BARRETT v DUBBO CITY COUNCIL

Ahluwalia v Robinson [2003] NSWCA 175 CASES CITED: Barrett v Dubbo City Council [2004] NSWSC 832 Jones v Bartlett (2000) 205 CLR 166

PARTIES: Patrick Joseph Barrett - Appellant Dubbo City Council - Respondent

COUNSEL: I.D. Roberts SC & M. Inglis - Appellant P.W. Taylor SC & R. Sheldon - Respondent

SOLICITORS: Commins Hendriks - Appellant Phillips Fox - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40864/2004

HANDLEY JA IPP JA BRYSON JA

5 APRIL 2006 PATRICK JOSEPH BARRETT v DUBBO CITY COUNCIL Judgment 1 HANDLEY JA: I agree with Bryson JA. 2 IPP JA: I agree with Bryson JA. 3 BRYSON JA: Mr Barrett appeals against judgment for the defendant given by Studdert J. on 10 September 2004 (Barrett v Dubbo City Council [2004] NSWSC 832) in Mr Barrett's claim in the Common Law Division for damages for extremely severe head injuries which he suffered at the Dubbo saleyards on 20 November 1997. The grounds in the Notice of Appeal dated 4 January 2005 were as follows: 1. His Honour erred in concluding that the exercise of reasonable care for the safety of the plaintiff did not require the defendant to introduce interfering gates.

2. His Honour erred in accepting the opinion of Mr Huefner.

3. His Honour erred in failing to prefer the evidence of Mr Vowles to that of Mr Huefner particularly in view of the fact that Mr Huefner lacked cattle handling experience, and Mr Vowles had considerable experience handling cattle.

4. His Honour erred in accepting that there were advantages from the point of view of safety in maintaining the extra laneway width in a by-pass situation, when the evidence of Mr Huefner in support of that proposition had been significantly diminished in cross examination.

5. His Honour erred in failing to attach sufficient significance to the fact that the defendant failed to call any evidence as to whether or not the safety of workers was considered when the saleyards were modified in 1995.

