GORDON v ROSS

Issues 17 The factors relied upon by the plaintiff to establish negligence were, in broad terms, as follows:

(a) the temperament of the cattle on the day in question was described as "stirry", meaning that their behaviour was somewhat unpredictable and that they were difficult to manage;

(b) the third employee on the station, Mr Dodd, was unavailable that day, so that there were only two men to undertake the drenching;

(c) the structure of the round yard was such that it tended to exacerbate the temperamental behaviour of the cattle, and

(d) there was no pressing necessity to undertake the drenching on that afternoon. 18 The trial judge made factual findings in favour of the plaintiff on each of these matters. His Honour held, in those circumstances, that a risk of injury of the kind which occurred to the plaintiff, was reasonably foreseeable and could have been avoided by not undertaking the drenching, or by ensuring that the assistance of a casual employee was obtained, in the absence of Mr Dodd. Neither step would have caused significant financial detriment to the defendant. The failure to take either step materially contributed to the injury for which the defendant was therefore liable. 19 The major challenge with respect to liability (grounds 1-4 and 7) concerned the finding that the defendant was negligent in failing to employ a third person to assist with the drenching and that that failure materially contributed to the injury suffered by the plaintiff. It is convenient to consider first the relevant legal principles and then deal with a question relating to evidence. 20 The major factual issue raised on the appeal concerned the finding of the trial judge with respect to the temperament of the cattle. At trial the plaintiff had relied in part upon a discussion he had had with the stock and station agent, Mr Maher, in 1999 in the course of which Mr Maher had made some comments on the temperament of the cattle, which the plaintiff recorded in a file note. Ground 6 in the amended notice of appeal challenged the admission of that document as a business record pursuant to s 69 of the Evidence Act 1995 (NSW). That issue will be addressed before dealing with the factual findings which were in part based on it. 21 Ground 5 challenged his Honour's finding that the cattle were "stirry" on 4 October 2000 and it is convenient to deal next with the challenge to that factual finding. 22 The remaining issue with respect to liability (ground 8) was a challenge to the conclusion that the manner in which the plaintiff sustained his injuries was reasonably foreseeable. 23 Grounds 9 and 10 challenged his Honour's finding that there was no contributory negligence on the part of the plaintiff. 24 The remaining grounds of appeal (11-16) concerned the award of damages and will be dealt with together.

(1) Breach of duty and causation: legal principles 25 There is, as Gaudron J noted in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 422, a close relationship between a finding of breach of duty and a finding of causation of harm. At 421-422, her Honour stated: "There are two aspects to the question whether performance of a duty would have averted the loss or injury suffered. The first is the general sufficiency of the duty to avert or prevent harm of the kind in issue. The second involves a consideration of what would or would not have happened in the particular circumstances of the case. As has been seen, it is not always necessary to consider the second aspect of the question. And it is rare, indeed, that it is necessary to consider the first aspect. In the first place, proceedings are not usually brought for breach of duty that is not or would not have been efficacious to avert or prevent the harm suffered. And so far as general sufficiency is involved in the question of causation, there is usually no reason to separate or distinguish the question of breach of a common law duty from that of causation. That is because a duty is imposed by the common law by reason that it is a precaution which a reasonable person in the position of the person sued would have taken to prevent a foreseeable risk of harm of the kind suffered. Thus, questions of the sufficiency of the precaution to avert the harm are inevitably subsumed in the finding that there was a duty: a precaution is not classified as 'reasonable' unless it can be said that its performance would, in the ordinary course of events, avert the risk that called it into existence." 26 In an earlier passage, referred to in the passage quoted above, her Honour had stated (at 420-421): "And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury." 27 The result may thus be to reformulate the question as one which focuses on the content of the duty, rather than causation. However, that does not assist in limiting the analysis required in the present case, or perhaps in many cases where the real issue is the likelihood of the suggested precaution averting the harm in fact suffered. 28 In the present case, not merely was the system proposed challenged as one which would not have prevented the accident, but the foreseeability of the risk which eventuated was also challenged: see ground 8. Accordingly, it will be necessary to consider, following discussion of the findings of fact, the question whether the risk which materialised was reasonably foreseeable in the circumstances of the case. 29 The inter-relationship between questions involving breach of duty and questions of causation were noted by Stephen J in Quigley v The Commonwealth (1981) 55 ALJR 579. Dr Quigley was injured whilst seeking to carry out a quarantine inspection on a Japanese tuna fishing boat in Sydney Harbour. The question was whether his employer (the Commonwealth), in fulfilment of its duty to take reasonable care for his safety, should have provided an additional deckhand on the customs vessel to help him in boarding the ship to be inspected. Dr Quigley was successful before a jury, but the verdict was overturned on appeal. The High Court dismissed his appeal, Murphy J dissenting. In a joint judgment, Mason and Aickin JJ held that there was evidence upon which the jury could conclude that the employer's duty required that it provide a second crew member to assist the appellant when he was boarding ships: 55 ALJR at 582. (Murphy J was of a similar view.) However, four members of the Court held that the appellant's own evidence that he did not seek assistance from another person on the customs vessel as an observer, and would not have sought assistance at his second attempt to board the trawler (during which he was injured) prevented him succeeding on his claim. Stephen J (and Wilson J in slightly different terms) held that this latter evidence also bore upon the question of whether there was any breach of duty. His Honour referred to the comment by Lord Keith in Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 at 756-7 that questions of breach of duty and of causation "to some extent run into one another": 55 ALJR at 581. In Quigley, a significant fact was the availability of assistance and the failure of the appellant, who was experienced in boarding vessels, to ask for help. Clearly that evidence was capable of going to both issues. If an experienced employee, in a position to exercise judgment as to how to go about a task, has assistance available to him and does not use it, it may be difficult to establish that a reasonable employer, conversant with the particular circumstances, was acting unreasonably in failing to provide additional assistance. At the second stage, in terms of causation, the same evidence would suggest that the employee would not have made use of the assistance had it been available, so that the provision of assistance would not have affected the outcome or, in the terminology adopted by Mason and Aickin JJ, would not have "obviated the risk of injury": 55 ALJR at 583. 30 There are, of course, significant differences between the facts in Quigley and the present case. In the present case, the circumstances would not have involved the plaintiff making a decision as to whether or not he would avail himself of assistance. 31 The reference in Quigley to obviating the risk of injury raises a further possibility, that a finding of a material reduction of risk may not be adequate as a finding of causation, or the effectiveness, and thus the reasonableness, of the proposed precaution. In Chappel v Hart (1998) 195 CLR 232 at 244, McHugh J stated: "Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not others factors also contributed to that injury occurring." 32 Although McHugh J was in dissent in Chappel, that passage was subsequently cited with approval in Naxakis v Western General Hospital (1999) 197 CLR 269 by Gaudron J at [31] and by Callinan J at [127]. Similar principles were adopted by Gummow J in Rosenberg v Percival (2001) 205 CLR 434 at [88]. Kirby J adopted similar principles in Chappel at [93] (sub-par 8), affirmed in Naxakis at [76]. See also Copmanhurst Shire Council v Watt [2005] NSWCA 245 at [61]-[65], referring in the last paragraph to a passage in the judgment of McHugh J in Commissioner for Main Roads v Jones (2005) 79 ALJR 1104 at [26]. 33 There is something curious about the proposition that a plaintiff must establish that, if the precaution had been taken, the injury would not have eventuated. The risk against which a precaution should reasonably be taken is not necessarily a risk involving a probability of the harm occurring. A foreseeable risk may materialise, even absent precautions, in only a tiny fraction of a relevant category of cases. Where, as in the present case, it occurs because of the unpredictable conduct of an animal, it may make good sense to say that a particular precaution will materially reduce the risk, but very little sense to say that, on the probabilities, the precaution would have prevented the harm occurring. If a material increase in a risk which materialises is sufficient to establish a breach of duty, a material decrease in the risk should be a sufficient test of the effectiveness of the precaution in question, in order to justify both a duty to take the precaution and to satisfy the test of causation in circumstances where the risk has eventuated. This conclusion is consistent with the language adopted by McHugh J in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [34], where his Honour spoke of a defendant who would reasonably "have foreseen and taken steps to eliminate or reduce the risk that caused harm to the plaintiff" (emphasis added).

