v State Rail Authority, and so erred in treating vulnerability and control as the criteria of non-delegable duty. He says it is apparent from Burnie Port Authority v Jones that the principal consideration is the relationship between plaintiff and defendant. He also emphasises the observations of Gummow and Hayne, JJ. in Lepore[10] that the categories of cases in which a non-delegable duty has been recognised involve:

"...a relationship in which the person owing the duty either has the care, supervision or control of the other person or has assumed a particular responsibility for the safety of that person or that person's property. It is not suggested, however, that all relationships which display these characteristics necessarily import a non-delegable duty."

As the appellant would have it, there is no relationship between the occupier of land and passing motorists, or at least none which involves the occupier in the care, supervision or control of passing motorists, and in counsel's submission it is plain that the occupier of land abutting a highway does not assume a particular responsibility for the safety of the motorists passing along the highway.

11 Counsel for the appellant further relies on Crimmins v Stevedoring Industry Finance Committee[11] as establishing that the identification of a duty in a novel case is to be conducted principally on the basis of whether the case fits within an established category of case, and he relies upon Lepore and the later decision in Jones v Bartlett[12] as indications that the categories of non-delegable duty cases are not lightly to be extended. In his submission the analyses of non-delegable duty undertaken in Lepore and in Jones v Bartlett show that the facts of this case are well outside the established categories of non-delegable duty and well outside the range of any acceptable extension of the established categories.

12 I do not find those submissions persuasive. With respect, it appears to me that Beazley, J.A. well understood the effect of the High Court's reasoning in Kondis v State Rail Authority and Burnie Port Authority v Jones and that her Honour correctly applied the principles in those cases to the facts of the case before her. I also do not accept that a case such as this is much if at all outside the established categories of cases of non-delegable duty. To the contrary, it seems to me that there is nothing particularly new in the idea that the occupier of real property may be held to owe a non-delegable duty to persons beyond the boundaries of the property to guard against damage being caused by activities carried on within the property. In principle and as a matter of authority it has long been the case.

13 Before the development of the modern law of negligence, an occupier of land was reckoned to be liable for nuisance caused by activities which he permitted others to conduct upon his land. As Littledale, J. put it in Laugher v Pointer:[13]

"And the rule of law may be that in all cases where a man is in possession of a fixed property [scil. real property] he must take care that his property is so used and managed that other persons are not injured, and that, whether his property be managed by his own immediate servants or by contractors or their servants. The injuries done upon land or buildings are in the nature of nuisances, for which the occupier ought to be chargeable when occasioned by any acts of persons whom he brings upon the premises. The use of the premises is confined by the law to himself, and he should take care not to bring persons there who do any mischief."[14]

So, in White v Jameson[15] the occupier of land was held liable for nuisance caused by heat and flame escaping from a licensee's operation on the land of a brick kiln. Similarly, in Tarry v Ashton,[16] Blackburn, J. held the occupier of a property liable in nuisance for injuries caused to a pedestrian walking on a pathway abutting the property when a lamp fell from the property due to negligence on the part of the gas fitter retained by the occupier to repair the lamp. And in Attorney General v Stone[17] and Page Motors v Epsom B.C.[18] the occupiers of property were held liable without negligence for nuisance cause by gypsies whom they had allowed to remain on their lands.

14 There is too a parallel or perhaps derivative line of authority, which on one view of the matter[19] originated with Pickard v Smith [20] but which according to another view derived from earlier cases dealing with duties imposed by statutes,[21] that a principal is liable for the acts of an independent contractor in cases in which the contractor is instructed with the performance of a duty incumbent upon the principal and neglects its fulfilment whereby an injury is occasioned. It has been said that the rule is too widely stated. It is and always was clear that a principal is not liable in every case where he engages a contractor to undertake the performance of a duty which the principal owes to another. Laugher v Pointer and Quarman v Burnett are ancient examples of situations in which it was held that the principal may be relieved of responsibility and Stoneman v Lyons[22] and Northern Sandblasting v Harris[23] are more modern demonstrations of the same point. Nevertheless, there is an innominate class of cases in which an employer will be held liable for the negligence of an independent contractor engaged to perform what is conceived to be a duty owed by the employer to another. As Lindley, L.J. explained in Hardaker v Idle District Council: [24]