4 Dubbo City Council owned and occupied the Dubbo saleyards and, in a commercial venture, conducted sales of stock and licensed use of the saleyards to stock and station agents who brought cattle in for sale. In most years Dubbo was the largest saleyards in New South Wales in terms of the number of cattle sold each year, and usually one of the four largest in Australia (Black 40G). Mr Barrett was then manager of the Dubbo branch of the pastoral house Elders, and had held that position for over eight years; so he was very familiar with the layout and equipment and with cattle-handling operations at the saleyards. Elders did not participate in arrangements for the sale to be held on 20 November 1997 in time to take part in the ballot for pens, or in the main cattle sales, but made arrangements at a late stage for cattle to be received, and penned, and to be sold after the main cattle sales occurred; these were a mob of 51 or 53 head from a property south of White Cliffs. Because of his injury Mr Barrett has no memory of the event or the immediately preceding events; he remembers nothing until he regained consciousness at Dubbo Hospital. The principal basis of Studdert J.'s findings about the accident and its circumstances is evidence given by Mr Barlow, another employee of Elders. 5 Dubbo City Council was not in an employment relationship with Mr Barrett. The duty of care upon which the case of negligence against it was based arose from its being the owner and occupier of the saleyards, its providing the saleyards and equipment for the use of persons such as Mr Barrett who handled cattle at sales, and its control over the equipment provided; the equipment established the system of operations to be followed by persons handling cattle. The operation in which Mr Barrett was participating, stated shortly, was that the mob of cattle was held in a large pen; they were cut out from this pen one at a time, by Mr Barrett who controlled the gate; each beast then entered a lane on either side of which there were six pens; beyond the sixth pens the laneway was closed off. The object was to direct each beast into one of these pens, chosen by Mr Barrett, so that the cattle would form suitable sale lots. Gates into the pens formed the sides of the lane. There were two gates to each pen, and they were hinged at about the midpoint of the boundary between the pen and the lane, so that each gate opened outwards into the lane. The gates were hinged so that they could move through 180 degrees in the lane. Two employees of Elders, Mr Barlow and Mr Prentice, were stationed in the lane to handle cattle. When Mr Barrett said which pen he wished a beast to be directed to, one of the handlers would open a gate to that pen so as (largely) to obstruct the lane and to give the beast proceeding down the lane a pathway into the pen; the expected course was that beast would be induced to proceed into the pen by the obstruction to the lane presented by the gate opened most of the way across it, by the action of the handler in holding the gate at an angle, and possibly by other actions of the handler. The handler would stand beside the gate and direct the beast with movements of the hand, or the hat, or with noise. Then the gate would be closed behind it. Only handlers go into lanes. Behind the pens are walkways used by prospective buyers to inspect lots offered for sale. Prospective buyers are completely separated from cattle at all times. Auctioneers use overhead gantries. 6 This operation has inherent dangers because the behaviour of cattle is not completely controllable and cattle may injure handlers in the lane. The danger of injury to handlers is obvious, having regard to the relative weight of a beast and of a person, and the unpredictable and possibly aggressive behaviour of the beast, which is heedless of human wellbeing. Safety of the operation depends on several factors. Handlers must be experienced and adept in handling cattle and in observing and judging what each beast is likely to do. The behaviour of cattle presents a very wide range of possibilities, from docile animals familiar with handlers and stockyards, to cattle which have lived wild for years and rarely if ever seen yards or handlers until shortly before they were brought to the saleyards. Cattle raised on extensive holdings are relatively more likely to behave aggressively or unpredictably. White Cliffs in the far west of New South Wales is a region where cattle holdings are typically extensive. An animal which is stressed and is separated from a mob is likely to behave unpredictably. Some breeds of cattle tend to be docile, while other breeds are characteristically difficult to handle. The safety of the handler depends largely on the handler's ability to avoid the beast in the lane, by keeping out of the animal's way and as a next and ready resort, by climbing up the rails which form the sides of the lane and are about 1.5 m high. In later construction it became usual for railings to be higher than 1.5 m. Climbing the rails does not avoid all risk but can remove the operator's head and body from most prospects of collision. There is still risk associated with exposure of legs and feet, and with descending from the railing; Mr Barlow once broke his wrist by falling over railings into a pen. 7 A prominent danger to handlers is that a beast may collide with an open gate, and that in turn the gate may strike the handler. This is what, in the event, happened to Mr Barrett; a rail of the gate struck him in the forehead, he fell and was further injured when his head struck the concrete floor. It is well recognised by people who handle cattle that a handler should not be behind a gate: this is "a basic precaution" of which "everyone is aware" (Red 109 [53]). 8 Studdert J. found (Red 95 [7]): 7 …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. 9 Studdert J. gave (at [9] - [13]) an account of the effect of evidence given by Mr Barlow about how Mr Barrett's accident happened. At a later point [20] and [21] Studdert J. accepted this evidence. Studdert J. said: 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 Allen, he was just going too quick, the beast was going [too] quick for Allan to open his gates."