(2) Admissibility of file note 34 The contents of the file note will be discussed below, but in substance it records an assessment by Mr Maher, an experienced stock and station agent, that there was a problem with their temperament. Mr Maher had been the defendant's selling agent since about 1968: Tcpt, 19 May 2004, p 132. The document (Ex K) set out, at least in part, a record of representations by Mr Maher as to the temperament of Glengowan cattle. The plaintiff himself did not give evidence of the representations in terms, in his evidence in chief. However, he did give evidence that the notes recorded a conversation he had with Mr Maher and in particular contained "what Mr Maher said to me": Tcpt, 18 May 2004, p 106. He then gave the following evidence: "Q. And what was your purpose in recording what Mr Maher told you? A. Well because … he had such a big part to play in the sale of stock on 'Glengowan', he was interested in ensuring that stock that were sold and for which he derived commission … were presented for sale in as good a condition … as we could achieve. Q. And from the point of view of managing Glengowan on behalf of Mr Gordon did you regard these notes as important for future management? A. Absolutely, yes." 35 The legal argument which ensued, following which the notes were admitted, is not in evidence, nor does the transcript reveal the bases upon which objection to the tender was maintained. The written submissions on the appeal raised complaints that there was:

(a) no evidence given by the plaintiff as to when Exhibit K was prepared; and

(b) evidence that the notes were not shown to Mr Gordon or any other employee, but were notes for the plaintiff's "personal use". 36 Section 69 of the Evidence Act 1995 (NSW), so far as relevant, provides: 69(1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person … in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record; and (b) contains a previous representation made or recorded in the document in the course, and for the purposes of, the business." 37 No great attention was paid in the hearing of the appeal to the nature of the representation or the personal knowledge of Mr Maher. On the other hand, the condition that the record be contemporaneously created, implicit in the first limb of the challenge, is not to be found in s 69. Rather, the section assumes that the status of the document as a business record will give sufficient assurance of its reliability for it to be admissible. Its weight may no doubt need to be carefully assessed, if it is shown to have been made some time after the representation recorded was conveyed. In any event, following admission of Exhibit K, the plaintiff was cross-examined in the following terms (Tcpt, 18 May 2004, p 107): "Q. This was a document you prepared, well you didn't prepare it in the yards, did you? A. No I prepared it that night when I went home. Yes I wrote down while it was nice and fresh in my mind everything that Jim Maher had said to me at Morrisvale yards that afternoon."

The first ground of challenge raises an irrelevant factual issue and one which is in any event not made good. 38 The second ground of objection raised on appeal was that the document did not form part of the records of the business managed by the plaintiff for the defendant. The distinction sought to be drawn was between a set of notes kept by the plaintiff for his own purposes and those which might be used by "the employees on 'Glengowan'" or be shown to the employer. However, this challenge is based on a false dichotomy: the plaintiff himself was an employee on Glengowan. The real question was whether the record was kept by the plaintiff in the course of or for the purposes of the business, within par (a) of s 69(1), and whether it contained a representation recorded in the course of, or for the purposes of, the business. There is some overlap between the two parts of sub-s 69(1), but for present purposes, nothing turns on that. The plaintiff gave evidence that he made the notes for the purposes of future management of Glengowan, evidence which would seem unassailable when the contents of the notes are considered. They were clearly prepared for his personal use, but in his occupation as manager; they were not for "personal use" in the sense that a plan for a future holiday might be. 39 Whether any other form of objection was raised, based on the precise scope and relevance of the representations which may have been contained in the notes, and whether they constituted observations or opinions need not be considered because no such issues were raised on appeal. The challenge raised should be rejected.

(3) Factual issue: temperament of cattle 40 The temperament of the cattle on the day in question was an issue which achieved some importance at the trial. The finding that they were in fact "stirry" was a critical element in the conclusions reached by the trial judge as to liability. 41 The temperamental state of the cattle was said to have arisen from one or both of two causes: the first was that the cattle on the property were generally "stirry" as a consequence of poor management techniques, the second was the stress of the day, which resulted from the admixture of three separate mobs and the presence of a number of people who were unknown to the animals. 42 The trial judge accepted (at [74]) a description of the condition of the cattle on the morning of 4 October, as described by the plaintiff in the following terms, set out at [70]: "They were very flighty. They were stirry, very stirry. They ran hard and fast between yards and were difficult to draft. They packed in the corners. They weren't happy in their environment."

The plaintiff also gave evidence that the cattle were "fractious, fast moving and when moved into the drafting yard they were jammed tight down onto the fence … as far away from the handler as they could possibly be": Judgment at [73]. 43 Evidence as to the temperament of the cattle on the day in question was also given by the defendant, Mr Sandry and Mr Maher. At the time of the hearing, in mid-2004, the defendant was 74 years of age and not in good health. Since leaving school, his time had been spent entirely working on or running the property known as "Glengowan": at [44]. As a consequence of his disabilities, including failing eyesight, his evidence was taken at a private residence in Blayney: [23]. He said that he regarded the cattle at Glengowan as "well-mannered and easy to handle and of good temperament": at [40]. 44 The defendant was not present when the cattle were mustered into the yards, but he did attend on the morning of 4 October when Mr Maher was present and the animals were already in the yards: Tcpt, 19 May 2004, p 122. He said that his eyesight at that time was failing, but that he could see the animals. He was asked to describe their temperament as he observed them on that day and he said: "I thought they were alright. There was - I didn't have any objection to anything."

He also said that he did not think from his experience that they were "flighty, or aggressive or stirry": Tcpt, p 123. 45 In cross-examination, he agreed that the group to be sold were from three different areas and needed to be "boxed". He was asked (Tcpt, p 130): "Q. And boxing cattle together that, in that way, can upset them? A. It could upset them but I don't think it would because these were only 18-months-old heifers. Q. But boxing cattle always has the potential to upset them, doesn't it? A. Upsets them in what way? Q. Make them more difficult to handle? A. I don't think so." 46 He was then asked what he understood the word "stirry" to mean and said that it described cattle that are "discontent and would, if anything, go - go for you". He denied that he had ever heard the cattle on Glengowan described as being stirry. 47 Mr Sandry was 66 years of age at the time of giving evidence and had worked for the defendant for some 25 years: [43]. He was described by the trial judge as having "a fairly laconic approach in the manner in which he gave his evidence": at [56]. He also gave evidence that he did not perceive any problem with the temperament of the cattle on the day in question. 48 In his evidence in chief, Mr Sandry was not asked about the temperament of the cattle on the day in question, but he did give evidence which was inconsistent with the suggestion that the cattle on Glengowan generally were flighty or stirry: Tcpt p 399. He also gave evidence that there were times when three people were used to drench a mob of cattle, with the third person being primarily involved with assisting the drenching in the race. The following exchange also took place (Tcpt, p 406): "Q. At any time did you see the third person on occasions assist the person in the round yard with a difficult animal, that is to get them into the forcing yard? A. No not really, but once out of every 20 or something like that he might have to go in there and help him."

In cross-examination he confirmed that one "could have trouble" with about one in twenty: Tcpt, p 434. It was put to him that the Glengowan cattle had a reputation for being stirry, to which he replied, "Don't know". He denied having heard any conversation between Mr Maher and Mr Ross about problems with handling the cattle. He neither gave evidence-in-chief, nor was cross-examined, as to whether he thought the mob being drenched on 4 October were "stirry". 49 As noted above, the plaintiff sought support for his concerns about the temperament of the cattle both from a conversation with Mr Maher on the day in question and from the earlier conversation recorded in Exhibit K. The conversation on 4 October occurred shortly before 9.30am, after Mr Maher had been to "Glengowan" to inspect the cattle and prior to collecting the prospective purchasers. The plaintiff said that Maher spoke to him in the following terms (at [57]): "Jock, I am concerned about the temperament of these cattle. I don't want to bring the buyer out after lunch and see these cattle in this condition."

The plaintiff then said that Mr Maher told him to "walk amongst the cattle to help settle them down". 50 Mr Maher agreed that he had some concern with the cattle, because they were not used to having six or seven people around the yards at one time: at [59]. He also agreed that he had told the plaintiff, at [58]: "Walk them from one yard to the other. When they go into the top yard, you walk out there and they'll walk back down the other yard and all that sort of stuff. But no, I didn't say to walk amongst the cattle. I asked him to move them from one - just to be in one yard and help them out of that yard to another yard." 51 The plaintiff said that he did walk amongst the cattle in an endeavour to calm them down, an action which he said was successful "to some extent": at [71]. Mr Maher said that when he returned with the buyers, he did not notice any untoward behaviour in the cattle: at [68]. 52 These pieces of evidence, set out in the judgment, gave the impression that the differences in the evidence of Mr Maher and the plaintiff as to the state of the cattle on the morning in question involved differences in emphasis, rather than overt inconsistency. This impression is confirmed by reading the whole transcript of their evidence on this topic. 53 The plaintiff also sought to bolster the support he gained from Mr Maher by tendering a diary note prepared by him of a conversation with Mr Maher on 23 September 1999, a little over a year before the date of his accident. The note contained the following passage: "Have a Problem with the cattle temperament. Buyers complain of not being able to control them. They are often reluctant to buy more despite the fact that they like the cattle, because they get them home and let them out and they go crazy. They won't run together. A couple always break away."