"It is not always easy to avoid mistakes in applying this, or indeed any other, principle to difficult cases, as is shewn by Gray v Pullen [25] and Butler v Hunter.[26] The latter case is inconsistent with Bower v Peate [27] and Quarman v Burnett,[28] the well-known job-master's case. I will take the law, however, as it was laid down by Lord Blackburn in Dalton v Angus.[29] Lord Blackburn there said: 'Ever since Quarman v Burnett it has been considered settled law that one employing another is not liable for his collateral negligence, unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty, and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it...' Lord Blackburn in this passage contrasts a contractor's negligence, which he calls 'collateral' with failure on the part of a contractor to perform the duty of his employer. For the first the employer is not liable; for the second he is, whether the failure is attributable to negligence or not. Lord Blackburn's language in Hughes v Percival[30] shews that this is really what he meant, for he points out that the employer's duty was to see that his contractor did his work properly. Lord Watson said the same thing."

15 In Lepore, McHugh, J.[31] and Gummow and Hayne, JJ.[32] each attributed the origins of the modern law of non-delegable duty to this Pickard v Smith/Dalton v Angus & Co line of authority (rather than to the Laugher v Pointer line of cases concerning the occupier's liability for nuisance caused by the activities of licensees). That may be because in Lepore their Honours were concerned with the question of non-delegable duty in a matter which had nothing to do with the use of land. Although Pickard v Smith involved the use of land, it was an action on the case in negligence, not nuisance, and it was decided on the basis that it was obvious to the defendant that if a platform trap door were left open people using the platform would be hurt. Therefore it was said it was the defendant's duty to take care to take reasonable precautions not to injure persons lawfully using the platform.

16 But as Mason, J. explained in Kondis v State Transport Authority,[33] the element in a relationship between the parties which generates a special responsibility or duty to see that care is taken (scil. gives rise to a non-delegable duty) may be found in one or more of several circumstances. So in cases like Dalton v Angus,[34] Bower v Peate[35] and Hughes v Percival,[36] which were concerned with rights of support and interference with party walls, the relationship may be that of adjoining landowners such that the rights of one necessarily involve a correlative duty on the other when authorising work which might interfere with those rights to ensure that reasonable care and skill is exercised, rather than a duty merely to exercise reasonable care and skill by the appointment of a competent contractor. Contrastingly, in cases like hospitals[37] and school authorities,[38] the element in the relationship which generates the special responsibility and thus informs the existence of a non-delegable duty is the supervision and control which a hospital or school exercises over patients and pupils and the same is true of employer/employee.[39] In a case like the present, where one is concerned with the escape of something from land, the element in the relationship which is surely most relevant is the control which the appellant exercised over the land and the vulnerability of the first respondent vis-a-vis the appellant in relation to activities conducted on the land. In such cases, the nuisance decisions like Laugher v Pointer and Quarman v Burnett appear to be more directly in point.

17 Before Burnie Port Authority was decided, the law in Australia may have been that the only non-delegable duty of an occupier of land to guard against the escape of things from the land was a non-delegable duty under the rule in Rylands v Fletcher. As that rule applied in Australia it was that:

"...no man should at the expense of his neighbour introduce upon his own land a potential source of harm which is considered to require continual and effective control or restraint to prevent mischief. If through a failure or relaxation of control damage to his neighbour occurs, although without negligence on his part, he should indemnify his neighbour. But when... the use of the element or thing which the law regards as a potential source of mischief is an accepted incident of some ordinary purpose to which the land is reasonably applied by the occupier, the prima facie rule of absolute responsibility for the consequences of its escape must give way. The terms in which the grounds of this exception from or exclusion of the prima facie rule have been described have varied, and, both because of this variation and of their indefiniteness, have been open to criticism. ... But in the decision which finally confirmed the general application of this exclusion of absolute responsibility, namely, Rickards v Lothian_,_[40] Lord Moulton defined the rule to be that the occupier's liability independent of negligence arose from `some special use bringing with it increased danger to others' and `not merely ... the ordinary use of the land or such a use as is proper for the general benefit of the community'."[41]

18 Significantly, the rule in Rylands v Fletcher reflected the Laugher v Pointer line of cases. The "true rule"[42] in Rylands v Fletcher, as enunciated by Blackburn, J.,was that:

"the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."[43]

The origins of the rule have been said to be debatable.[44] But the similarities between Blackburn, J.'s formulation and what was said forty years before, by Littledale, J. in Laugher v Pointer, are obvious.

