Barrett v Dubbo City Council

20313/02 PATRICK JOSEPH BARRETT v DUBBO CITY COUNCIL

JUDGMENT 1 HIS HONOUR: The plaintiff, Patrick Joseph Barrett, brings these proceedings against the Dubbo City Council, claiming damages for negligence in respect of injury sustained at the Dubbo saleyards on 20 November 1997. The defendant denies any negligence in the circumstances giving rise to this claim and, alternatively, it raises the defence of contributory negligence. 2 At the outset it is necessary to determine how the plaintiff met with his injuries.

Circumstances in which the plaintiff was injured 3 The plaintiff was appointed as manager of Elders Dubbo branch in April 1989 and he held that position as at 20 November 1997. On that date he attended the Dubbo saleyards where sales of stock took place on Mondays and Thursdays. The plaintiff had not participated in the ballot for pens for that particular sale day because when the ballot took place Elders had no cattle for sale. However, the plaintiff said (T 10) that a mob of "fifty-one or fifty-three" head of cattle came in late from a client whose property was south of White Cliffs, and these were to be sold after the main cattle sales had occurred. The plaintiff recalls walking to the pen where those cattle were being held, but he said he remembers nothing after that until he regained consciousness in Dubbo hospital. 4 I observe at this point that the plaintiff impressed me as a completely honest witness. I accept that he has no recollection of his accident and I am satisfied that the reason for this is that he sustained injury to his head at the time of it. How this occurred requires attention to the evidence of two other Elders' employees, Mr Barlow and Mr Prentice. 5 I propose before doing so to describe the area where the accident occurred. An aerial photo of the saleyards became Exhibit A and the approximate location of the accident was marked on it. This location was not in dispute. The evidence established that the yards were constructed in stages, with different materials and to different dimensions. 115 pens were constructed in the 1950s, 88 pens in the mid '70s, a further 22 pens in 1980, and another 54 pens in 1995. The accident in question happened in an area constructed in about 1974. Of the yards built in the 1950s, some were constructed of tubing and others from rail iron. They were laid out on a different module from those constructed in later years, where the construction and layout were more uniform (see Mr Huefner's report, Exhibit 6, paras 10 and 16). 6 The pens immediately adjacent to the lane where the accident occurred have been described by Mr Huefner (report, Exhibit 3) as having panels and gates constructed of galvanised tubing. The panels and gates were 1.5 metres high. 7 The width of the lane down which the particular lot of cattle was to proceed when released from the holding pen was in excess of 3000 mm, although the width of the lanes varied somewhat. According to Mr Huefner, the variation was from 3050 mm to 3350 mm. The gates to the pens down the lane also varied in length, from 1800 mm to 2540 mm. This meant that if a pen gate was opened to 90°, it did not reach the fence line on the opposite side of the lane. This feature of the layout in these saleyards was a focal point in the plaintiff's case on liability. If a beast released from the holding pen was to be steered into a particular pen along the lane, it was for the person stationed at the gate to that pen to hold the gate open across the lane in order to block the beast's passage past the gate, thus encouraging it to leave the lane and go into the open pen. 8 I return to a consideration of the evidence of Mr Barlow and of Mr Prentice. 9 Mr Barlow commenced with Elders in 1988. He said he was at the yards with the plaintiff and Mr Prentice. He said that the late lot of cattle were put in the holding pen at the top of the race. The plaintiff was attending that pen to draft the cattle out and Mr Barlow and Mr Prentice were stationed at gates down the race. Mr Barlow said he was standing three pens down and Mr Prentice was two pens down, that is, in front of Mr Barlow. 10 Mr Barlow said (T 145) that the plaintiff let a very unruly beast out of the holding pen and the beast: "exploded down the lane at a million miles an hour, and he was to go into the pen where Allan Prentice was but Allan, he was just going too quick, the beast was going to quick for Allan to open his gate." 11 For his part, Mr Barlow said he jumped on the rail and the beast went past him, and went down as far as gates that were across the lane. The beast then stopped, turned and came "careering back". Mr Barlow went on to say (T 145-146): "Okay, in that short period of time, which all happened very quickly, I removed myself from the lane and put myself into an empty selling pen. At that stage Allan Prentice had come back to the returning gate into the pen that the bullock was supposed to go into, and Paddy could see what was happening and so he locked his gate at the top of the draft where the other cattle were, ran down the gate, and as Allan was opening his gate the bullock was careering back. He got Allan out of the road, and Allan basically - I don't know whether he jumped up the rail, but he got square onto the opposing side of the selling pen on the other side of the lane, which in this time Paddy had got behind the gate, and before he had a chance to get to the end of the gate the bullock had run back up the lane and jumped in mid air crashing into the gate." 12 Mr Barlow was asked whether he saw what happened to the plaintiff, and his evidence proceeded (T 146): "Q. Did you see what happened to Paddy? A. Yes, definitely.

Q. What, did you see the gate strike Paddy at any part of his body? A. Hit him straight flush across the forehead.

Q. What happened then? A. He went back. He went back faster than a speeding bullet. The bullock hit his head, he went straight back perpendicular and hit the concrete on the back part of his head.