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 [the plaintiff] 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." 10 The gate referred to by Mr Barlow as the "returning gate" is the second gate into the same pen. Two gates, hinged about the mid point of the boundary, form the boundary between the pen and the lane. The first gate can be thought of as upstream and the second or returning gate as downstream. Mr Prentice was unable to open the first gate in time and the beast passed down to the end of the lane; he then proceeded to open the returning gate, to guide the beast into the pen as it came back up the lane; Mr Barrett's intervention and his accident related to the second or returning gate. If this had been an interfering gate, and if it had been fully open before the beast collided with it, Mr Barrett, although behind the gate, would not have been injured as the gate would have been restrained by the rails on the opposite side of the lane (Red 108-109 [50]). It was Mr Barlow's evidence, which the trial judge accepted, that had the gate locked across the lane Mr Barrett would not have been struck. 11 Mr Prentice was then about 78 years old, and he had experience working for Elders at the Dubbo saleyards but had been relegated to handling sheep and was only called on to assist with cattle because Mr Barrett was short of handlers (Red 98 [15]). Mr Prentice's account of the event differed from that of Mr Barlow in some respects, but his Honour, for reasons which have not been challenged on appeal, accepted the evidence of Mr Barlow. His Honour made these findings: (Red 99-100 [21]-[22]) 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 inferences 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. 12 In the events which led to Mr Barrett's injury, several sources of risk operated together and produced a very dangerous situation. The circumstances were extreme in several respects; the beast was very unruly and ran down the lane very quickly, too quickly for Mr Prentice to open the gate to the pen into which Mr Barrett wished the beast to be directed; Mr Prentice notwithstanding his experience was not an adept handler and Mr Barrett perceived a need to take control of the gates to the pen where Mr Prentice was; the beast returned up the lane, again at speed, and collided with the gate while Mr Barrett was in a dangerous position behind the gate. 13 At the trial, but not on the appeal, Dubbo City Council contended that there was contributory negligence on the part of Mr Barrett. Studdert J.'s disposition of this part of the case was as follows: (Red 122-123 [87]-[88]) 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. 14 In effect Studdert J. saw Mr Barrett's conduct as conduct in the agony of the moment which should not be treated as contributory negligence. There is no reason to reconsider this conclusion, or to doubt it. 15 The dangers of the operation of drafting cattle into pens using the equipment in this part of the Dubbo saleyards are obvious and impressive. Only a person with experience in handling cattle and using the equipment would or should be expected to take part; but even so, the dangers in using the equipment are clear. There are other ways of designing and constructing saleyards. In the most modern equipment in use there is grade separation, handlers are not on the same level as cattle, gates are operated by pneumatic equipment, and there is no practical possibility of a beast colliding with a handler. After the event an overhead draft was constructed at Dubbo saleyards and completed in July 2003. This greatly improves efficiency and speed of handling; Mr Morcom, a stock and station agent in Dubbo for 30 years, said that with the overhead draft he was able to draft 400 steers in half an hour whereas earlier he was only able to do 100 steers an hour. This was a recent innovation in design; the first record of advertence to it in Dubbo dates from 1 December 1998, and inspections by council staff of overhead cattle drafts at saleyards in Queensland were the subject of a report of 30 January 2001. At first instance it was contended that Dubbo City Council was negligent in not providing equipment of this kind; Studdert J. rejected this contention and it was not pursued on appeal. 16 Another kind of equipment, which was in use in a number of large saleyards in eastern Australia in 1997, involved the use of interfering gates. Interfering gates are longer than the width of the lane, so that when a gate is fully open, the end of the gate is restrained by the railings forming the opposite side of the lane, and if a beast collides with the open gate the gate will not swing further, and it is not possible for the beast to proceed further down the lane; its only path is into the pen (unless of course it turns around and proceeds back up the lane). An interfering gate reduces the risk to a handler of being behind the gate; if the gate is in its fully open position and is restrained by the rails on the opposite side, it is no longer unsafe to be behind the gate. In this position the gate becomes a protective barrier for the handler, and the handler is not exposed to the risk of remaining in the lane while the beast proceeds along it, or of climbing the rails. An interfering gate would open to something less than a right angle, to 70 or 80 degrees, and the angle could tend to induce the beast to proceed into the pen. In a variant of an interfering gate, the gate is as wide as the laneway, opens to 90 degrees and is restrained when it reaches that position by a latch on a post on the opposite side of the lane. 17 Adopting interfering gates has design implications relating to the kind of hinges used and the opportunity to open the gate inwards into the pen; it is sometimes useful for a handler to enter a pen to avoid danger in the lane; depending on whether there are already cattle in the pen. In the event in question, Mr Barlow removed himself from the lane by entering an empty pen. 18 There is no room for doubt or debate that Dubbo City Council as owner and occupier of the saleyards in the commercial context of their use had a duty of care to persons such as Mr Barrett who operated the equipment. Studdert J. found that any reasonable person in the position of Dubbo City Council would have foreseen, in 1997, that the failure to provide interfering gates involved a risk of injury to a person in the position of Mr Barrett: (Red109-110 [52]-[55]) 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.