19 As Flemming says, however, the rule in Rylands v Fletcher did not fit precisely into any rules of tort liability recognised at the time: it was not trespass because the damage caused by the flooding water was not the direct result of constructing the reservoir on the defendant's land; and it has been said that it could not have been nuisance because it was an isolated escape and not a continuous or recurring invasion[45] (although it may be observed that liability for a singular event of nuisance had already been recognised in Tarry v Ashton).[46] While therefore the rule may not have been intended to create a new tort,[47] it represented a further development of the idea that an occupier of real property may be chargeable for injuries occasioned by acts of persons whom he brings onto his land and, importantly for present purposes, it put the non-delegable liability of the occupier on a basis approaching negligence (as it came later to be understood).[48] Furthermore, as the majority in Burnie Port Authority observed, although Rylands v Fletcher was decided 17 years before Brett, M.R. laid down in Heaven v Pender [49] the groundwork for what was to follow 50 years later in Lord Atkin's speech in Donoghue v Stevenson,[50] and thus in advance of the development of the general conception of proximity as the element common to the cases where liability in negligence is found to exist,[51] the subsequent development of the law of negligence had its effect on the rule_._

20 That effect led by stages to the relaxation of the non-natural use requirement; correspondence with rules controlling recoverable damages in an action in ordinary negligence; and, in this country, the recognition of Rylands v Fletcher liability for personal injuries and damage to property sustained outside the relevant property by persons having no relationship to neighbouring land apart from being on it, including on a highway or in a public park.[52] That led in turn to a greatly reduced likelihood that Rylands v Fletcher liability could exist in a case where liability would not exist under the principles of negligence. And, ultimately, that led to the recognition in Burnie Port Authority that:

"The relationship of proximity which exists, for the purposes of ordinary negligence, between a plaintiff and a defendant in circumstances which would prima facie attract the rule in Rylands v Fletcher is characterized by...a central element of control and by... special dependence and vulnerability. One party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things. The other party to that relationship is a person, outside the premises and without control over what occurs therein, whose person or property is thereby exposed to a foreseeable risk of danger." [53]

"It follows that the relationship of proximity which exists in the category of case into which Rylands v Fletcher circumstances fall contains the central element of control which generates, in other categories of case, a special 'personal' or 'non-delegable' duty of care under the ordinary law of negligence. Reasoning by analogy suggests, but does not compel, a conclusion that that common element gives rise to such a duty of care in the first-mentioned category of case. There are considerations of fairness which support that conclusion, namely, that it is the person in control who has authorized or allowed the situation of foreseeable potential danger to be imposed on the other person by authorizing or allowing the dangerous use of the premises and who is likely to be in a position to insist upon the exercise of reasonable care. It is also supported by considerations of utility: 'the practical advantage of being conveniently workable, of supplying a spur to effective care in the choice of contractors, and in pointing the victim to a defendant who is easily discoverable and probably financially responsible'. The weight of authority confirms that the duty in that category of case is a non-delegable one."[54]

21 So, as the majority held in Burnie Port Authority,[55] the rule in Rylands v Fletcher is now seen as absorbed by the principles of ordinary negligence. Under those principles, a person who takes advantage of his or her control of premises to carry on a "dangerous activity", or to allow another to do so, owes a non-delegable duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another. What is more, for those purposes an activity is to be regarded as a "dangerous activity," even though it is not "inherently dangerous" or dangerous in itself, if the combined effect of the magnitude of the foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage if an accident does occur, is such that an ordinary person acting reasonably would consider it necessary to exercise "special care" or to take "special precautions" in relation to it. [56]

The appellant owed a non-delegable duty

22 The agistment of horses on rural land is not "inherently dangerous" or dangerous in itself. Nor without more could it be regarded as a "non-natural use" of the land which the occupier knows to be "mischievous". Accordingly, and even apart from the rule in Searle v Wallbank[57], it is unlikely that an occupier of rural land would have been liable under the rule in Rylands v Fletcher for the escape of a horse from the land onto an abutting highway.[58] But as the result in Burnie Port Authority shows, a defendant may be liable in negligence as in breach of a non-delegable duty to take care to guard against injury the result of an activity conducted on the land, even if the defendant would not have been liable under the rule in Rylands v Fletcher. Following the decision in Burnie Port Authority, the question in each case is whether the combined effect of the magnitude of the foreseeable risk of an accident occurring and the magnitude of the foreseeable potential injury or damage if an accident does occur, is such that an ordinary person acting reasonably would consider it necessary to exercise "special care" or to take "special precautions" in relation to it.