Q. And what did you do then? A. Well it was a very sickening thud, and I immediately thought at that instant that he was dead." 13 It was Mr Barlow's view that the plaintiff's intervention saved the elderly Mr Prentice from harm (T 146): "Q. And if the beast had continued on down the laneway, and Mr Barrett hadn't intervened, what was your assessment of what would have happened to Mr Prentice? A. Same thing would have happened to him." 14 It was also Mr Barlow's evidence that had the gate locked across the lane the plaintiff would not have been struck (T 146-147). 15 Mr Prentice told the Court he was presently eighty-five years old. He worked for Elders at the Dubbo yards. He said he had been relegated to handling sheep before the date of the plaintiff's accident and was only called on to assist with these cattle because the plaintiff was short of men: "Otherwise I would have been down with the sheep." (T 201) 16 Until the day he gave his evidence he said he thought Mr Barlow was doing the drafting and that the plaintiff was looking after a gate behind him (T 194). Mr Prentice said two beasts went past him "flat chat", leaving one bullock. That beast "suddenly…took off and he was air borne when he hit the gate with his brisket" (T 196). Mr Prentice said that the beast was two pens away when he took off. 17 Mr Prentice said he was holding the gate with his left hand (T 197) and he said he had the gate open to "forty degrees…perhaps a little more" (T 197). It was Mr Prentice's recollection that he was never behind the gate (T 199) and he could not remember the plaintiff being anywhere near him. Mr Prentice gave this evidence (T 199): "Q. At any stage do you recollect Mr Barrett getting you out of the way? A. No I can't. I can't remember Paddy Barrett being anywhere near me.

Q. Do you recollect that Mr Barrett pushed you out of the way? A. No I can't remember that.

Q. Do you think that happened? A. He could have done because, you know, things were pretty tense.

Q. But it's not your recollection? A. No. He could have done. But as I say, I can't recall being pushed out of the way, because I still can't remember seeing Paddy anywhere in that area. He obviously was because he was within the orbit of the gate.

Q. When did you notice him being within the orbit of the gate? A. I didn't. The first thing - the next thing I knew he was flat on the ground.

Q. How far behind you was he? A. Well he might have been - or it's hard for me to say now, he might have been a foot or so behind me at the most." 18 It is, of course, difficult to reconcile the evidence of Mr Prentice with the evidence of Mr Barlow. In the course of his very detailed submissions, Mr Taylor argued that the evidence of Mr Prentice was to be preferred. He submitted that Mr Barlow's descriptive language was more impressionistic than detailed, that concessions were made in cross examination, and that there was inconsistency between his evidence and a statement taken in March 2001. 19 On the other hand, he submitted that Mr Prentice, being more directly involved in the accident itself, had the better recollection of relevant events. 20 I have given those submissions close thought but I have concluded where there is conflict that the evidence of Mr Barlow is to be preferred. This is not because I regard Mr Prentice as untruthful. I do not. I consider both Mr Barlow and Mr Prentice to have been truthful witnesses, but I had the opportunity of observing both men closely as they gave their evidence and Mr Prentice very frankly conceded (T 200) that his recollection of these events was not very good. Mr Prentice conceded he might have been mistaken about his position in the laneway (T 200) and his evidence left me with the impression he really was uncertain who it was who was letting the cattle out from the holding pen and who it was who was manning the other gate in the lane. 21 Where then there is conflict, I find the evidence of Mr Barlow to have been the more reliable. The evidence of both men is consistent in many respects in any event, and I am satisfied that the plaintiff was injured when a beast struck an open gate which Mr Prentice had been attending, forcing that gate back against the plaintiff. The impact with the plaintiff knocked him back to the ground and he sustained serious head injury. 22 I am satisfied by the evidence of Mr Barlow, and inference to be drawn from that evidence, that the behaviour of the beast after it left the holding pen led the plaintiff to approach the pen gate which Mr Prentice was attending, with a view to protecting Mr Prentice from harm and in an endeavour himself to control the gate so as to cause the beast to change direction. Satisfied as I am that it was the plaintiff who was operating the gate of the holding pen, it seems to me the inference is compelling that it was the behaviour of the beast and its approach towards Mr Prentice which influenced the plaintiff to move from the holding pen and to do what he did.

The negligence alleged 23 It is the contention of the plaintiff that the defendant ought to have done one of two things:

(ii) alternatively, it ought to have provided pens with interfering gates.

An overhead draft 24 Mr Morcom, a stock and station agent in Dubbo for thirty years, gave evidence concerning the overhead draft which has very recently been constructed at Dubbo. Mr Morcom said this construction improved the efficiency and speed of handling of beasts. He had found he was able to draft 400 steers in half an hour whilst before the construction using the same lane he was only able to do 100 steers an hour (T 172). He said that the new construction was "unbelievable" and that people were not in with the cattle anywhere at all.

25 Accepting that the new facility has the qualities referred to by Mr Morcom, I am not persuaded that overhead drafting ought to have been provided in the Dubbo yards as at November 1997. The facility was completed in July 2003 and permits cattle to be drafted into sale lots and moved in groups to the sale pens. The evidence falls short, however, of satisfying me that the discharge of the defendant's duty of care to the plaintiff required of it the provision of such a facility at the time the plaintiff was injured. As Mr Vowles acknowledged in Exhibit D, this new facility was, when introduced, "a recent innovation in design". 26 Exhibit 5 contains the minutes of the quarterly meeting of Dubbo Stock and Station Agents Pty Limited held on 1 December 1998. Those minutes record: "It was suggested that an overdraft be looked at for Western Cattle." That is the first reference in the evidence to any consideration of the provision of an overhead draft for the Dubbo yards. The subsequent minutes of that same entity dated 24 October 2000 record that there had by then been consultation with Mr Stanton (from the defendant) about the provision of an overhead cattle draft (Exhibit 5, p 219). Then the minutes for the meeting of 30 January 2001 note that the meeting was briefed that a delegation of council staff and DSSA members visited Toowoomba, Dalby and Roma saleyards, looking at overhead cattle drafts. Those minutes noted the council's commitment by that time to the introduction of such a facility in Dubbo. 27 The activity reflected by the above minutes does not evidence that the defendant ought to have provided an overhead drafting facility prior to November 1997, or indeed that it ought to have considered the provision of such a facility by that time. Little time was occupied on the subject of the failure of the defendant to provide such a facility, and Mr Cranitch spent little time in his final submissions on this issue, stating: "We don't resile from the overhead draft as a possibility". The plaintiff has not proved that the defendant was negligent in its failure to provide an overhead draft as at the time of the plaintiff's accident.