There were then some directions as to techniques for addressing the problem. 54 The trial judge preferred the evidence of the plaintiff to that of both the defendant and Mr Sandry, based in part on the findings of conflict and agreement as between the plaintiff and Mr Maher. It was put on behalf of the defendant that because the plaintiff did not put to Mr Sandry and the defendant in express terms that the cattle on that morning were stirry, it was not open to his Honour to make a finding that they were. However, in relation to the defendant, the plaintiff's case was directly raised with him by his own counsel, and his answers were the subject of challenge in cross-examination. The cross-examination could, perhaps, have taken the matter further, but there was no doubt that the temperament of the cattle on the morning was an issue in the case and was understood to be such by the defendant. Furthermore, it is clear that his Honour understood the defendant's evidence as being inconsistent with that of the plaintiff. The issue could not be resolved by reference to Mr Sandry, because he gave no direct evidence in this regard. His Honour preferred the evidence of the plaintiff to that of the defendant. There was nothing in the objective circumstances of the case which contradicted the plaintiff's evidence and the assessment was one with respect to which the primary judge enjoyed the well-understood advantages of hearing the witnesses and assessing their evidence: see Fox v Percy (2003) 214 CLR 118 at [28] and [29] (Gleeson CJ, Gummow and Kirby JJ) at [90] (McHugh J), confirmed in Anikin v Sierra (2005) 79 ALJR 452 at [37] and [38] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

(4) Construction of round yard 55 The plaintiff obtained an expert report from Professor Evan Hunt, a retired Associate Professor of Animal Production at the University of Sydney, Orange campus. Professor Hunt expressed the view that there were a number of factors which contributed to the incident in which the plaintiff was injured, including several relating to the design of the round yard and the forcing yard. These were that:

(a) the movement from the round yard to the forcing yard was downhill, which is inappropriate because cattle prefer to work uphill and it can encourage animals to turn back up the hill and away from the gate;

(b) the forcing yard should have come off the round yard at a tangent, so that animals driven in an anti-clockwise direction simply followed the fence line into the forcing yard, rather than having to turn into it, and

(c) the yard being wider than 6 metres (namely 7 metres in diameter) was too large to be comfortably operated by one person. 56 The precise significance of these criticisms was left uncertain in the judgment. At [130], the trial judge stated: "In my opinion the order given by the Defendant to drench these cattle in circumstances where it was not necessary, when the cattle were stirry as a result of their treatment earlier in the day, and in particular where only two employees were available, constitutes a breach of the Defendant's duty of care to the Plaintiff. The yard design features identified by Professor Hunt would not have assisted the Plaintiff in the task he had to perform in that they may well have contributed to unsettling the cattle, making it essential for a third employee to be engaged." 57 Whether the findings in relation to the "yard design features" were critical to his Honour's conclusion that there was a breach of the duty of care owed to the plaintiff, is unclear. Nor is it entirely clear which features his Honour had in mind. One issue which had arisen in the evidence, and involved a recommendation which the plaintiff had made to his employer, but which had not been accepted, was that panels should have been attached to the round yard fence so as to restrict the vision of the cattle of what was happening in the race, to which they might have had an adverse reaction. Professor Hunt had supported that proposal, but the trial judge had found that he was "unable to say on the evidence that the provision of panelling would have prevented this accident": at [110]. That was because the beast which struck the plaintiff was not baulking at the race, but rather "was charging towards the race or the plaintiff". The same logic would appear to apply to the criticism based on the downhill slope, which might have discouraged the cattle from entering the forcing yard, and in relation to the fact that the forcing yard fence was not tangential to the round yard, but required the cattle to take a corner. Finally, it is by no means clear that the size of the round yard affected the event which occurred. The need for an additional operator in a larger round yard would appear to be directed towards the need to force cattle which might be distributed over a larger area. 58 During his cross-examination, Professor Hunt was asked (Tcpt, 14 May 2004, pp 202-203): "Q. … [T]here is nothing about the configuration or the manner of construction of the round yard which constitutes or gives rise to a danger to a person in the process of opening the gate to the forcing yard? A. There is, in that to open the gate one must face away from the cattle for a period of time."

No further clarification was attempted or obtained. 59 The finding of breach of duty appears to be based on other evidence, and only limited confirmation for the difficulties faced by the plaintiff was obtained from this evidence concerning the construction of the round yard.

(5) Need to drench on that day 60 It is clear that the lack of necessity to drench at that time was an issue relied upon by his Honour in finding a breach of duty. It seems to have been common ground that the decision to drench the cattle was taken by the defendant at or about the time of the sale. There is no suggestion that this was a pre-planned activity. The plaintiff gave evidence that, after an agreement had been reached with the prospective buyer, there was some discussion as to when they would be collected. He said the following exchange then took place (Tcpt, 12 May 2004, p 83): "Mr Gordon then said 'Right, Kevin and Jock, I want you to drench these heifers now.' The buyer said: 'Oh, that won't be necessary. You know, as a matter of principle I drench things when they arrive on my property.' … and Stuart was insistent and said: 'No, no, I want them to be drenched'." 61 That the cattle from Morrisvale needed drenching appears not to have been in doubt. The plaintiff gave evidence that he had suggested to the defendant that they needed to be drenched because "they were slipping in condition": Tcpt, 12 May 2004, p 53. That suggestion had been made some six weeks before 4 October 2000. 62 As his Honour noted, three men had been used to undertake drenching on Glengowan in the past and, when necessary, casual employees had been used on the property. If it were otherwise correct to treat the drenching in the absence of a third person on 4 October would involve a failure to take reasonable care, it may be accepted that the remedy, namely to delay the drenching for a day or so to obtain the assistance of a third person, prior to the collection of the cattle by the purchaser, would not have involved unreasonable expense or inconvenience.

(6) Breach of duty: need for a third person 63 The fact that the third employee, Mr Dodd, was unavailable on the day in question, having gone on leave, was not disputed. The principal issues raised on the appeal, which was the subject of five of the eight grounds of appeal, was whether the failure of the defendant to obtain a third person to assist with the drenching, or to delay the drenching until a third person was present, demonstrated a lack of reasonable care and, further, whether that failure materially contributed to the injury suffered by the plaintiff. 64 These questions can conveniently be considered together, for reasons discussed at [25]-[33] above. Thus, if there were to be a third person assisting in the drenching, his or her functions must have included keeping an eye on the cattle in the round yard whilst the person in the round yard was opening the gate, so as to have warned of the charging beast which hit the plaintiff in the back. 65 Turning to the evidence, at trial, the plaintiff relied first on past practice on Glengowan. He gave the following evidence in relation to drenching on previous occasions (Tcpt, 13 May 2004, p 99): "Q. … Let's go back to previous occasions when there had been drenching done in those yards. You have told his Honour that would normally be the three of you? A. Yes. Q. Frank? A. Frank Dodd. Q. Kevin? A. Kevin Sandry. Q. And you? A. Yes. Q. With the third person there, could that person assist in the handling of the cattle that were in the round yard? A. Yes. Q. And had that happened on previous occasions? A. Yes. Q. Could that third person assist if needs be with what was happening in the race? A. Yes. Q. But in terms of the time when you had to turn your back on the mob that was in the round yard to open the gate, right? A. Yes. Q. When you had a third person there, could they help with what was happening in the round yard? A. Yes. Q. And would their help involve getting the cattle to move so that they [went] around anti-clockwise and went down through the gate? A. Yes. Q. Would that be one of the things they would do? A. That would be one of their tasks. Q. Would it, in effect, also allow them to observe what was happening? A. Yes. Q. Have you been in yards where you have had to respond to a shouted warning to get out? A. Yes. Q. And what do you do if somebody yells out? A. You turn quickly to see where the problem is coming from and take evasive action, whether it is - if you've got time to run to a side fence and jump up and over it or use your cane to try to control that beast, hitting him on the face on the nose so he blinks. That is happening in a fraction of a second, I might add." 66 That evidence was also addressed in his cross-examination (Tcpt, p 160): "Q. What would the third person do if you were drenching cattle in the main yards at Glengowan? … A. The third person would normally stand outside the round yard, spending part of his time there to assist the person in the round yard and he would spend part of his time down at the race assisting the drenching operator opening and closing gates and moving beasts into whatever position the drencher wanted. Q. To what extent would that third person assist in the performance of the duties in the round yard? … A. He would act as an observer to warn that person. It was often me as this third person. More often than not it was me as this observer come helper for the drencher and I would warn Mr Dodd in the round yard at whatever set of yards it was we were working, that 'Look out, Frank, that beast wants to have a go at you'."