23 In this case I think that they would. On any analysis the agistment of horses on land abutting a major multi-lane highway, like the Western Highway where it abuts St Anne's Winery, is likely to be dangerous for persons using the highway unless care is taken to confine the horses to the land. Further, as it appears to me, the magnitude of foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage in the event of a horse escaping onto the highway and causing an accident are such that an ordinary person acting reasonably would consider it necessary to exercise special care or to take special precautions to prevent the horses' escape onto the highway. In those circumstances I consider that Burnie Port Authority dictates that the occupier of land which abuts such a highway and who permits others to agist horses on the land may be held to owe to motorists passing on the highway by the property a non-delegable duty to take reasonable care to prevent the horses escaping onto the highway.

24 That result accords squarely with the decision in Simpson v Blanche.

The judge's directions

25 So to say, however, does not necessarily resolve the question of whether the judge was in error in directing the jury that the first respondent owed a non-delegable duty to take reasonable care to guard against the escape of the horse.

26 Under the rule in Rylands v Fletcher, it was a question of law for a trial judge to determine whether the use of the land amounted to a special use bringing with it an increased danger to others. The view which was taken was that "...The experience, conceptions and standards of the community enter into the question of what is a natural or special use of land, and of what acts on land should be considered so fraught with risk to others as not to be reasonably incident to its proper enjoyment".[59] But the same does not necessarily apply now that liability is to be decided on the basis of negligence. Indeed the following passage from the dissenting judgment of McHugh, J. in Burnie Port Authority rather suggests the contrary:

"In determining the issue of non-natural use, factors that would be decisive on an issue of negligence will frequently be of only marginal relevance on the issue of non-natural use. Often, they will be irrelevant to the latter issue. In determining whether a use of land is natural, the court does not look at all the particular circumstances of the individual occupier but whether, in the time, place and circumstances of the particular community, the character of the use of the land by that occupier constitutes a non-natural use. Thus, in the classic Rylands v Fletcher situation, land is used for a non-natural purpose even though the particular amount of water stored is small and the walls of the reservoir are thick and high. Similarly, burning a domestic fire to warm a room does not constitute a non-natural use of the premises because the fire has no guard and is left unattended . Non-natural use of land is a different concept from the negligent use of the land. [60]

27 In contrast to the legal conception of a non-natural use, it might also be thought that questions of the magnitude of the foreseeable risk and foreseeable potential injury, and whether an ordinary person acting reasonably would consider it necessary to exercise special care or to take special precautions in relation to it, are essentially questions of fact and degree which ought to be left to the jury. In point of principle, the question of whether the circumstances of a case are such as to warrant the recognition of a non-delegable duty of care is the same kind of question as whether a defendant has exercised sufficient care to discharge a duty of care. If so, it should be for the jury to determine whether a defendant owes a non-delegable duty of care.

28 Obviously, there is a difference between the simple test of whether a defendant has exercised reasonable care in all the circumstances of the case, and whether the circumstances are such as to attract a non-delegable duty. The development of the law on non-delegable duty in relation to the occupation of land demonstrates that there is as much law and policy involved in the analysis as there are issues of fact and moral judgment. Despite McHugh, J.'s observations on the differences between the legal test of unnatural use and the issues in a case in negligence, logic dictates that there may be just as much "community experience, conceptions and standards" involved in assessing whether risks warrant the imposition of a non-delegable duty as used be involved under the rule in Rylands v Fletcher in the assessment of whether acts on land should be considered so fraught with risk to others as not to be reasonably incident to its proper enjoyment. A further consideration is that if the matter is left to the jury it adds a layer of complexity to the directions to be given to the jury which if it were possible should be avoided.[61]

29 But that said, I cannot see that there is sufficient reason to take the matter away from the jury. In the end, there is a critical distinction between the sorts of non-delegable duties which an employer owes to an employee, or a hospital owes to a patient, or a school authority owes to a pupil, and the sort of non-delegable duty which an occupier may be held to owe to persons likely to be affected by activities conducted on the land. And in my opinion that difference is determinative that the question of whether a duty is delegable in a case like this must be left to the jury.