Interfering gates 28 The real issue on liability centred on interfering gates. 29 The alternative submission was that in the discharge of its duty of care the defendant ought to have provided pens with interfering gates, that is to say gates which when opened interfered with the other side of the laneway by coming up against the fence on that side, thus affording protection for handlers behind such gates. It was submitted that at the very least interfering gates should have been introduced in the existing yard areas, other than the area constructed in the 1950s, at the time when additions were carried out in 1995. Such introduction would have involved the area where the plaintiff had his accident. 30 Evidence was introduced in this case bearing on the issue of liability from two expert witnesses to whom I have already referred. The plaintiff called Mr Vowles and the defendant called Mr Huefner. Both experts provided reports: the reports from Mr Vowles became Exhibit D and Exhibit H, and the reports from Mr Huefner became Exhibit 3 and Exhibit 6. Each witness gave oral evidence and was subjected to extensive cross examination. 31 Each of these witnesses had very considerable relevant expertise and experience, as evidenced by the curriculum vitae each presented: Mr Vowles, Appendix A to Exhibit D, and Mr Huefner, Exhibit 3. 32 Mr Vowles had experience handling cattle and said (T 314): "Q. Have you had, as part of your expertise, a significant background with cattle? A. I have. I was born on a cattle property. I studied agricultural science and joined the Victorian Department of Ag, and in all those endeavours there is a considerable amount of handling cattle. Then at a later time with the Department of Agriculture, I was responsible for research work into animal behaviour in yards, sponsored by the Australian Meat Research Committee, and large numbers of cattle were put through various facilities, to ascertain animal behavioural traits, and the usefulness of various physical attributes in yards. As well as that, as part of my production work, we handled very large numbers of cattle in feed lots and currently, I own and operate a saleyards. I don't work in the yards a great deal these days, but I have been involved in both handling stock in those yards, and in the training of my agents, which number 50 odd, to ensure that they operate and handle cattle in a safe manner." 33 Mr Huefner lacked a lot of actual cattle handling experience (T 408), but like Mr Vowles he had extensive relevant construction expertise. 34 Having had the advantage of listening to and observing both witnesses closely, I found them both to be impressive witnesses, with genuinely held opinions. Plainly their opinions differed in many significant respects, as is apparent from a reading of their reports. 35 Mr Vowles, whose centre of experience was in Victoria, wrote in Exhibit D: "…the drafting of cattle in Victoria and New South Wales is regularly practiced in laneways. However almost without exception, these gates can be locked across the lane or as is current industry standard, and most desirable, 'interfere' with the other side of the lane on a slight angle. This angle has the effect of not allowing the gate to swing through, and thus protect handlers behind the gate, and secondly, creates an angle which tends to turn animals in the desired direction into the pen. The provision of interfering gates as a standard feature in saleyard design has existed and been recommended for at least 20 years." 36 In oral evidence Mr Vowles said there exists "an absolute industry standard" providing for cattle drafting with interfering gates or gates locking across the lane (T 111), and he said that the top twenty saleyards in Victoria have gates that either catch or interfere (T 126). Later (T 320), Mr Vowles said that no saleyards have been built in Victoria or South Australia since 1980 without interfering gates. It was his opinion that from the mid 1980s onwards interfering gates should have been a requirement for any design for yard extensions (T 320). It followed that in his opinion when the Dubbo yards were extended in 1995 interfering gates should have been introduced elsewhere in the complex. He wrote (in Exhibit H): "It is my opinion that the new pens constructed in 1994 could and should have been constructed on the accepted standard of interfering gates and that the inherent danger of the old section should have been recognised and modified at this time." 37 The area where the plaintiff was injured came under the description of "the old section" because the relevant pens had been constructed in about 1974. 38 Mr Vowles was asked these questions and gave these answers concerning the Dubbo yards (T 321): "CRANITCH: Q. I am asking about the new area. I am coming to the existing area. In relation to the area on which you have expressed a view in your current report, that in 1995 when this revision was done, attention should have been directed to the use of interfering gates, in the existing saleyards. Is that correct? A. I believe so.

Q. Why do you say that? A. Well, Dubbo is a big centre, and that established practice had been used in Victoria in particular. There hadn't been a great number of new yards constructed in New South Wales, to my knowledge, only Mudgee, and in the 1990's some construction at Inverell and Wagga which has interfering gates, and spending any sort of money on new development and in operating yards which are of the magnitude that Dubbo yards are, I would have thought that that review should have been done at that time.