19 The claim about Dubbo City Council's scope of duty and breach of duty upon which Studdert J. disposed of the proceedings, and under consideration on appeal, was that Dubbo City Council should have re-equipped this part of the saleyards with interfering gates, and should have done so before Mr Barrett was injured in 1997. Studdert J. found: (Red 95 [5]-[7]) 5 …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 lay out 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 open 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. 20 Mr Huefner is an expert witness called on behalf of Dubbo City Council. 21 Studdert J. directed himself as to the scope or content of the duty of care in these terms: (Red 110 [56]) 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.

22 Paragraph [93] of the judgment of Gaudron J. in Jones v Bartlett (2000) 205 CLR 166 at 193 illustrates the distinction between a duty to make premises as safe as reasonable care and skill on the part of anyone can make them, and a duty to take reasonable care to put and keep premises in a safe state of repair; the landlord's duty was the latter. Jones v Bartlett raised an issue of a kind which recurs in negligence cases relating to tenanted premises, in which the premises were adequately equipped according to the standards of the time when they were constructed, but do not accord with regulations or practices which apply to later construction. Compare Ahluwalia v Robinson [2003] NSWCA 175. In the judgment of Gleeson CJ in Jones v Bartlett his Honour found: 54. The alleged negligence of the respondents was said to consist of an omission, rather than an act. The omission was said to be the failure to have an expert assessment of the premises at the time of the lease, in circumstances where it was supposed that such an assessment would, in turn, have resulted in a recommendation to replace the glass in the door (an unwarranted supposition). That occurred before the lease was entered into. Consequently, attention was directed to those parts of the judgments in Northern Sandblasting which dealt with a duty to arrange for an inspection before lease.

… 57. There is no ground in principle for imposing upon the respondents an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household. The critical question is as to what is reasonable. The judgment of the Full Court, with which I agree, to the effect that there was no failure to take reasonable care, was a judgment of fact. It cannot be circumvented by an attempt to formulate the legal duty with greater particularity, in a manner which seeks to pre-empt the decision as to reasonableness. 23 Much of the expert evidence was directed to whether it was practicable to modify the saleyards so as to provide interfering gates. It was not contended that the 115 pens constructed in the 1950s could or should have been modified to provide interfering gates. It was contended that the 88 pens constructed in 1974 or 1975, which included the area where Mr Barrett was working and was injured, and all pens constructed later, should have been modified so as to provide interfering gates. Evidence and findings showed that by and before 1997 it had become good practice in designing and constructing saleyard gates to provide interfering gates. It was Mr Vowles' evidence that there had not been any saleyards built in Victoria or South Australia, to his knowledge, since about 1980 which had not used interfering gates. Some saleyards with interfering gates were constructed before the 1980s. Some yards constructed in Queensland in the 1980s and early 1990s had interfering gates. In November 1997 there was no industry standard of any kind in New South Wales which referred to interfering gates. In the Code of Practice for Saleyards in Victoria, issued by Livestock Saleyards Association of Victoria Inc. in 1995 and amended in December 1996 is the following: (Blue 3/704) 4.05 Selling Pens .. For cattle, new yards should allow for entry and exit gates from the pen to the cattle lane, the gates being at least 2400mm in length and hinged to enable the gate to contact the other side of the lane. The National Standard for the Construction and Operation of Australian Saleyards, issued in 1998 by National Saleyards Quality Assurance Ltd, are not obligatory for existing saleyards. It provides: 1.2.7 Selling Pens " Pen Gates - 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." 24 The yards constructed at the Dubbo saleyards in 1995 did not follow this practice; the 1975 modules were used. However the accident did not happen in the 1995 yards; Mr Barrett's case depends upon establishing that there was negligence in not re-equipping the part of the saleyards constructed in the 1970s.