30 In the first three cases, foreseeability is irrelevant to the existence of the duty. In each of those cases the duty is the product of the law's determination that the relationship in question belongs to the class of cases in which the non-delegable duty of care springs from the relationship itself.[62] But, as has been seen, in the case of an occupier of land reasonable foreseeability is of the essence of the matter. The relationship between occupier and road user is not of a class in which a non-delegable duty springs from the relationship itself. The law is not that an occupier in all cases owes a non-delegable duty to users of roads which abut the land. It is rather that an occupier may owe a non-delegable duty to a road user if the magnitude of the foreseeable risk of an accident happening as a result of an activity conducted on the land, and the magnitude of the foreseeable potential injury or damage if an accident does occur, is such that an ordinary person acting reasonably would consider it necessary to exercise "special care" or to take "special precautions" in relation to it. Each case of the type therefore turns on its own facts and circumstances and that implies that it is a matter for the jury.

31 In the result, and despite such complexity as may thereby be added to jury directions, I consider that it is up to the jury to decide whether the magnitude of the foreseeable risk of an accident and the magnitude of the foreseeable potential injury or damage are such that an ordinary person acting reasonably would consider it necessary to exercise "special care" or to take "special precautions" in relation to it, and therefore up to the jury to decide whether the occupier owed a non-delegable duty to the plaintiff in the particular circumstances of the case.

32 It follows, in my opinion, that the judge erred in directing the jury that the appellant's duty was non-delegable. His Honour should have left that issue to the jury on the basis that if they were satisfied that the magnitude of the foreseeable risk of an accident and the magnitude of the foreseeable potential injury or damage were such that an ordinary person acting reasonably would consider it necessary to exercise "special care" or to take "special precautions" in relation to it, they should treat the appellant as having been under a non-delegable duty to take reasonable care to confine Bob to the land, but not otherwise.

New trial not warranted

33 I am, however, not persuaded that the misdirection resulted in a substantial wrong or miscarriage in the trial. Allowing that the question of non-delegable duty in the case of an occupier of land depends in each case on the facts and circumstances of the case, one may conceive of circumstances in which an occupier's duty to contain livestock would not be non-delegable. For example, if a property were miles from anywhere of significance, and abutted a road along which it would not be reasonable to travel at any speed, the magnitude of foreseeable risk and foreseeable potential injury might be such that an ordinary person acting reasonably would not consider it necessary to exercise special care or to take special precautions. But here the location of the property and the nature of the road seem to me to be such as to make it clear beyond peradventure that an ordinary person acting reasonably would consider it necessary to exercise special care or to take special precautions to prevent the escape of Bob onto the Western Highway. In my view the facts were such that the jury were in effect bound to find that the appellant owed a non-delegable duty to take reasonable care to prevent the escape of the animal. Consequently I do not accept that the misdirection would have influenced their verdict.

Standard of care

34 The appellant argues that even if it owed a non-delegable duty to the first respondent, the judge erred in directing the jury that, because of the existence of the duty:

"[The appellant] cannot say 'Samantha [the second respondent] they are your horses, you see they don't get out.' Nor could it delegate that duty to Angus[63] or even to Genetics."

The appellant complains that the direction was inaccurate inasmuch as the fact of a duty being non-delegable duty does not necessarily imply that it is incapable of being delegated; merely that the party under the duty cannot by delegation escape liability for failure in its performance. The appellant also argues that the judge was at fault in later directing the jury that the appellant was under a duty to "...ensure that horses kept on the property did not escape from it by ensuring that the fences and gates were in a condition adequate to contain the horses on the property." It is contended that the jury would have been misled thereby to the view that the appellant was strictly liable for Bob's escape rather than liable only to take reasonable care to prevent his escape.

35 I am not persuaded that there is any substance in either of those complaints. Clearly enough, the applicable standard of care is the standard of reasonable care. As the majority put it in Burnie Port Authority:

"Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasized in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur. Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains 'that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances'. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of 'reasonable care' may involve 'a degree of diligence so stringent as to amount practically to a guarantee of safety'." [64]

But, as it seems to me, that is the effect of the way in which the judge charged the jury.

36 Relevantly, the judge told the jury that:

"Question 2 concerns Samantha McLean, the owner of the horse Bob. She owes a duty of care to anyone who might be injured by the horse, a duty to take reasonable care to prevent the escape of the horse on to the highway where it can cause damage of the kind that occurred here. She is the owner of the horse and is responsible in a general way to see that it does not cause harm to people it might come in contact with and that is so whether it is back at her place in Myrniong or whether it is up at St Anne's, where she kept it and where it was at the relevant time.