The cross-examination continued: "Q. Was it not the case that on many, many occasions the drenching done at the main yards at Glengowan was done with two people, not three? A. That occasionally would have happened. Q. I'm not suggesting occasionally, I am suggesting at least 50% of the time, or if not greater than that, the drenching process done at the main yards at Glengowan was done with two people and not three? A. Two people did some operations at Glengowan, whether it was drenching, or whether it was getting a handful of stud animals to do something with them. If there was only two people required for such a task and it was deemed to be a safe level of labour, then that's what was done. Most major operations with larger mobs of cows or groups of animals that were all going to be brought together at those yards, or any set of yards, it was organised the day before to get a third person, whether it was Frank Dodd or whether it was a neighbour, Max Smith, or whether it was the man from down at Green Hills."

When the plaintiff's attention was drawn back to the question as to the percentage of times drenching was done by two persons, he expressed some doubt, but tended not to agree that it was more than 50% of the time and disagreed that it was "a substantial number of occasions": Tcpt, p 161. 67 Mr Sandry agreed that three people were used to drench a mob of cattle, "if we wanted three": Tcpt, 20 May 2004, p 182. He described the work of the third person as involving getting the head of a beast into the right position for him to insert the hook to drench it. As he was the person doing the drenching on each occasion, that description of the work applied to the assistance he received. He was then asked, "did you ever see the third person … allocated the task of being an observer and staying at the round yard to watch the person work in the round yard?" He answered, "No." His evidence continued: "Q. At any time did you see the third person on occasions assist the person in the round yard with a difficult animal, that is to get them into the forcing yard? A. No not really, but once out of every twenty or something like that he might have to go in there and help him." 68 In cross-examination, Mr Sandry was asked a number of specific questions about help that the plaintiff had given to Mr Dodd moving the cattle in the round yard to which he answered, "Don't know": Tcpt, 20 May 2004, p 211. He was asked whether he had heard the plaintiff yell a warning to Mr Dodd, but he could not remember having heard that. 69 In his final written submissions, the plaintiff relied on a statement in a publication of the New South Wales Department of Agriculture, entitled "The Beef Business - Strategies for Greater Productivity", which stated at p 61: " Yards wider than 6 metres often require more than one operator to force cattle ." (The sentence was italicized in original.)

However, the reason for that appears to have been that with a round yard having a diameter of less than 6 metres, it was possible to maintain one hand on the gate and sweep the cattle in an anti-clockwise direction into the forcing yard. With a larger diameter round yard, that was no longer practicable, which appears to have been the reason why the publication (which had been revised by Mr Yeates, an expert called by the defendant) required the use of two operators in a round yard above a certain size. 70 Although the defendant argued that a third person could not have given useful assistance to the plaintiff in the round yard, at that point in time at which the cattle were about to be moved from the round yard to the forcing yard, his Honour reached a different conclusion. He found that it was open to the defendant "to use the system that had been used in the past, namely for the third man to be engaged in other activities but available to keep an eye on the operator at the gate to the forcing yard as he prepares to admit the next batch": [115]. He accepted the plaintiff's evidence that he himself had "given a warning to others when they are engaged in this activity which would enable the operator to escape or turn and use his cattle cane to control the advancing beast". Although in submissions before the trial judge complaint was made that the evidence about the giving of a warning was not specific as to time or occasion, the plaintiff had not been cross-examined as to those details. 71 The drencher, who had three or four beasts in the race, commenced with the hindmost (nearest the forcing yard) and moved up the line toward the beast at the bail-head. Once the drenching was complete, and the animals were to be released from the race, both the drencher and any person giving assistance would need to move away from the race so as to avoid causing cattle about to move into the race to baulk. It is at that point in time, once the bail-head has been closed and the entry to the race opened, that the next batch of cattle were released from the forcing yard. As a matter of timing, there was no obvious illogicality in his Honour's conclusion that the assistant could at that stage turn his or her attention to the activities in the round yard. Otherwise, there would nothing for the assistant to do until the next batch of cattle was secured in the race. 72 As neither party called Mr Dodd, the evidence confronting the trial judge as to practice at Glengowan with respect to drenching, was largely restricted to the evidence of the plaintiff and Mr Sandry. His Honour preferred the evidence of the plaintiff, and there is no basis for rejecting that finding. Accordingly, it was open to the trial judge to find that three people had been used in the past, with the third person taking a watching role at the critical time, thereby being in a position to warn the person in the round yard of potential risks, whilst his attention was directed away from the cattle. 73 I would also adopt the comments of Hodgson JA in relation to the additional submission put forward by the Appellant: see [3]-[6] above. 74 The other basis upon which the defendant challenged the finding was that it was not the general practice in the industry to require three persons to drench 100 animals: ground 7, second limb. In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [34] McHugh J emphasised the importance of taking "the common experience of the relevant community" into account in determining the standards of conduct relevant for the law of negligence. Indeed, his Honour noted that "compliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently". However, the weight to be given to common practice must depend upon the nature of the activity, the degree of its variability and the evidence generally concerning its application. The evidence in the present case was somewhat limited. 75 The defendant asserted in his written submissions in this Court that Mr Yeates had given evidence "upon which he was not cross-examined that the task of drenching 100 animals was a one-man operation". The reference given was the transcript of 1 June 2004, in the middle of the cross-examination of Mr Yeates. Indeed, the cross-examination on this point continued over several pages of transcript, through which Mr Yeates conceded that experience with respect to a particular set of yards could be important. It was put to him that if the practice at Glengowan was to use three people to do the drenching, that would suggest that you "need more than one man to move the cattle": Tcpt, p 211. He accepted that that "could be right" and, whilst accepting that the design of the yards might contribute to the need for an extra person, "wouldn't say that three were absolutely necessary". 76 Mr Brown, who ran a business relating to animal husbandry, was also called by the defendant. He gave evidence that he had operated a gate whilst working in a round yard and continued (Tcpt, 26 May 2004, p 135): "You know, it's not a very comfortable position."

He agreed that cattle generally preferred to work uphill rather than downhill. In re-examination he was asked (Tcpt, 26 May 2004, p 155): "Q. … If you take this yard, a 7 metre diameter yard, you were working cattle inside the yard, do you think a warning would be of any assistance to you, in view of the distance between you and the animals, to assist in escaping from the animals? A. Yeah. It's a good question. I mean, the rule is you never turn your back on the animals so you would expect to see what was happening. If for some reason or other you had your back turned for - if you tried to do two things at once - then a warning might be quite useful." 77 Associate Professor Hunt gave evidence of experience of a very similar yard built at Orange Agricultural College in 1972. He said that the yards were removed and replaced in 1995, following complaints from staff, students and consultants, "both from human safety and animal stress perspectives": Report, 14 November 2002, p 4. He expressed the view that to expect anyone "to try and load the forcing yard in this design, on their own, is extremely dangerous as the person would have to turn their back on the remaining cattle to close the forcing gate": at p 5. As noted above, the specific reliance by the judge on this evidence in relation to causation, may have been problematic, but it reinforced the evidence of Mr Yeates in which he accepted that the design of the specific yards may be important in assessing safety issues. The Court was not taken to any other evidence concerning general industry practice. 78 In the light of this evidence, it was open to his Honour to find that a safe system of work, given the circumstances, required the availability of three persons to do the drenching. Such a conclusion was not inconsistent with any material objective factors which, on an independent assessment of the evidence, would demonstrate that the acceptance of the plaintiff's case was unjustified. It is clear that his Honour directed his attention to the functions to be exercised by the third person, in order to assess whether his or her presence would have been effective in preventing the accident. Again, it was open to his Honour to form the view that it would, on the balance of probabilities.

(7) Inadequate reasons 79 The defendant also appealed on the grounds that the trial judge failed to give any or any adequate reasons to support the view that the provision of a third person "positioned at or adjacent to the bail-head" was reasonable or would have prevented the accident. For reasons already noted, it was not the plaintiff's case that a person who may have assisted Mr Sandry at the race would have spent all his or her time at or near the bail-head. 80 In argument these two grounds were treated concurrently with the substantive challenges to the findings made by the trial judge. In terms of causation, the defendant complained that the trial judge did not make a finding that a third person located at the race would have observed the impending danger, but only that he or she "could" have been available to provide a warning. It was said that "no reasons" were provided to support such a finding. 81 As is frequently the case in relation to an appeal by way of re-hearing, a complaint of lack of adequate reasons tends to obscure the real ground of complaint. Thus, if the real complaint is that no finding has been made, the question of reasons is irrelevant. There is no obligation to give reasons for a finding which has not been made. The gravamen of that complaint, whether right or wrong, must be that no finding has been made in circumstances where there was an obligation to address the issue. On the other hand, if a finding has been made, but is not supported by the evidence, there is little substantial benefit to an appellant to complain of inadequate reasons: on a re-hearing, it would generally be necessary for the Court hearing the appeal to consider the evidence and determine for itself whether it was adequate to support the finding made. 82 In the present case, the passage complained of must be read in context. After discussing the evidence of the various witnesses as to the need for a third person to assist in the drenching his Honour noted, at [101], a submission by counsel for the plaintiff: "… that if the third person was assisting in the drenching process, once that activity has been completed, he would then be able to observe the Plaintiff as he opens the gate for the next batch to be admitted to the race. This, as was submitted, is the critical time when the Plaintiff is required to co-ordinate the admission of the next batch at a time when he cannot concentrate on the cattle behind him."