25 Studdert J. considered, at length and with a careful review of the expert evidence, whether exercising reasonable care required that Dubbo City Council provide interfering gates; (Red 110 [56] and following). I do not understand that it was contended on behalf of Mr Barrett that by 1997 it had become the practice for persons conducting saleyards to modify existing saleyards to provide interfering gates; or indeed that anyone who conducted saleyards had in fact done so. The expert evidence on behalf of Mr Barrett pointed rather to the saleyards in eastern Australia where interfering gates had been installed in new construction in recent years, and to the feasibility in terms of cost of modifying the pens at the Dubbo saleyards which had been constructed in the 1970s. It was not, or in any event on appeal it was not Mr Barrett's case that the old saleyards should have been demolished and new saleyards in accordance with what was by then good practice for new construction should have been built in their place; that would have cost in the order of $5 million and was not feasible, as Studdert J found. On the other hand Studdert J. found to the effect that it was practical and economically feasible to introduce interfering gates in the area where the accident happened before November 1997 (Red 110-111 [57]-[59]): 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.

26 The range of figures given by Studdert J. reflects a range of possibilities about matters of detail in carrying out the modifications, with which expert evidence dealt at some length; these included the arrangements for hinges of gates, and needs which were said to arise in various contingencies to provide some or all new gates instead of existing gates. The figures in the Trial Judge's findings relate to modifying all the pens built in 1974 and later; the pens built in the 1950s, which comprised about 40% of the total, would remain as they were. It was the position supported by both experts that modification of the pens constructed in the 1950s was not practicable. 27 Other findings of fact which Studdert J. made while addressing the cost and financial feasibility of making the modifications were these: (Red 110-113 [60-63]

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. 28 These findings establish that by 1995 interfering gates were the industry standard for good saleyards design for new construction, and that the part of the Dubbo saleyards built in 1974 or 1975 could have been modified to incorporate interfering gates, without causing major disturbance and at a cost which was within the financial resources of Dubbo City Council associated with the saleyards. The modification would have reduced recognised risks of injury to handlers and made the saleyards a safer place for handlers to work in. Danger of personal injury where handlers are in close proximity to cattle would continue; this does not detract from considerations favouring any available mitigation of the risk. 29 Studdert J. said:

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.

30 Studdert J. also found: 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. His Honour went on to review evidence relating to accidents and injuries caused by beasts being out of control in lanes; and found that these events would not have been prevented if there had been interfering gates. There was further evidence about injuries, which Studdert J. reviewed. In his Honour's view the evidence established that beasts in lanes had caused harm from time to time, but not that anyone was hurt in the same manner as Mr Barrett. 31 Studdert J. also reviewed evidence relating to concern expressed by Mr Morcom, an agent with 30 years of experience at the Dubbo saleyards, to Mr Stanton, the saleyards' manager, when the 1995 extensions were being constructed. As well as strongly favouring an overhead draft, Mr Morcom expressed other concerns with safety considerations where agents, and any number of agents, worked in a lane. There was no evidence that interfering gates had been advocated to Mr Stanton or to the Saleyards Advisory Committee which the Meat Industry Authority's Code of Practice required Dubbo City Council to maintain. His Honour commented, in my view correctly, on the inferences available from the circumstance that Mr Stanton was in a position to give evidence but did not do so. In the absence of evidence from Mr Stanton, the inference is in my opinion readily available that Dubbo City Council did not give actual consideration to whether or not interfering gates should be adopted in new construction in 1995, or to whether or not then existing parts of the saleyards should have been modified. I do not regard this as an important consideration; what is important is what a person in Dubbo City Council's position ought reasonably to have done. I would not uphold Ground 5. 32 Studdert J. reviewed and assessed the magnitude of the risk and the degree of probability that it would occur (Red 117 [71]-[72]). His Honour found: (Red 117 [72])

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.