The standard of care to be exercised by the second defendant and the third defendant [the appellant] is not an absolute one, it is that which may be expected of a reasonable owner of the horse in the circumstances so far as Samantha McLean is concerned and that which may be expected of the reasonable occupier of the property so far as the company is concerned. To determine what a reasonable horse owner or a reasonable occupier of St Anne's should or should not have done, calls for consideration of the magnitude of the risk involved and the degree of probability of its occurring, along with, on the other hand, the expense or difficulty or inconvenience in taking alleviating action.

When those matters are balanced out, you can determine what is the standard response to be ascribed to the reasonable person placed in the position of the second defendant and third defendant respectively. It is for you to determine and set the standard of care having regard to the circumstances....

...

Secondly, you should take into account the nature and condition of the fencing in existence on the property at the time and its conformity or otherwise with accepted standards. You should also take into account the nature, size and disposition of the horse Bob.

The third defendant [the appellant], as occupier of the property on which the horses were kept, has a non-delegable duty to take reasonable care to ensure that the fences were in a condition adequate to contain the horses within the property. That means that the defendant company, the third defendant, cannot say, 'Samantha, they are your horses, you see they don't get out.' Nor could it delegate that duty to Angus or even to Genetics. Rather, the company, and of course the company can only act through its servant and agents, had a duty to take reasonable care to ensure that horses kept on the property did not escape from it by ensuring that the fences and gates were in a condition adequate to contain the horses on the property.

The jury having been so directed, I do not consider that they could have been left in any doubt that the requisite standard was the standard of reasonable care.

37 It may be that the judge would have been better advised to avoid the use of the words "ensure" and "ensuring" and simply to have directed the jury in terms that the appellant was under a duty to "take reasonable care to keep the fences in a condition adequate to contain the horses". As Gummow and Hayne, JJ. said in Lepore, the formulation of "ensuring that reasonable care" is taken is:

"...a formulation of the duty that may be understood in two radically different ways. Is the focus of the last phrase 'reasonable care was taken of her' upon the reasonableness of the conduct of the person who is caring for the pupil or is it upon the condition of the child continuing to be in a state consistent with reasonable care? That is, the duty might be understood as a duty to ensure that those who have the care of the child act without negligence. Alternatively, it might be understood as a duty to ensure that the child is kept reasonably carefully and is, therefore, not harmed by any act or omission of those who actually have charge of the child. The distinction between the two ways in which the duty is understood is fundamental, but at times in the course of argument there appeared to be an elision of the two."[65]

But again I do not think that there can be any doubt that the jury would have understood that the standard of care required of the second and third defendants was no higher than what might be expected of a reasonable horse owner or reasonable occupier having regard to the magnitude of risk, the degree of probability that it would occur, and accepted standards of fencing.

Apportionment of responsibility

38 The appellant further contends that the result of the judge directing the jury in terms that the appellant was under a non-delegable duty to ensure that Bob was contained resulted in the jury apportioning responsibility on a basis as to 67% to the appellant and as to only 33% to the second respondent, which the appellant contends was unreasonable on the evidence. The argument is that the apportionment is ex facie unreasonable having regard to other undisputed evidence that the second respondent agisted Bob and other horses in the bull paddocks; that the second respondent was responsible for the care of the horses, including the fencing of the bull paddocks within which the horses were agisted; that the second respondent was an experienced horsewoman; and that the second respondent had checked the horses and the fences regularly including as recently as 36 hours before the collision.

39 For the reasons already given, I do not accept that the jury were misled as to the standard of care required of the appellant and the second respondent. I also see nothing in the apportionment which the jury awarded to suggest that the jury may have been misled or otherwise erred. The high point of the evidence on apportionment in favour of the appellant was a concession of the second respondent that she regarded it as being a shared responsibility. As against that, Mr McLean, who was a director of the appellant, gave evidence that he understood that the appellant had an obligation to keep animals on the property within the property and to stop them getting off the property. He also accepted that it was his understanding that the appellant had the primary obligation to see that the fences were stock proof. Mr McLean added that he did not consider that the appellant had responsibility for boundary fencing once satisfied that Genetics were looking after the internal fencing. But that reservation did not bear on the apportionment of responsibility as between the appellant and the second respondent. He admitted that he had seen that the fencing at one of the boundaries was in a sub-standard condition and that he had not done anything about it or given any instructions to company employees or to anyone else to do anything about it, and he further admitted that he had never said in so many words to the second respondent that he regarded her as having any responsibility for the condition of any of the fences. As far as the evidence went

therefore the second respondent was a mere licensee with no direction as to where in particular on the property the horses were to be kept and to what if any steps she was expected to take to see that they remained contained.