His Honour accepted that submission and continued at [102]: "I further accept the evidence of the Plaintiff that such a person could be available to provide a warning when of necessity the plaintiff must turn his back on the cattle. The publication earlier referred to contemplates that two people can be required in the yard." 83 It may be accepted that these passages do not expressly hold that the hypothetical observer would, on the balance of probabilities, have observed the impending danger and given an effective warning. However, at [115], after considering whether a third person should have been available in the round yard, his Honour continued: "Alternatively, to use the system that had been used in the past, namely for the third person to be engaged in other activities but available to keep an eye on the operator at the gates of the forcing yard as he prepares to admit the next batch. In such circumstances, as the Plaintiff had said, he himself has given a warning to others when they are engaged in this activity which would enable the operator to escape or turn and use his cattle cane to control the advancing beast." 84 The evidence relied upon by the defendant to say that a warning would have been ineffective was that of Mr Yeates, who was asked what assistance might be given by a person at the race, on the assumption that he must remain at least 10 metres away from the round yard: Tcpt, 26 May 2004 at p 173. (The reason for keeping at a distance, was to avoid distracting the cattle.) However, his Honour did not accept the evidence given for the defendant in that regard: [116]. His Honour's findings with respect to the various elements of the claim were succinctly stated at [133] in the following terms: "I am of the view that the accident was foreseeable, there was a reasonably practical way of obviating the risk either by way of ensuring a third employee was available or postponing the drenching process until the cattle were more settled. Had these measures been adopted then the risk of injury to the Plaintiff would have been materially reduced if not eliminated."

This passage involved an express finding in relation to causation, the only remaining question being whether the finding was in appropriate terms. 85 There is no doubt that the trial judge understood the need for an affirmative finding in relation to causation as, at [110] before reaching the final section of his reasons in relation to liability, he rejected evidence that the yards were unsafe because they lacked panelling which might have made the cattle less restive, because he was "unable to say on the evidence that the provision of panelling would have prevented this accident". 86 Taking into account the principles stated above at [33], his Honour's finding that the presence of a third person at the drenching would have significantly reduced a foreseeable risk of harm, was sufficient, on the basis that such a course of action did not involve an unreasonable imposition on the resources of the defendant, to satisfy both the obligation to take that step and a finding that the failure to take the step materially contributed to and hence was causative of the harm suffered. If the factual findings made by his Honour are to stand, as has been concluded above, his reasoning in support of a final conclusion of liability was not attended by error.

(8) Contributory negligence 87 Grounds 9 and 10 in the amended notice of appeal asserted error on the part of the trial judge in holding that the plaintiff was not guilty of contributory negligence. His carelessness was said to depend on two particulars, namely:

(i) placing more than 8 heifers in the round yard; and

(ii) failing to keep under observation the animals in the yard whilst he was in with them. 88 At the trial, the defendant relied upon a statement by the plaintiff in a Workers Compensation Claim Form completed on 16 October 2000, the day following his release from Orange Base Hospital, that there were 12 cattle in the round yard at the time of his injury. In his evidence, he was adamant that there were only 8 animals in the yard at the relevant time. Mr Sandry gave evidence that there were between 8 and 10 beasts in the yard at the time. His Honour concluded at [129]: "Having regard to the evidence of Mr Sandry and the Plaintiff's explanation I accept the Plaintiff's evidence that there were no more than 8 cattle in the yard at the time of the subject accident and accordingly do not regard the admission contained [in] the claim form in the circumstances supports a finding of contributory negligence." 89 The defendant did not challenge this finding of fact in the written submissions in this Court, nor in the course of oral argument. Rather, the argument turned upon the second factual element, namely the failure to keep the animals under observation at all times. 90 In substance, the plaintiff said that whilst keeping the animals under observation was a "cardinal rule" it could not be observed constantly. In particular, he needed to pay attention to the person carrying out the drenching in order to know whether the animals in the race had been released and, if so, whether the bail-head had been closed. Similarly, in order to release further animals from the round yard, he needed to open the gate. 91 The substance of the defendant's complaint was that the plaintiff was also an experienced handler of cattle, and if he, the employer, should have appreciated the risks involved in moving cattle through the round yards to the drenching race, especially if they were stirry, the plaintiff would have been equally aware of the risks. The employer, it was argued, did not provide a system of work by which the plaintiff carried out his tasks, but relied on the plaintiff to know how he should operate, having regard for his own safety. 92 With respect to keeping the cattle under observation, Mr Yeates, who was called on behalf of the defendant, gave the following evidence (Tcpt, 26 May 2004, p 173): "Q. And what then is the sort of cardinal rule of the person working the yard? A. Just keep your eye on the cattle, I guess. Q. Do you ever turn your back on cattle in a round yard like this? A. You try not to." 93 Mr Brown, also called by the defendant, gave the evidence noted at [76] above. He appeared to accept that if you were doing "two things at once" you might turn your back on the animals. He agreed that "the rule is you never turn your back on the animals". 94 The plaintiff was cross-examined in relation to the cardinal rule (Tcpt, 13 May 2004, p 140-141): "Q. And may I suggest to you also that arising out of both that practical experience you had before coming to Glengowan you came to know the two cardinal rules in cattle handling, the first one was you never turn your back on an animal in the yard, that's correct isn't it? A. Well, it's certainly advisable, yes. If you can - unless it's unavoidable but - Q. It's one of the well known … A. Yeah. Q. … facets of handling cattle in a safe manner that you keep an observation of the animals in the yard in which you are working at all times, correct? A. I don't know that I can answer that in the affirmative because when I was told to walk around the cattle for two hours and I am in a yard with 40 cattle and walking through them and around them, if I am walking in a direction this way I am naturally going to have cattle behind me. I can't keep my [eyes], unless I have eyes in the back of my head, I can not watch every beast at every second, no. Q. It is not a cardinal rule that you apply in cattle yards to keep the cattle under observation at all times? A. Well, I would like to see a person who can watch every beast at every second when he is told to walk around through a mob of cattle. If he can watch every beast when they are circling around him he is a pretty clever fella." 95 He was then asked what he did when he entered the round yard, having let the group of cattle into it (Tcpt, 13 May 2004, p 145): "Q. I assume that once you had closed the gate through which you entered and proceeded in that manner you were looking towards Mr Sandry, correct? A. Once I closed that gate that I came into the round yard through [sic] my vision was totally on the 8 heifers standing on the opposite side of the yard. Q. Do you say as you walked there you watched them as you walked across to the gate leading to the forcing yard? A. Absolutely. Q. And when you got to the gate leading to the forcing yard you told us that you opened the latch with your right hand, correct? A. Yes. Q. Were you carrying a cattle cane? A. Yes. Q. Were you carrying a cattle cane in your right hand? A. No. Q. You are dominant right-handed? A. Yes, but to open the latch you put the cane in your left hand. Q. You see, once you had progressed to the latch at the gate, that is leading to the forcing yard you had turned your back completely in the round yard so you were no longer able to watch them, correct? A. I watched those eight heifers for the entirety of my journey to the forcing yard gate … … Q. Your back was then, that is you were facing directly away from all of the animals in the round yard, correct? A. When I got to that gate I looked, I took my vision away from the eight heifers briefly. I checked where Kevin was up to, for that second my eyes were taken off the eight in the round yard. I could see that our timing was almost perfect, the cattle were being let out. I said, right, I'll open the gate because it's a good time to get the next eight in, the next group of three into the race. So I proceeded to, yes, I had my back to those cattle - to open the gate. I had my right hand on the gate, I had my left hand holding the cane up on top of the yard gate, which is habit in the event of cattle coming backward toward you, you have to control your gate." 96 There was extensive further cross-examination as to how far the gate had actually opened (the plaintiff said 12-18 inches) when the heifer hit him in the back and to establish that it was not necessary for him to continue to keep one eye on the cattle in the race, because there was no real chance that they would back out into the forcing yard. In substance, the plaintiff was unmoved in relation to how far he had managed to open the gate when he was hit, and equally firm that there was a risk of cattle backing into the forcing yard, stating (Tcpt, 13 May 2004, p 158): "Glengowan cattle were often backing out of the race." 97 The principle underlying the so-called "cardinal rule" is tolerably clear: cattle are heavy animals, capable of causing significant harm and capable of moving unpredictably, especially if unsettled or "flighty" or "stirry". Accordingly, it is desirable to keep an eye on them at all times. The cardinal rule reflects a risk inherent in the business. On the other hand, as a practical matter, the witnesses on both sides of the record accepted that there were times when it was simply not practical to watch all of the cattle, at every moment in time. Experience was no doubt of assistance, but the behaviour of the animals was potentially unpredictable. 98 The plaintiff's case was not that he was not aware of the risks or the relevant rules, in looking out for his own safety, but rather that he was placed in an unnecessarily risky situation. The fact that most of the mob had been drenched when the accident occurred and that there were only a handful of "tailenders" left to be drenched, meant that the risk had not materialised up to that point. It was at least possible that the tailenders were themselves more inclined to be flighty or temperamental than cattle who had allowed themselves to be drafted earlier in the process. The question for the trial judge was whether the plaintiff had allowed his concentration to lapse late in the afternoon and whether that was itself an element against which the system should have offered some level of protection or whether it was a failure to take reasonable care for his own safety. 99 His Honour concluded at [123]: "The Defendant also submitted that the Plaintiff was guilty of contributory negligence in that he turned his back on the cattle. In my view the circumstances with which the Plaintiff was confronted explains the reason why he did and in that sense was doing no more than following the Defendant's system of work."