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.

34 Studdert J. then considered, at some length, the effect on the magnitude of the risk and the degree of probability that it would occur which would have been produced by alterations in the equipment and by installing interfering gates. The effect on risk of the width of lanes received much attention in expert evidence, and also in argument, and although it is important the course of argument may have accorded it apparent importance in excess of its true importance. In principle the debate dealt with the safety implications of reducing the width of the lane from approximately 3000 mm by approximately 600 mm or a little more to approximately 2400 mm. (In detail these figures are not exactly correct as the widths of the pens are not completely regular, nor are the lengths of the gates. A design by Mr Vowles provided for the lane width to be 2500 mm. Treatment of the existing width as 3000 mm and the reduced width as 2400 mm adequately exposes the matter under consideration. There are small anomalies in references to these dimensions.) Studdert J. found: (Red 95 [7]) 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.

35 The smaller gates at 1800 mm could not be used as interfering gates even if the laneway were 2400 mm. This is not a major anomaly; some new gates might be needed, but what was principally involved was lengthening the side rails of pens by 600 mm so as to bring the sides of the pens and the gates 600 mm out into what theretofore was laneway. Work of this kind was accommodated within the cost which would not have exceeded $200,000; the cost is of a completely different order to the entire reconstruction which was spoken of by Mr Huefner as costing some $5 million. 36 The consequences of narrower lanes for the magnitude of risk and degree of probability of its occurring were reviewed by Studdert J. His Honour said: [Red 118 74] 74 ... 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.

37 On appeal Senior Counsel for Mr Barrett challenged Studdert J.'s finding that loss of laneway width was a not insignificant factor, to be weighed against the introduction of modifications to introduce interfering gates. It was contended that Studdert J. should not have accepted Mr Huefner's opinion in this regard. 38 Mr Vowles has extensive experience in rural industry including large stock industry, planning, design, management and supervision of projects relating to stock handling facilities including saleyards; with experience in cattle behaviour. His extensive experience is well illustrated by the name of the company of which he has been Managing Director since 1985 - Kattle Gear Australia Pty Ltd. 39 In Mr Vowles' evidence, reviewed by Studdert J. at paras [75]-[76], in the wider lane there is more room for cattle to pass a handler but cattle become more difficult to control because the beast perceives that there is more space to escape past the handler. Mr Vowles also referred to the opportunity of the handler to step inside a selling pen by pushing the gate inwards. Mr Vowles acknowledged that in a narrower lane a handler was relatively closer to a passing animal. In Mr Vowles' evidence the most compelling safety aspect of a narrower laneway was the ability to use interfering gates. In Mr Huefner's evidence, a wider lane width was significant in what he called the bypass scenario, when no gate is used and the beast passes the handler, as a wider lane would provide more space to escape, with less stress to the beast. In Mr Huefner's view the ideal solution to safety aspects was to have the lane 3000 mm wide with interfering gates, but this was not possible without reconstruction costing some $5 million and "The risk exposure frequency to handlers is significantly increased if the lanes are reduced to 2500 mm …".