Q. Had it been done, did you envisage that the modifications you have suggested could have been implemented? A. I believe the modifications are very reasonably priced, or achievable, in terms of through put and the management of that facility, yes." 39 The modification of the existing yards would have involved increasing the size of the pens along one side of the laneway by some 600 mm. This would have had the advantage, of course, of making room for more cattle but, of critical importance on the plaintiff's case, it meant that with gates 2.5 metres long in the fully open position, a gate would interfere with the pen on the other side of the laneway. 40 Whilst measurements introduced through Mr Huefner as to the actual lane widths (see para 7 above) meant that the lane widths may have required reduction to an extent a little greater than that first contemplated by Mr Vowles, it is, I think, accurate to record that Mr Vowles remained firm in his opinion that it was practicable to introduce interfering gates other than in the oldest section constructed in the 1950s. That oldest section represented about forty percent of the total area of the yards. 41 Mr Huefner wrote on 7 February 2002: "In the design of saleyards, it is not always possible to achieve self locking or interfering gate operation, so it is quite common to have gate arrangements similar to those found at Dubbo. Without carrying out a detail[ed] survey of all saleyards in NSW, but based on first hand knowledge plus advice from saleyard operators, it is likely that over one half of the existing yards in NSW operate with non interfering, non lockable gates (ie short gates), and have done so for decades. Dubbo Saleyards has operated for nearly 50 years with such gates and the Plaintiff was certainly familiar with those gates at the time of the accident. There is no evidence that had the gate in question been lockable, then the incident would have been avoided." 42 In his later report of 24 March 2004 (Exhibit 6), Mr Huefner responded to Mr Vowles' proposal to modify the existing yards in 1994 by the introduction of interfering gates. Mr Huefner expressed the opinion that modifications were "totally impracticable" for the yards built in the 1950s. These yards represented forty percent of the total sale pens and, as I understand it, Mr Huefner considered it would be impracticable to modify those yards because of the construction materials that had been used when they had been built and because the dimensions of the pens were not uniform. I do not understand Mr Vowles ultimately to have maintained that the oldest yards built in the 1950s could have been modified and, in any event, I accept the opinion of Mr Huefner that modification of those yards was not practicable. However, as to the remaining sixty percent, that is the yards built after 1970, I do not understand that Mr Huefner ultimately considered it would not have been possible for Mr Vowles' proposed modifications to have been carried out. 43 In cross examination Mr Huefner conceded that it would have been physically possible in 1994 to modify the existing areas, doing one or two lanes at a time (T 403). He acknowledged it would have been desirable to have interfering gates (T 405), and he said that had he been designing the additions in 1994, he would have introduced interfering gates, although not for the purpose of safety but for the purpose of being able to use less man power (T 414-415). 44 My conclusion is that Mr Huefner ultimately acknowledged that it was practicable to modify the yards introducing interfering gates in 1994 in the area that existed before that, other than the section constructed in the 1950s. These questions were asked of the witness and he gave these answers (T 411): "Q. We are talking about putting in interfering gates in a sufficient number of yards to deal with the proposition of wilder cattle that came through and I'm suggesting to you that it would have been adequate to have altered the '94, the '88 and the '74 yards to deal with those aspects? A. I'm presuming that you meant leave the 1950s alone.

Q. Yes? A. From one point of view the answer has to be probably yes.

HIS HONOUR: Q. Probably yes what? A. Yes, that it is economically viable to do so. We have already established that it's practical to do so. The question that arises is: How does it refer to the total yards, which includes the 1950s, and that leaves about 40 per cent uncovered for that particular purpose and, based on an overall criteria, particularly if you add in the need to go and look at the 1950s, it becomes quite unviable." 45 My assessment of the evidence of Mr Vowles and of Mr Huefner leads me to find that it would have been possible when the additions were being introduced in 1995 to have then introduced interfering gates for the yards constructed after 1970. These modifications could have been effected in stages so as to minimise disruption in the operation of the saleyards. 46 Questions as to the cost of the modifications occupied the minds of both experts and a deal of evidence was given on this issue. One of the possible cost elements concerned hinges that would have permitted the gates to swing back into the yards adjacent to the laneways. Mr Huefner acknowledged his agreement with Mr Vowles that it was achievable to have gates that swing into the pen (T 424-425): "Q. Just one final matter sir. I'm again taking you back, if I may, to whatever difference there may be between yourself and Mr Vowles just to put you into the picture. The question of the gates being designed in such a fashion so that they are, by changing the hinges and so forth, so that they swing into the pen is a matter that both you and Mr Vowles say is achievable in these circumstances. Is that right? A. Yes it is achievable.

Q. It's achievable using the same laneway width by the simple matter of adjusting either the hinges or the amount you bring out the other side of the laneway. In other words, when you're narrowing the laneway down from 3 metres you can still keep it at 2.5 or thereabouts depending upon how you configure the hinges. Is that right? A. That would be right, yes." 47 Mr Cranitch submitted that it was unnecessary to embark upon a close analysis of the costings that were done by Mr Vowles and by Mr Huefner. Those costings differed but Mr Cranitch submitted not in a way that would affect the outcome in determining whether interfering gates should have been introduced. The cost of the necessary modifications in the area constructed between the '70s and 1994 would not have exceeded $200,000. It would have been not less than $120,000. Cost is a factor to be considered in determining whether the exercise of reasonable care required of the defendant the carrying out of the modifications proposed by Mr Vowles at a time prior to the plaintiff's accident. It is one of a number of factors to be weighed, and which I shall shortly consider. However I accept Mr Cranitch's submission that just where the actual cost be between $120,000 and $200,000 is not determinative. 48 I find that it would have been possible when the new construction work was undertaken in 1995 to progressively modify those yards constructed between 1970 and 1995 so as to introduce interfering gates across the laneways. Whether the defendant was negligent in failing to provide such gates depends upon considerations I will shortly address, but I shall next deal with the issue of causation raised by Mr Taylor.

The issue of causation 49 It was submitted on behalf of the defendant that the absence of interfering gates was not a relevant cause of the accident. On Mr Barlow's account that the beast "exploded" from the drafting yard too quickly for Mr Prentice to have opened his gate (T 154), if the gate Mr Prentice was stationed at had been an interfering one he still would not have had time to prevent the beast going past. When it came to the beast's return journey, it was submitted I would not find that, at the time the plaintiff was struck, the return gate had reached a position where, had it been long enough, it could have come into contact with the fence. Hence the absence of an interfering gate was not causative of the accident.