His Honour continued at [125]: "Even if I am wrong in the above analysis, at worst the Plaintiff's action would be an error of judgment not amounting to contributory negligence." 100 In written submissions before this Court, the defendant sought to argue that the plaintiff had adopted a hazardous system of work of his own choosing, which was not the defendant's system. That involved turning his back on the animals in the round yard and failing to keep them under observation at all times. However, with respect, this form of analysis is somewhat artificial. Either the plaintiff failed to exercise the skill required of a reasonably experienced cattle manager, or he did not. The "system of work" prescribed by the defendant involved the drenching of approximately 100 head of cattle, in particular yards with two men to handle the operation. The trial judge was satisfied the animals were "stirry" and that the structure of the round yard, both in size, slope of the land and positioning of the gate to the forcing yard, tended to make the task more difficult. They key element, inherent in the system, was that only one man was available to herd the cattle into the round yard and through into the forcing yard. The plaintiff gave evidence over some three and a half days in relation to questions of liability; his Honour also had the benefit of hearing further evidence in relation to his injuries. There was no other witness to what happened in the round yard, the actual incident not being observed by Mr Sandry. There was no independent source of evidence which could assist his Honour in reaching a conclusion as to whether the plaintiff had exercised reasonable care for his own safety or not. There was no concession extracted in the course of cross-examination which demonstrated that he failed to take such care for his own safety. Accordingly, his Honour's assessment that he was not contributorily negligent must have been based to a significant extent on his assessment of the plaintiff in the witness box. No ground has been established to interfere with that finding.

(9) Damages 101 The defendant also challenged the assessment of damages made by his Honour in three respects. First, it was said that the award for non-economic loss was excessive. Secondly, he challenged the assessment of past and future economic loss, and in particular the finding that the Respondent did not possess any residual earning capacity. Thirdly, there was a challenge to the award with respect to domestic assistance, both past and future.

(a) non-economic loss 102 The primary injury suffered by the plaintiff was a fracture of the C6 vertebra and an incomplete dislocation (subluxation) at the C6-C7 facet joint. After the accident, the plaintiff was admitted to Blayney Hospital and then transferred to Orange Base Hospital. From there he was airlifted to Royal North Shore Hospital where, on 7 October 2000, Dr Sekhon "performed an open reduction of the fracture subluxated C6-C7 facet joint and affixed plates and screws. The operation involved a bone graft with bone being taken from the plaintiff's left posterior iliac crest": Judgment at [140]. He was discharged on 16 October. 103 Although his orthopaedic surgeon at Orange, Dr Geoffrey Mutton, anticipated that he would return to light duties on 15 March 2001, with a possible return to full-time duties some 10 days later, the difficulties he experienced undertaking light duties made him unable to resume full duties and his employment terminated on 6 July 2001. 104 His Honour accepted that he continued to suffer pain in his neck, radiating to the back of his head and the top of his head, pain across his eyebrows and between his shoulder blades and across his shoulders. He also complained of continuing pain in his right arm. His Honour accepted that he had cognitive difficulties, including difficulties with concentration and memory and, as his Honour observed, an inability to concentrate on questions in the witness box. He was not, however, satisfied that the plaintiff had suffered brain damage as a consequence of his injury: Judgment at [195]. 105 There was a dispute as to the severity of the plaintiff's on-going disabilities. A doctor appearing for the defendant, Dr John Matheson, a consultant neurosurgeon, had formed an adverse view of the plaintiff, "accepting a description of him as a [malingerer] or a liar": Judgment at [182]. The trial judge did not accept either of those descriptions and did not accept the opinion of Dr Matheson, preferring the assessment of his treating psychiatrist, Dr Harris. 106 Counsel for the defendant had also submitted to the trial judge that the plaintiff's depression was "endogenous" and unrelated to the accident: Judgment at [196]. His Honour continued, in relation to that submission: "He advanced this proposition on the basis that the Plaintiff's failure to achieve a more significant position and salary prior to his accident could have led to the development of his disorder. Such a submission is contrary to the evidence of the Plaintiff and his wife who were content with their life at 'Glengowan' at the time of the accident. Additionally, there is no medical evidence to support the submission and accordingly I reject same." 107 The trial judge held, on the balance of probabilities, that the plaintiff would continue to be affected by depression for the remainder of his life: at [197]. He continued, at [199]: "Although Dr Harris did not in so many words say the depression the Plaintiff was suffering from was permanent, expressions such as the 'outlook is poor' or 'bleak despite treatment', satisfies [sic] me on the balance of probabilities that the Plaintiff is unlikely to recover."

It will be necessary to return to this finding below. 108 A complaint in the written submissions that the evidence did not support those findings was withdrawn at the hearing of the appeal. Nevertheless, the defendant adhered to his submission below that the injuries suffered should fairly be assessed at 30% of a most extreme case and not, as the trial judge found, pursuant to s 151G of the Workers Compensation Act 1987, 55% of a most extreme case. 109 The defendant's argument on appeal focused squarely on the activities in which the plaintiff engaged during 2001, as reflected in his own diaries. That material was summarised in the following passage of the written submissions (at par 112): "An examination of the diary maintained by Mr Ross during the period 26 September 2001 to 25 December 2001 … discloses that Mr Ross either frequently assisted in the work on 'Illyria' [a sheep station] or travelled to Sydney to attend sporting activities or social engagements. On many days when he travelled to Sydney he would leave Glengowan at 5:00-5:30am and return after 10.30pm that day which he conceded represented a very long day."

On the other hand, the evidence for the plaintiff was that, apart from his physical disabilities, there had been significant adverse changes in his personality and he suffered from a level of chronic pain and depression which, his Honour accepted, should be treated as permanent. 110 Placing a plaintiff on a range between an insignificant injury and a most extreme case involves an evaluative judgment which "will not readily be susceptible of appellate review": per Handley JA in Dell v Dalton (1991) 23 NSWLR 528 at 533G. The trial judge assessed the case as close to the middle of the range. There is no basis for interfering with that judgment, unless an error of principle has been identified. However, as will be explained below in relation to the assessment of future economic loss, his Honour was in error in determining future effects of the accident by reference to the balance of probabilities, rather than taking into account matters of degree, including an appreciable possibility of improvement: see Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643. The majority judgment in Malec expressly applied that principle in relation to the assessment of future pain and suffering: ibid at 644-645. 111 There is no doubt that future pain and suffering will form an appreciable element of most members of the class of most extreme cases. 112 Although this was not precisely the basis upon which the Appellant challenged the finding with respect to the assessment of non-economic loss, the argument that the assessment was excessive should be accepted. The assessment should be reduced to 45% of a most extreme case and the figure allowed for non-economic loss in his Honour's judgment should be adjusted accordingly.