40 Considerations put forward by Mr Vowles in relation to the safety of laneways were to these effects. Animals are more difficult to control in wider lanes because the animal perceives there is more space to escape past the handler who is attempting to block its path. Three metres is the usual lane width and the current practice in large saleyards in New South Wales; Wagga Wagga at 2.3 m is an exception. The 3 m laneway width was established when larger mobs of cattle were drafted, and cattle are now drafted into smaller mobs which can be accommodated in a narrower laneway. There are several aspects of advantage for interfering gates which outweigh considerations relating to the width of the laneway. Mr Vowles' evidence, in a passage from his Report which Studdert J. set out at para [75] of the judgment, and in passages in evidence which Studdert J. set out at para [76], contained acknowledgement that a narrower lane increases danger for handlers, more than balanced out in Mr Vowles' view by other considerations. As an epitome of Mr Vowles' views, there is disadvantage in a narrower laneway but providing interfering gates has advantages which outweigh whatever other advantages and disadvantages there are related to the width of the laneway. On the other hand, as an epitome of Mr Huefner's position, which was more complicated in detail, narrowing the laneway means less space in which an animal can bypass a handler; this consideration is qualified by what Mr Huefner said was "the absolute fundamental cardinal rule in saleyards is in an emergency you climb out, you don't go sideways". (Black 200). 41 Mr Huefner produced a calculation of risk exposure and frequency and attempted to determine some rules of width; this part of his evidence was not noticed in Studdert J.'s reasons. His Honour did not adopt, endorse or refer to Mr Huefner's purported detailed demonstration of the safe width of a lane, and his Honour's conclusion (Red 122 [83]) - "… 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" is a modest conclusion and can be supported by pointing to passages in Mr Vowles' evidence. This conclusion was not the point of decision, but was among the matters to which Studdert J. had regard in reaching the point of decision: "… 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." 42 It was contended to the effect that Mr Huefner's opinion as given in evidence about laneway width was anomalous having regard to designs he had himself made. Mr Huefner was confronted in cross-examination with the fact that he had twice designed yards (at Naracoorte and Mt Gambier) with a lane width of 2450 mm, and he explained this, and other occasions when he had designed yards with 3000 mm lanes, in terms of what he had been told by customers in different places about the characteristics of the cattle handled there. It does not appear to me that there are inherent reasons or strong reasons for regarding the explanations he gave for his having designed narrower laneways on some occasions as unsatisfactory or not correct. In any event, it is not a test of the validity of his opinion that he has not always behaved in accordance with it himself (if it were established that he had not). This supposed anomaly produced no expressed effect on Studdert J.'s reasons, and I see no error in this respect. 43 It was contended that Mr Huefner's evidence was so weakened by his lack of relevant qualifications that it should not have been preferred to that of Mr Vowles, when dealing with width of the laneway and the factors which affect width. The essential shortcoming was Mr Huefner's lack of relevant experience of cattle and their behaviour. 44 Senior Counsel for Mr Barrett contended that Studdert J.'s findings were "largely based on acceptance of Mr Huefner's evidence that the introduction of interfering gates and the inevitable loss of laneway width would increase the risk to stockmen opposed to passing cattle in the laneway …". I do not read his Honour's reasons in this way; to my reading the conclusions were not largely based on this matter, although they were based, among other things, on regarding the loss of safety advantages in maintaining extra laneway width in a bypass situation as a not insignificant factor, to be weighed when considering the introduction of modifications in 1995. This fell well short of giving the consideration the prominence which the submission attributes to it, and well short of complete acceptance of Mr Huefner's evidence and his position about the significance of lane width. 45 Although the implication of installing interfering gates on lane width is obviously a relevant and important matter, it appears to have assumed a centrality in the adduction of expert evidence and in the argument of counsel which was in excess of what was appropriate, and in excess of the significance Studdert J. accorded to it. If Mr Barrett were to succeed he is required to obtain a finding that a reasonable person in Dubbo City Council's position would, by November 1997, have stopped using the equipment including the gates which had been installed and in use since 1974 or 1975, and would, with expenditure, have modified the yards so as to conform with what had become design practice for new construction; and would have done so although there was no experience of injuries being caused by not having interfering gates, some risk of injury would continue to be foreseeable if the modification took place, and the activity was generally dangerous. 46 The equipment had been in use for over 20 years and could still be operated effectively, and its use was not known to have given rise to any actual event of the kind which installing interfering gates would prevent. It must be a rare event that equipment which is still in working order is taken out of use because improved safety features have come into use for new installations, where there is no perceived need for a new installation and there is no actual experience of accidents. 47 Mr Barrett's case did not include any event or circumstance which might be thought of as calling on Dubbo City Council to consider whether it should continue to use the yards as constructed in 1974 and 1975. An example might be the issue of some standard, even if not legally binding or even if not in New South Wales but elsewhere in Australia, which not only required interfering gates in new construction but also required that existing yards be reworked so as to provide them; there was no such event. Another example might be an actual instance where some saleyards with large operations did modify their existing gates. A further example might be an accident and injury caused by the use of non-interfering gates, at the Dubbo saleyards, or for that matter elsewhere. In seeking to make out a case such as Mr Barrett put it would have been useful to prove any fact or circumstance which would have brought reworking of the pens and gates under the consideration of a reasonable occupier. It is not legally necessary that there be such an event or circumstance; in concept, developments in industry practices and technology could make it clear that earlier practices and technology, involving dangers which had earlier been acceptable, would not be continued by a reasonable person. Nor is it necessary for Mr Barrett to establish an exact point of time at which the change should have been made. Some precipitating event establishing a point of time would have been a useful demonstration if any such event had happened.