40 In any event, the law is clear that the making of an apportionment between parties as to their respective shares in the responsibility for damage involves a comparison of culpability and the relative importance of the acts of the parties in causing the damage. As was said in Podrebersek v Australian Iron & Steel Pty Ltd,[66] it is the whole of the conduct of each negligent party in relation to the circumstances of the accident that must be subjected to comparative examination. It is also an exercise which involves an individual choice or discretion as to matters over which there may well be differences of opinion. Consequently, an appellant who seeks to attack such a finding invariably faces a difficult task. Plainly the task is even more difficult where as here the apportionment has been made by a jury.[67] When, however, the apportionment to which the jury came is assessed against the evidence, it seems to me that it was well within the range of sound discretionary judgment.

Conclusion and orders

41 In my judgment the appeal should be dismissed.

42 I agree that the appeal should be dismissed, for the reasons given by Nettle, J.A.

[1] (1993) 17 M.V.R. 86.

[2] T. 384-5.

[3] Genetics Pty Ltd was a company which had built the bull paddocks in order to conduct breeding operations there from time to time.

[4] [1980] HCA 12; (1980) 146 C.L.R. 40 at 47.

[5] (1993) 17 M.V.R. 86 at 89.

[6] (1998) Aust Torts R. 81-458, in which of course Kirby, P. did not participate.

[7] [1984] HCA 61; (1984) 154 C.L.R. 672 at 687.

[8] [1994] HCA 13; (1994) 179 C.L.R. 520 at 550-1.

[9] (1998) Aust Torts R. 81-458 at 64,783.

[10] New South Wales v Lepore [2003] HCA 4; (2003) 212 C.L.R. 511 at 598[255].

[11] [1999] HCA 59; (1999) 200 C.L.R. 1 at 29[61].

[12] [2000] HCA 56; (2000) 205 C.L.R. 166.

[13] [1826] EngR 355; (1826) 5 B. & C. 547 at 560; [1826] EngR 355; 108 E.R. 204 at 209.

[14] See also Quarman v Burnett [1840] EngR 182; (1840) 6 M. & W. 499 at 510; [1840] EngR 182; 151 E.R. 509 at 514, per Parke, B.

[15] (1874) L.R. 18 Eq. 303.

[16] [1876] 1 Q.B.D. 314 at 318.

[17] (1895) 12 T.L.R. 76.

[18] (1981) 80 L.G. R. 337.

[19] See New South Wales v Lepore [2003] HCA 4; (2003) 212 C.L.R. 511 at 567[149].

[20] [1861] EngR 71; (1861) 10 C.B. (NS) 470; 142 E.R. 535.

[21] Kondis v State Transport Authority (1984) 154 C.L.R. at 684.

[22] [1975] HCA 59; (1975) 133 C.L.R. 550 at 576.

[23] (1997) 188 C.L.R. 313.

[24] [1896] 1 Q.B. 335 at 341-342.

[25] [1864] EngR 816; (1864) 5 B. & S. 970.

[26] [1862] EngR 257; (1862) 7 H. & N. 826.

[27] (1876) 1 Q.B. D. 321.

[28] [1840] EngR 182; (1840) 6 M. & W. 499.

[29] (1881) 6 App. Cas. 740 at 829; see too Johns v Delaney [1890] VicLawRp 152; (1890) 16 V.L.R. 729 at 737; Stoneman v Lyons [1975] HCA 59; (1975) 133 C.L.R. 550 at 566-7, per Stephen, J.

[30] (1883) 8 App. Cas. at 446.

[31] At 568[150].

[32] At 596[248].

[33] [1984] HCA 61; (1984) 154 C.L.R. 672 at 684-5; cf. Scott v Davis (2000) 204 C.L.R. 333 at 416-7, per Gummow, J.

[34] (1881) 6 App. Cas. 740.