(b) economic loss: past 113 At the time of the injury, the plaintiff was in receipt of a relatively low salary of $40,000 per year. However, he received in addition free accommodation on the property. The trial judge awarded past economic loss calculated at the rate of $606 per week (net of tax) together with $280 as the value of the accommodation, without reduction, giving a total of $886 per week. The only challenge to that figure was that $280 was the rent paid by the plaintiff whilst living in premises at Bowral in late 2001 and was therefore unrelated to the value of the house on the property at Glengowan. Because the evidence did not support any particular figure, the defendant says that no allowance should have been made for the value of the accommodation. 114 There was, however, evidence that rental of an equivalent house in Orange would have been approximately $400 per week, the figure adopted for the calculation of reduced earning capacity being significantly below that value. Some allowance should obviously have been made for the value of the accommodation in calculating the earning capacity of the plaintiff between the date of the injury and the date of trial: the figure adopted by the trial was within an appropriate range. 115 The defendant also suggested that the amount for past economic loss should have been reduced by the amount of rent included in the calculation for the period during which the plaintiff and his family were residing on a property owned by the family of his wife, where he did not pay rent. 116 The basis for that submission was not explained. In accordance with the principle established in Liffen v Watson [1940] 1 KB 556 (CA) the plaintiff's damages should not be reduced on account of board and lodging provided by relatives or friends (see Luntz Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [8.3.15]). That principle was adopted by the High Court in The National Insurance Co of New Zealand v Espagne (1960) 105 CLR 569, Windeyer J stating at 597: "It is generally accepted that aid given by friends and philanthropic persons to ameliorate the lot of a sufferer ought not to be taken into account in assessing damages."

There are similar statements in the judgment of Dixon CJ at 573.

(c) economic loss: future 117 In relation to future economic loss, the trial judge made some allowance for the plaintiff's "small residual capacity" (Judgment at [213]) but was not prepared to assume that he would recover his capacity after 10 years, as submitted by the defendant. Having calculated past economic loss at the rate of $886 per week, he used a figure of $750 per week net for future economic loss, indicating a continuing earning capacity of about 15%. The usual figure for contingencies resulted in a further 15% reduction. 118 The defendant contended on the appeal that, because it is likely that the plaintiff will continue to enjoy free accommodation at the property of his wife's family, the allowance for loss of earning capacity should be reduced accordingly. That submission should be rejected on the same basis as the similar submission in relation to past economic loss: see [116] above. Secondly, the defendant challenged the assessment of future earning capacity on the basis that the plaintiff's present state of health is unlikely to be permanent. He relied particularly upon the evidence of Dr James Maguire, a consultant psychiatrist, who was not required for cross-examination. Dr Maguire first saw the plaintiff on 29 October 2002 and provided a report which was not materially inconsistent with those obtained from other medical practitioners. He saw him again on 23 March 2004 and confirmed his earlier opinion. In his first report, Dr Maguire expressed the opinion that the plaintiff was suffering an "apparent inability to 'let go' of the idea of working as a farmer": p 10. He also stated: "Mr Ross' depression was both a response to the presence of on-going pain but also the way it interfered with his capacity for day-to-day activities and most importantly his ability to work as a farmer." 119 In his third report Dr Maguire noted that he was continuing to be treated for depression and commented (at p 3): "Sessions should continue for a period of 12 months after the completion of litigation. One often finds that the process of litigation is itself, stressful, and acts as a constant reminder to the plaintiff of what they have lost as a result of the accident or injury. One equally finds that with the completion of litigation the plaintiff is better able to focus more on their future and significant improvement is often possible."

It appears to have been on the basis of this last, general, comment that the defendant based his assertion that the trial judge should have made allowance for the probability of such an improvement. 120 The main difficulty with the submission is that Dr Maguire did not descend to the particular. He merely spoke of general expectations, without any attempt to relate those expectations to the circumstances of the plaintiff. The trial judge was entitled to rely upon the evidence of the plaintiff's treating psychiatrist, Dr Harris, who gave evidence that, while the depression was treatable, the failure of the condition to respond rendered the outlook poor. 121 On the other hand, his Honour expressed the finding in this respect in the terms set out at [107] above. This would appear to be a finding that the chance of the plaintiff recovering was not insignificant, but was less than 50%. However, following Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, the correct approach would be to provide a proportionate reduction of the damages for loss of earning capacity, to take account of the possibility that his condition would improve, or that, if it did not, his continuing incapacity would be one which could not properly be ascribed to the accident. If the plaintiff were able to overcome his depression, or at least reduce it to manageable levels, there appears to have been a real prospect that his earning capacity would improve. What figure his Honour would have placed on that possibility, had he addressed the matter in the appropriate terms, is difficult to say with any level of precision. The matter can, however, be addressed on the same basis as that adopted by his Honour, namely that the views of Dr Harris should be accepted. The two objective factors which need to be taken into account were the finding by his Honour that the plaintiff's evidence of suffering chronic pain should be accepted. Secondly, there was the undoubted loss of any future as a farm manager, an occupation from which it is clear that the plaintiff derived satisfaction and to which he expected to devote the better part of his active life. Both of these matters rendered the likelihood of him overcoming his depression lower than might otherwise have been the case. Further, towards the conclusion of his cross-examination, Dr Harris stated (Tcpt, 25 May 2004, pp 96-97): "I have come that close to recommending admission to hospital for psychiatric treatment. The thing that has stopped me is that this man will be chronically depressed, very likely chronically at risk of self-harm, and to put him into psychiatric hospital will be like another badge of how crook he has become, and a man who is this proud won't wear that well. I am mindful of not doing more harm. I cannot lock him up in a psych hospital forever." 122 His Honour's finding that the depression was likely to be permanent was made despite the conclusion that there was no brain damage. A contrary view in this respect might have rendered the prediction of permanent depression more emphatic. Given the absence of brain damage, and the finding that it was not endogenous, it would seem plausible that there remained a significant chance that the depression would be alleviated to the extent that some greater level of earning capacity would result. Given that the loss of earning capacity was set at about 85% (before allowing for vicissitudes) and that there might be a significant chance of improvement in the state of depression, it would not be appropriate to place a time limit on the loss of earning capacity, as the defendant suggested, but it would be appropriate to reduce the loss by 20%. In my view that variation should be made to his Honour's calculation of future economic loss.

(d) domestic assistance: past 123 The plaintiff claimed an amount of $230,216.32 on account of past domestic assistance and out-of-pocket expenses. That figure was the amount paid by the insurer, up to the time of the trial. 124 The adoption of that approach rendered it unnecessary for the trial judge to seek a breakdown between past domestic care and out-of-pocket expenses. However, the amount paid by way of domestic assistance was apparently calculated at $840 per week and covered the period, presumably from when he arrived home from hospital, until the date of judgment, a period of about 220 weeks. That would result in a figure of approximately $185,000, leaving a balance of some $45,206 on account of out-of-pocket expenses. No challenge is made in relation to this latter element. 125 The primary basis of challenge with respect to domestic assistance was the reliance by the trial judge on the payment by the workers compensation insurer as an admission of liability. The second ground of challenge was that the evidence established that the plaintiff required "no more than minimal care" from 15 March 2001 and, accordingly, a calculation based on three to four hours per week after that date would have been appropriate. 126 Two answers were made to the first contention. First, it was said that the trial judge was entitled to place weight on the admission arising from the payments by the insurer and, secondly, that it was incorrect to say that the trial judge had placed "great emphasis" on that evidence when in fact it had merely confirmed a view otherwise formed by the trial judge on the evidence before him. 127 Pursuant to s 81(1) of the Evidence Act 1995 (NSW), neither the hearsay rule nor the opinion rule applies to evidence of an admission. An admission is defined in the dictionary to the Evidence Act in the following terms: " admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding … , and (b) adverse to the person's interest in the outcome of the proceeding."