48 Mr Huefner has long practical experience as an engineer, extending back to 1963 in Local Government, where he held several responsible positions; and from 1971 he has practised as the Principal of his firm of Consulting Engineers. He also has relevant formal qualifications. His experience includes much experience over decades in the application of engineering skills to livestock handling, and in his Report he listed projects relating to livestock on which he had worked from 1971 onwards. These related to saleyards, and to many other projects relating to handling livestock, including many relating to cattle. He has done this work all over Australia. He has also done engineering work on meatworks and other rural projects. He does not have Mr Vowles' advantage of having actually handled cattle himself. Mr Vowles was impressively well qualified by experience over a long period, although not so long as Mr Huefner. Mr Huefner's professional career has given him full opportunity to learn the realities of handling cattle in saleyards. It was not, in my opinion an error of fact to have regard to his opinions. Indeed, much that Mr Huefner said seems not to have been relied on: Studdert J.'s findings fell short of full acceptation. 49 Studdert J's conclusions were as follows: (Red 121-122)

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.

50 In my understanding this is a decision of the kind described by Gleeson CJ in Jones v Bartlett at [57] which I set out above; it is a judgment of fact on the question of what is reasonable. The point of decision, and the substantial point of debate on the appeal, was whether the magnitude of the risk and the degree of probability of its occurrence meant that the reasonable response to the foreseeable risk was to modify the saleyards so as to provide interfering gates. In my opinion Studdert J.'s disposition was correct. 51 In my view Studdert J.'s conclusion is strongly supported by an element to which his Honour referred, that is that although handling cattle in this way obviously is and is well known to be dangerous, and in particular the danger of standing or being behind a gate with which a beast might collide was well-known, by Mr Barrett as well as by others, no evidence shows any actual experience of an injury suffered at the Dubbo saleyards, or for that matter anywhere else, in circumstances like those in which Mr Barrett was injured. Other important considerations are that no industry standard or industry practice required existing saleyards to be modified, and there was no proved instance of reworking old saleyards so as to modify them and provide interfering gates. Saleyards in New South Wales, including the leading saleyards, typically had many non-interfering gates as well as many interfering gates, and if there had been a practice of modifying or replacing them, it is to be expected that events which showed that that was the practice would have been proved. This is not a conclusive consideration, as finally the decision on what should reasonably have been done is for the Court, and usual or even universal practice is not necessarily reasonable; yet the consideration is an important one, in my judgment. 52 I would not uphold any of the Grounds of Appeal. In my opinion the Court of Appeal should order: Appeal dismissed with costs.

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