50 I reject those submissions. I earlier expressed my finding (at para 22) as to why the plaintiff approached the gate Mr Prentice was holding. Had that gate been an interfering gate, I consider it unlikely the plaintiff would have left his position at the drafting pen in the first place. Moreover, I accept the evidence Mr Barlow gave (T 146-147) that the provision of interfering gates would have prevented the accident: "Q. If the gates had not been able to swing the full circle from what you could see of how the accident happened, in other words if the gates had locked onto the other side of the fence, would Mr Barrett have been struck in the way that he was? A. No." 51 The plaintiff has discharged the burden of proof on this issue.

52 Would a reasonable man in the position of the defendant have foreseen that the failure to provide interfering gates involved risk of injury to the plaintiff?

53 Mr Taylor submitted this question should be answered in the negative, because the risk of injury only existed if a person placed himself behind a non-interfering gate, contrary to a fundamental safety rule as established on the evidence. The plaintiff agreed it was "a basic precaution" not to stand behind a gate when opening or closing it (T 106); Mr Barlow said "everyone is aware" of the basic precaution of not standing behind gates (T 161); and Mr Vowles emphasised the importance of standing on the outside of a non interfering gate (T 132). Mr Taylor submitted that because the risk was so obvious it was not reasonably foreseeable that a competent stockman would stand behind a gate when a beast was approaching. Mr Taylor cited Van Der Sluice v Display Craft Pty Limited [2002] NSWCA 204, in which the Court of Appeal was dealing with the issue of foreseeability of injury to a tradesman who was using a ladder. In that case, and in that context, Heydon JA said (at 74) "These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks." 54 I am not persuaded by Mr Taylor's submission on this issue. A stockman whose work took him into a laneway below a drafting yard was necessarily brought into reasonably close proximity with beasts released in the drafting process, and the evidence establishes that these beasts from time to time behaved erratically and unpredictably. It seems to me, according to the undemanding definition of a foreseeable risk, as stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48, that it was reasonably foreseeable that a stockman might be caught out of position behind a gate, as I find the plaintiff was in this case.

55 Hence I determine the question I have here posed in the affirmative. Of course, as Mason J (as he then was) pointed out in Shirt (at 48), the magnitude of the risk and its degree of probability remain matters to be brought into account in determining whether the defendant was, in the circumstances of this accident, in breach of its duty of care.

Did the exercise of reasonable care require of the defendant that it provide interfering gates?

56 The defendant's duty as the occupier of the yards was to take such care as was reasonable in the circumstances, and no more: see Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 and Jones v Bartlett (2000) 205 CLR 166, and in particular the judgment of Gaudron J at paras 92-93. 57 One matter to be considered is the question of cost of construction. It is relevant to note that the defendant was conducting at the Dubbo saleyards a commercial enterprise. These yards were described by Mr Vowles as "the largest saleyard for cattle in New South Wales" (T 110). Mr Morcom, to whom I referred earlier (para 24), said the defendant charged $3.45 per head of cattle processed and on one day Mr Morcom put through 8200-odd head of cattle (T 172). That evidence I accept. 58 I have found that it would have been possible to have introduced interfering gates in the area where the accident happened in 1995 or thereabouts, and to have done so in stages, without causing major disturbance to the operation of the saleyards. I have also found that the cost of those modifications would not have exceeded $200,000 and may have been in the vicinity of $120,000. There is no precise evidence as to how profitable the yards were in the relevant period, but Exhibit M contains a summary of operating revenues and expenses for the yards for the year ended 30 June 1996 and discloses an operational surplus of $209,864 before provision for capital expenses. No evidence has been called by the defendant to indicate that the expenditure of up to $200,000 on the modifications contemplated by Mr Vowles would have been beyond the defendant's financial resources referable to the operation of these yards in the year 1995 and thereabouts. I do not conclude that it would have been beyond those resources. Nor, however, do I find that the defendant's resources were unlimited, and obviously the defendant was to be expected to behaved responsibly in the allocation of available funds.

59 Had the modifications proposed by Mr Vowles been carried out, this would have left forty percent of the complex without interfering gates and hence there would have been an absence of uniformity. Whether such a lack of uniformity would have been disadvantageous or not in the conduct of these yards, I find myself unable to determine. 60 As Mr Vowles acknowledged (T 128), in 1994 there were no national standards in relation to the construction of saleyards. Indeed there was before this plaintiff's accident no applicable standard that required the use of interfering gates in saleyards in New South Wales. In 1995-1996 the Livestock Saleyards Association of Victoria introduced a Code of Practice requiring the provision in new yards of interfering gates, but this, of course, was not binding in New South Wales. The defendant introduced into evidence licensing and accreditation documents for the Dubbo saleyards (part of Exhibit 5). The licence held by the defendant from the New South Wales Meat Industry Authority issued pursuant to the Meat Industry Act was held subject to compliance with the Code of Practice prescribed by the Authority. The Code current in November 1997 was silent as to any requirement for the provision of non interfering gates. In 1998 National Saleyards Quality Assurance Limited published the National Standard for the Construction and Operation of Australian Saleyards, and this provided that pen gates should be of adequate length and hinged in such a way as to enable the gate to contact the other side of the lane, to assist in stock movement. That standard was, of course, introduced after the plaintiff's accident.