[35] (1876) 1 Q.B.D. 321.

[36] (1883) 8 App. Cas. 443.

[37] Gold v Essex County Council [1942] 2 K.B. 293.

[38] Ramsay v Larsen (1964) 111 C.L.R.16 at 28; The Commonwealth v Introvigne (1982) 150 C.L.R. 258 at 271.

[39] Wilsons & Clyde Coal Co v English [1937] UKHL 2; [1938] A.C. 57; Cotter v Huddart Parker Ltd (1941) 42 S.R.(N.S.W.) 33.

[40] [1913] UKPCHCA 1; (1913) 16 C.L.R. 387, at p 401; [1913] UKPC 1; [1913] A.C. 263, at p 280.

[41] Hazelewood v Webber [1934] HCA 62; (1934) 52 C.L.R. 268 at 277-278; Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 C.L.R. 520 at 585, per McHugh, J. in diss.

[42] As the majority of the High Court described it in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 C.L.R. 520 at 535, per Mason, C.J., and Deane, Dawson, Toohey and Gaudron, JJ.

[43] See also Rainham Chemical Works Ltd (in liq) v Belvedere Fish Guano Co Ltd [1921] 2 A.C. 465 at 485 ; McInnes v Wardle [1931] HCA 40; (1931) 45 C.L.R. 548 at 552, per Dixon, J.

[44] See Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 C.L.R. 520 at 548, fn's 45 and 46.

[45] Flemming, The Law of Torts, 9th Ed. at 375.

[46] [1876] 1 Q.B.D. 314.

[47] As expressed, the rule did not purport to be anything more than a generalized statement of ancient common law doctrine as exemplified by a variety of earlier cases. See: Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 C.L.R. 520 at 592, per McHugh, J.

[48] As opposed to case for negligence which was commonplace by the 19th century: Plucknett, A Concise History of the Common Law, 3rd Ed. at 416.

[49] (1883) 11 Q.B.D. 503.

[50] [1932] A.C. 562.

[51] (1994) 179 C.L.R. at 520 at 542; compare the more recent formulation of "total relationship between the parties": Graham Barclay Oysters Pty Lt v Ryan [2002] HCA 54; (2002) 211 C.L.R. 540 at 595[145], per Gleeson, C.J.

[52] Benning v Wong [1969] HCA 58; (1969) 122 C.L.R. 249 at 320.

[53] "which he knows to be mischievous if it gets on his neighbour's [property]": Fletcher v Rylands (1866), L.R.1 Ex., at p. 280.

[54] [1994] HCA 13; (1994) 179 C.L.R. 520 at 551-2, footnotes omitted.

[55] Subject only to the possible exception of a case in which it was preferable to see a defendant's liability lying in nuisance or trespass and not in negligence.

[56] (1994) 179 C.L.R. at 558-559.

[57] See SGIC v Trigwell [1979] HCA 40; (1978) 142 C.L.R. 617 at 637, since abrogated by Part VIII of the Wrongs Act 1958.

[58] Although of course the occupier could have been held liable for cattle trespass if the horse escaped onto a neighbouring property.

[59] Hazelwood v Webber [1934] HCA 62; (1934) 52 C.L.R. 268 at 278; Burnie Port Authority v General Jones Pty Ltd (1994) 179 C.L.R. at 588.

[60] Ibid. at 589, emphasis added.

[61] Cf. Ahern v The Queen [1988] HCA 39; (1988) 165 C.L.R. 87 at 102-103.

[62] State of New South Wales v Lepore [2003] HCA 4; (2003) 212 C.L.R. 511 at 564[141].

[63] Angus was Samantha's husband and the manager of St Anne's.

[64] [1994] HCA 13; (1994) 179 C.L.R. 520 at 554, footnotes omitted.

[65] New South Wales v Lepore [2003] HCA 4; (2003) 212 C.L.R. 511 at 595[245].

[66] Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 A.L.J.R. 492 at 492-3; see also Moore v Scolaro's Concrete Constructions Pty Ltd (in liq) [2004] VSCA 152; (2004) Aust Torts Reports 81-767 at 66,041[8] and [9] per Eames, J.A.

[67] Zoukra v Lowenstern [1958] VicRp 94; [1958] V.R. 594 at 595; Moller v Trollope Silverwood and Beck Pty Ltd [2004] VSCA 22 at [15]- [18].