61 Certainly the evidence establishes that the provision of interfering gates in saleyards was widespread before the plaintiff's accident, and I referred earlier to evidence Mr Vowles gave about this (paras 35-36 above). Particularly does this appear to have been so in Victoria and South Australia. However, the Dubbo saleyards were not the only saleyards in New South Wales without interfering gates. I referred earlier (at para 41) to Mr Huefner's evidence that it was likely that over half the saleyards in New South Wales had non interfering gates. Mr Vowles gave evidence (T 125, T 334) concerning the top seven saleyards in New South Wales and Mr Huefner returned to this issue in his report of 15 March 2004. Mr Vowles did not accept that Bathurst was one of the top seven yards in New South Wales, but, with that qualification, I do not understand him to have disagreed with what Mr Huefner wrote on 15 March 2004. According to Mr Huefner, and I accept this to be so, the position in the saleyards referred to below is as follows:

(i) there are no interfering or latching gates at Dubbo, Tamworth or Bathurst;

(ii) there are interfering gates on all yards at Wagga and Casino;

(iii) some only of the yards at Gunnedah and Inverell have interfering gates. 62 I conclude then that at the relevant time the provision of interfering gates in yards in New South Wales was common but by no means the rule and certainly it was not as widespread as in Victoria and South Australia.

63 Mr Vowles considered the position in New South Wales was explicable because there was not the new construction work being carried on in that State (T 337). However, yards constructed in Queensland in the '80s and early '90s had interfering gates. These yards were at Emerald Peak Downs and Gracemere. Whilst it was Mr Vowles' opinion that somebody considering new construction work in New South Wales in 1994 ought to have had regard to what was happening in other States, including Queensland, Mr Huefner's opinion was that the defendant acted reasonably in copying the 1975 modules when it carried out the construction work in 1995.

64 Having regard to the assessments I have made of Mr Vowles and of Mr Huefner, it seems to me that it has to be acknowledged that there was room on this issue for reasonable differences of opinion, and their evidence demonstrates such differences, but it is for me to determine whether in all the circumstances the plaintiff has satisfied me that the exercise of reasonable care by the council required that it introduce interfering gates prior to the plaintiff's accident.

65 These saleyards had been in operation since the 1950s and there was no evidence that prior to the plaintiff's accident any other person had been injured at the Dubbo yards in similar circumstances. There was evidence upon which Mr Cranitch relied in relation to prior mishaps and that evidence falls for consideration here:

(i) Mr Barlow said he was aware of other injuries caused by beasts being out of control in laneways (T 147). He referred to an occasion in 1992 or 1993 when he broke his wrist. He said a cow came out of a drafting area. Mr Barlow said he did not even attempt to open his gate but jumped on the fence to get away from her. The cow hit him, propelling him into the air and he fell with his hands outstretched.

It would not seem that the incident which Mr Barlow described would have been avoided by interfering gates because, as he explained the incident, he did not have time to open the gate, so that had there been an interfering gate he would not have had the opportunity of using it to protect himself.

(ii) Mr Morcom gave evidence of cattle escaping down the laneway. He said it happened quite frequently and there was an occasion when a companion broke his leg, although the precise circumstances were not described. Mr Morcom himself suffered an injury four or five years ago when a beast came out of a yard and struck him, knocking him unconscious; but again the circumstances were not described.

In cross examination Mr Morcom was asked these questions and gave these answers: "Q. You are not aware of anyone, leaving aside Mr Barrett, anyone else being hurt at Dubbo as a result of gates opening? A. No, several incidents over the years.

Q. As a result of gates going through 90 degrees? A. Being hit by the gate.

Q. Being hit by a gate full stop, or being hit by a gate because going through 90 degrees? A. Capable of going through 90 degrees, where the actual impact was, would vary from case to case.

Q. Isn't it the position, as you sit there now and conscious of whatever, all the talk that has being on over the years about safety, you are not aware of anyone, apart from Mr Barrett leaving side, you are not aware of anyone being hurt specifically as a result of a gate being pushed through more than 90 degrees? A. No, I can't say that, no.

Q. That's consistent with your recollection that you are not aware of the specific issue of the gates at Dubbo, the suggestion that the gates at Dubbo should be changed that they only go through 90 degrees, you are not aware of that ever having been suggested in the years prior to 1997? A. Not to my knowledge, no." 66 I accept the evidence of Mr Barlow and of Mr Morcom reviewed above. That evidence does establish that harm had been caused by beasts in laneways from time to time, but the evidence does not permit me to find that any one of the incidents described by either of those witnesses would have been avoided by the provision of interfering gates, and their evidence does not establish that any one was hurt in the same manner as the plaintiff. 67 I accept that Mr Morcom voiced concerns to Mr Stanton, as the saleyard manager, when the 1995 extensions were being constructed. His evidence as to the nature of the discussion was imprecise (T 171). Mr Morcom was certainly an advocate for some form of overhead draft, but he did express concern (T 169) that with more pens there could be more agents and more cattle in the one lane. He was asked this question and gave this answer (T 169): "Q. ... What precisely was the safety consideration of having a number of agents working in the one lane? A. Well, they are all working independently and if a beast does happen to break through it is only good luck or good management you get out of the road. You have to sing out. If you had a proper pound to draft out of then you are in a separate region, it would have been a lot safer." 68 Mr Morcom agreed in his evidence that that concern might have been addressed by the provision of a gate that could be locked across the laneway, but his evidence conveys that prior to the plaintiff's accident he never raised with Mr Stanton or the defendant the subject of interfering gates and he is not aware that anyone else did. The Code of Practice earlier mentioned provided for the establishment and maintenance of a Saleyard Advisory Committee, and a study of Exhibit 5 reveals that there was such a committee in existence for the Dubbo yards as a licensing requirement, but there is no evidence that the subject of interfering gates was raised with or considered by that committee before the plaintiff's accident. 69 Mr Stanton was present during the course of the hearing and at one time counsel for the defendant indicated he would be a witness (T 9). No explanation was offered for his not being called. He might have been expected, as Mr Cranitch submitted, to be able to give evidence about a number of relevant matters, including:

(a) whether the matter of safety considerations involved in the 1995 extensions had been raised by Mr Morcom;

(b) whether the issue of safety was raised by Mr Stanton with whoever it was who designed or constructed the 1995 extensions;

(c) his own awareness as to safety considerations and earlier accidents affecting the work undertaken in 1995;

(d) the profitability of the saleyards and cost considerations that would have been involved in the modifications proposed by Mr Vowles. 70 Mr Cranitch submitted, and I accept, that the principle expressed in Jones v Dunkel (1959) 101 CLR 298 is enlivened by reason of the absence of Mr Stanton from the witness box. I am mindful of that absence when finding that Mr Morcom had the discussions with Mr Stanton about which he gave evidence. Further, as Handley JA and Beazley JA said in Commonwealth of Australia v McLean (NSWCA, unreported, 31 December 1996): "The rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default."

However, the principle of Jones v Dunkel does not permit an inference to be drawn that evidence that was not called would have been damaging to the defendant: see the observations of Davies AJA in Ho v Powell (2001) 51 NSWLR 572 at para 76. 71 Whilst I have earlier found that what occurred to the plaintiff was reasonably foreseeable, the magnitude of the risk and the degree of probability that it would occur call for careful assessment in determining whether discharge of the defendant's duty to exercise reasonable care required that it carry out the modifications suggested by Mr Vowles. 72 Those persons who found themselves in the yards and laneways might reasonably be expected by the defendant to be familiar with the handling of stock and to recognise the need to adopt the precaution of not standing behind stockyard gates in the presence of approaching cattle. Typically, visitors could be expected to be licensed stock and station agents and their employees. I reviewed the evidence of awareness of visitors in this category earlier (para 53). 73 Further, if it be assumed that the defendant knew or ought to have known of these events, I am not satisfied that any of the accidents concerning which Mr Morcom and Mr Barlow gave evidence would have been avoided had interfering gates been a feature of the yards at the times in question; and, as earlier recorded, there is no evidence that over a period approaching fifty years during which these busy yards had been operating there had been a similar accident to that experienced by the plaintiff. The above considerations have to be given due weight when determining whether or not the defendant acted reasonably in not introducing interfering gates. 74 Had interfering gates been introduced in the manner proposed by Mr Vowles, this introduction could only have been achieved by reducing laneway width, by approximately 600 mm or a little more. One consequence of narrowing the laneway by over half a metre would have been to place a stockman in the laneway that much closer to a beast also in the laneway in a contemplated by-pass situation, that is at a point where an interfering gate was not being utilised. Mr Vowles and Mr Huefner disagreed as to the importance of this consideration. 75 Mr Vowles wrote on 15 March 2004 (Exhibit H): "Mr Huefner claims that the narrowing of laneways made working with cattle more dangerous to humans. This may or may not be the case. On one hand, there is more room for cattle to pass a handler. However, by widening a lane, animals become far more difficult to control, because the animal perceives there is more space to 'escape' past a handler attempting to block its path. Hence, a wider lane can in fact be more dangerous, as cattle will attempt to force past the handler more often. Additionally, a common practice used by handlers in saleyards when cattle are bypassing is to step inside the line of the selling pen by pushing the gate inwards… This has the effect of taking the handler out of the animals view, and putting the handler safely behind a post. However, the most compelling safety aspect of a narrower lane in the current Dubbo selling pens (ie 2.4 to 2.5 metres) is the ability of the gates to be swung across the lane to interfere, and this can and is done in practice whether the animal being directed into the pen is the first, fifth or last animal to be so directed." 76 In cross examination Mr Vowles was questioned about the above extract: "Q. Now that simple sentence, 'This may or may not be the case', is a considered opinion of yours, isn't it? A. I'm referring there to the fact that if you have a narrow lane, you have control of the animal. There are a number of reasons for that, but the major one which overrides any consideration that you may be drawing here is that the gate must interfere, the gate must interfere and there is no argument with that in my view, absolutely none at all.

Q. See, I am asking you about the sentence where you say, 'This may or may not be the case' and I suggest to you that that was a considered view that you expressed in that sentence? A. Right, well by - there I'm talking - all right, 'This may or may not be the case' refers to the fact that in a laneway of say 2 metres where an animal of extensive height goes past a handler, he is obviously closer to the animal than in a laneway of 3 metres and hence my comment that it may be the case that a - narrowing a laneway is more dangerous. However, I don't believe you should take that statement as meaning that I support wider laneways because if the gate doesn't interfere, it is a very dangerous situation for stock handlers and that is accepted through the industry." 77 In Mr Huefner's opinion, on the other hand, it was highly desirable to maintain the existing laneway width. In his report dated 24 March 2004 Mr Huefner wrote (at p 6): "Vowles concurs that under given circumstances, the narrowing of laneways will increase the risk exposure of handlers. When analysed, there are two 'standard operational' scenarios: 1. The intercept scenario, ie a gate is used to channel a beast into a pen, and 2. The by-pass scenario, ie no gate is used and the animal(s) by-pass the handler. In Scenario 1, where a gate is used, the animal does not perceive an 'escape' route (other than the valid one, ie run into the pen). The marginal lane width difference is therefore not critical other than its impact on the clear width into the pen. With Scenario 2, ie where the animal by-passes a handler, a wider lane (3,000mm) will provide more space for the animal to 'escape' which it will do with less stress than if the space is more restricted, eg 2,500mm width. In consequence, and under normal operational procedures, the wider lane (3,000mm) provides for a less stressful path for the animal and a lower risk exposure to the handler… I'm therefore of the option that: 1. The ideal solution to the safety aspects raised is to have a lane width of 3,000mm (not 2,500mm or 2,400mm) AND have interfering gates. 2. At Dubbo, this solution is not possible without reconstruction costing some $5M. 3. The risk exposure frequency to handlers is significantly increased if the lanes are reduced to 2,500mm cf the current 3,100mm, hence such action is not recommended." 78 In his evidence Mr Huefner said (T 234-235): "Q. What in your professional judgment is the proper answer to the question, whether it's a reasonable judgment call for the operator of saleyards such as Dubbo, given the dimensions in Mr Vowles' proposal, to make the decision that it's preferable to retain a 3 metre width compared to embracing his proposal? A. I think it's highly desirable that the 3 metre width is retained because the risk due to the bypass handlers - handler, is actually quite unacceptable at the 2.4 metre dimension." 79 Mr Huefner went on (T 235): "… In other words, we have two different risk criteria here, one being the interfering aspect and the other one being the bypass aspect. The conclusion that I have come to is that the number of times that an interfering gate is required compared with a number of times that a person - a handler may require the extra width, is disproportionate. The extra width will predominate significantly over the first one." 80 As I understand the above evidence, it was Mr Huefner's view there were significantly more occasions when a handler would require the extra width in the laneway than when he might require the protection of an interfering gate if available. 81 Mr Huefner in cross examination acknowledged that he designed yards at Naracoorte and at Mt Gambier with lane widths of 2.45 metres only. Mr Cranitch submitted that the fact that he had done so was inconsistent with Mr Huefner's evidence reviewed above. In cross examination (T 416-417) Mr Huefner gave the following evidence: "Q. That doesn't seem to accord with the formula that you have espoused in this case, does it? A. It looks like that on the figures but, first of all, (a) it is quite some time ago; secondly, we are in different parts of the country with different animals. I'll explain this a little further. In some, not all, of the Victorian yards that I designed there have been minor changes, not so much to the raceway widths or the laneway widths but to other parts of the facilities to accommodate the different sized cattle and the different cattle behaviours that have been - let's put it this way - put to me over the years by the various customers. So the yards are designed differently for Victoria, marginally differently, in Victoria say from New South Wales and particularly to the west of New South Wales, for example, the Forbes yards, they are at 3 metres and that particular decision was on the prompt of my customer, or Forbes Shire Council or the particular design people that I was dealing with there, and it was provided specifically for the purpose of allowing bypass, the additional safety of the bypass." 82 Notwithstanding the cross examination and the submissions of Mr Cranitch in point, I accept that what Mr Huefner wrote and his evidence in chief reflected his opinion honestly held, and I am not persuaded that such opinion is unsound. 83 For what appear to be historical reasons, stockyards in New South Wales have generally had wider laneways than in South Australia and in Victoria. Whilst I am satisfied that there would have been safety benefits for stockmen referable to the introduction of interfering gates, I do accept that there were advantages from the point of view of safety in maintaining the extra laneway width in a by-pass situation, and to lose this width by introducing interfering gates would have tended to increase the risk to stockmen opposed to passing cattle in laneways. I accept that Mr Vowles and Mr Huefner hold differing views as to the importance of these considerations, but, as I see it, the inevitable loss of laneway width that would have accompanied the introduction of interfering gates was a not insignificant factor responsibly to be weighed against the introduction in 1995 of the modifications central to the plaintiff's case. The defendant could not have provided interfering gates whilst preserving a laneway width of three metres unless the yards were reconstructed at a cost at a cost estimated by Mr Huefner at $5 million (see Mr Huefner's report Exhibit 6), and in my view the exercise of due care plainly did not demand expenditure of that magnitude. 84 I have given close attention to all the evidence on liability in this case and have read the evidence of Mr Vowles and of Mr Huefner several times. At the end of the day, however, after close attention to the submissions of counsel, I am not persuaded that in the failure to introduce interfering gates prior to the plaintiff's accident the defendant failed to exercise reasonable care for the safety of the plaintiff. 85 It follows that the defendant is entitled to judgment in its favour. 86 Notwithstanding the conclusion I have reached on the issue of liability, I propose to shortly record my finding on the issue raised by the defendant that the plaintiff failed to exercise due care for his own safety. 87 Mr Taylor submitted that the plaintiff was guilty of contributory negligence in placing himself behind a gate in breach of an acknowledged safety measure. The plaintiff agreed that it was a basic precaution for any stockman not to stand behind the gate (T 106) and he acknowledged (T 107) that he should not have got caught behind the gate. It was submitted that the fact that he did place himself where he did evidenced a failure to exercise reasonable care. 88 I earlier expressed the finding that I preferred the evidence of Mr Barlow to that of Mr Prentice as to what occurred leading to the plaintiff's injury (para 21). Moreover, I have found that the behaviour of the beast and its approach towards Mr Prentice influenced the plaintiff to do what he did (para 22). I find that the plaintiff acted in an attempt to protect Mr Prentice from harm, and I infer that it was in pursuit of this objective that he put himself in the position of danger where the harm befell him. I find that the plaintiff's behaviour was commendable and courageous and I do not find that he acted unreasonably in pursuing his objective. The defendant failed to prove the absence of due care by the plaintiff for his own safety. 89 I propose to reserve the question of costs to afford the plaintiff the opportunity of advancing any available submissions as to why costs ought not to follow the event.

2. Costs are reserved; the cause is to be relisted for submissions as to costs on a date to be arranged with my associate within the next twenty-one days. **********

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