The term "representation" is defined to include "a representation to be inferred from conduct". 128 The defendant called Mr Stephen Mulray, a case manager with GIO Insurance, who was responsible for the workers compensation payments made on behalf of the defendant. There was no challenge to the proposition that a payment made under his authority by the GIO, as the defendant's insurer, could constitute an admission for the purposes of s 81 of the Evidence Act, presumably pursuant to s 87(1). Rather, the purpose of calling Mr Mulray was to adduce evidence of the procedures adopted within GIO Insurance in relation to payments of domestic assistance under the Workers Compensation Act, in order to diminish the weight which could be given to any admission which might be inferred from the conduct of making the relevant payments. 129 At least from 1 January 2002 (no reliance was placed on any earlier provision), the statutory obligation to make payments with respect to domestic assistance was found in s 60AA of the Workers Compensation Act which, as far as relevant, provided as follows: 60AA Compensation for domestic assistance (1) If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if: (a) a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury … . … (3) Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or foregone employment as a result of providing the assistance. … (5) The following requirements apply in respect of payments under this section: (a) payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance, as the services are provided, (b) payments are only to be made if those costs and the provision of the assistance is properly verified … , (c) payments for gratuitous domestic assistance are to be made to the provider of the service. (6) In this section: gratuitous domestic assistance means domestic assistance provided to an injured worker for which the injured worker has not paid is not liable to pay. 130 Payments were made pursuant to this section. Indeed, it was assumed for the purposes of argument, that all past payments for gratuitous services were made in accordance with the provisions of this section. The issue raised on the appeal was whether the trial judge was correct in relying upon these payments as an admission of liability on the part of the employer. 131 On the premise that evidence of such conduct was admissible, there is nevertheless a serious issue as to the weight which should be given to such an admission against interest. In Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 143, the joint judgment of Rich, Dixon, Evatt and McTiernan JJ concluded, after reviewing the relevant authorities: "This course of authority seems consistent with the view that words or conduct amount to an admission receivable in evidence against the party if they disclose an intention to affirm or acknowledge the existence of a fact whatever be the party's source of information or belief. In determining whether he intends to affirm or acknowledge a state of fact the party's knowledge or source of information may be material. … But, although the meaning of his words or conduct may depend upon the state of his knowledge, once that meaning appears and an intention is disclosed or to assert or acknowledge the state of facts, its admissibility in evidence as an admission is independent of the party's actual knowledge of the true facts."

Moving from the question of admissibility to the weight to be accorded to the evidence, the joint judgment continued (at 143-144): "When admitted in evidence, however, its probative force must be determined by reference to the circumstances in which it is made and may depend altogether upon the party's source of knowledge." 132 Where conduct occurs pursuant to a statutory obligation, the facts admitted or acknowledged are likely to depend to a large extent on the nature of the statutory obligation. So much appears from the decisions of the Supreme Court of South Australia in Vergis v Brownbuilt Ltd (1973) 5 SASR 591 and Christiansen v J W. Simpson & Co Pty Ltd [1971] SASR 412; see Department of Education and Training v Sinclair [2005] NSWCA 465 at [89] (Spigelman CJ, Hodgson and Bryson JJA agreeing). In the area of compensation payments, the fact of payment has been held to be some evidence, by way of an admission, that the worker had met with an accident arising out of or in the course of employment: see, eg, Way v Penrikyber Navigation Colliery Co Ltd [1940] 1 KB 517 at 527 (MacKinnon LJ) and 529-530 (Goddard LJ). Slessor LJ dissented, on the ground that there were a number of possible explanations for the making of the payment: p 523. 133 In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [25] Gleeson CJ stated: "I agree with what is said by Gummow J as to the care that needs to be taken in identifying the precise significance of admissions, especially when made by someone who has a private or commercial reason to seek to retain the goodwill of the person or persons to whom the admissions are made. Common sense may dictate that they be used with caution by a fact-finder. And it is always necessary for the fact-finder to consider precisely what it is that is being admitted."

The passage referred to in the judgment of Gummow J appears at [66]-[71]. 134 In Huysse v Snowy Mountains Hydro-Electric Authority [1975] 1 NSWLR 401 an injured workman sued the defendant Authority for a neurosis said to have resulted from an accident. The issue for determination by the jury was whether the neurosis was in fact a result of the accident or whether it had a different origin: at 404A, Hutley JA. Mr Huysse had obtained compensation under the Commonwealth Employees' Compensation Act 1930 (Cth) and its successor, the Compensation (Commonwealth Employees) Act 1971 (Cth). For that purpose, a delegate of the Compensation Commissioner had certified that Mr Huysse had suffered post-traumatic neurosis as a result of the accident. The determination by the delegate was tendered as evidence of that fact but rejected by the trial judge. Hutley JA held that the document was inadmissible, primarily on the basis that it was not demonstrated that payment was made pursuant to a decision by an officer who was entitled to make admissions binding on the Authority: p 406E. The right of appeal against a determination did not assist, because, although there was no evidence about the matter, the statutory scheme limited the scope of the Authority to appeal. Samuels JA agreed with Hutley JA. Mahoney JA stated at 411B: "I find difficulty in accepting that these facts, in the present case, would warrant the inference of such an admission. A defendant who has been adjudged liable to pay a sum and pays the sum pursuant to the judgment is not to be taken, in my opinion, to admit that, even before judgment was given, he was in fact liable to pay the sum. Similarly, the fact that a person, having been adjudged liable, does not appeal, would not of itself constitute such an admission, and the plaintiff conceded this. There may be circumstances in which the conjunction of facts relied upon could be seen as an admission, but I have significant doubts whether they should be so seen in the present case." 135 Under s 60AA of the Workers Compensation Act, liability to make the payment is cast on the employer. Although the payment was made by the insurer of the employer, there was no suggestion that the decision by the officer of the insurer was equivalent to a determination by an independent authority, or that the officer who decided to make the payment did not have authority to make decisions on behalf of the employer. Accordingly Huysse, an authority on admissibility at common law under the Commonwealth legislation, gives only limited assistance in considering the weight which might properly be given to a payment of compensation in respect of a particular item of damages, under the Workers Compensation Act. 136 The critical point for present purposes is that the liability to pay for domestic assistance was triggered by the certification by a medical practitioner that the assistance was reasonably necessary, pursuant to s 60AA(1)(a). Making a payment in these circumstances, amounted to little more than an admission that the pre-conditions to the obligation to pay had been satisfied. It was not suggested (nor could it be) that the payment precluded the defendant from challenging the entitlement of the plaintiff to damages for past domestic assistance: in the circumstances, the fact that a medical practitioner had certified in accordance with the provision not being in dispute, the making of the payment had little, if any, probative value. 137 It does not follow, however, that his Honour was at fault in allowing the amount paid by the insurer as damages for past domestic care. At [217] his Honour noted that "Mr Mulray was called by the defendant in an endeavour to explain that such payments were made in error". On a proper understanding of the value of the evidence, that was a false issue. At [219]-[222], his Honour considered in detail the report of a social worker, Ms Sharee Lussick and the evidence of the plaintiff's wife as to the level of support he required. He accepted their evidence and concluded at [223]: "It appears to be that the plaintiff requires prompting to do the very basic things in relation to self care."

After considering submissions made by each party in relation to the proper inferences to be drawn, his Honour concluded at [232]: "I am of the view that the amount paid by the GIO in respect of care was an appropriate amount in all the circumstances. Having regard to the level of the plaintiff's disability, the hourly rate and the quantum of care, is in my view justifiable and appropriate." 138 His Honour's reasons do not suggest that he placed significant weight on the payment made by the GIO as an admission against interest. His Honour formed his own view of the appropriate payment and noted respects in which Mr Mulray, called by the defendant, gave evidence which supported that assessment. To demonstrate that a different view should have been reached on the facts, the defendant needed to demonstrate that the views expressed by Ms Lussick (who was not cross-examined) and the evidence given by the plaintiff's wife, Mrs Vivien Ross, should not have been accepted or did not justify the inferences drawn. There was no attempt to undermine those findings based on that evidence. Accordingly, the challenge to the amount awarded for past domestic care should be rejected.

(e) future domestic care 139 The trial judge awarded an amount for future domestic assistance based on a requirement of three hours of care per day, giving a total of 21 hours per week. As the defendant correctly stated in his submissions on the appeal, his Honour gave limited reasons to support that conclusion. 140 The plaintiff submitted at trial that the current rate of domestic assistance, namely six hours per day, would continue for 10 years, after which the requirement was likely to drop to four hours per day for the remainder of his life. His Honour did not accept that level of assistance and undertook a calculation, as noted, based on three hours per day for the remainder of the plaintiff's life, being a period of 36 years. 141 At trial, and for the purpose of written submissions in this Court, the defendant sought to argue that the plaintiff was not entitled to more than six hours domestic assistance per week, and that s 151K of the Workers Compensation Act, prior to its repeal in 2001, prevented any recovery. That argument was abandoned on appeal. (Section 151K did not have this effect: the drafter of the document may have had s 15 of the Civil Liability Act 2002 in mind, but that provision was not referred to.) On the other hand, the remainder of the submissions with respect to future domestic assistance did little more than pick up the arguments as to the appropriate level of past domestic assistance. As those submissions have been rejected, this Court is left with little assistance as to why the assessment for the future should have reached a different conclusion. 142 Calculations as to the future requirements for domestic assistance must be approached on the same basis as continuing loss of earning capacity, as discussed above. Although the trial judge clearly anticipated some improvement over the years, he stated in relation to the evidence of Mr Mulray, with respect to past circumstances, at [230]: "Further he considered there was 'no light at the end of the tunnel', a review regrettably with which I concur." 143 In Malec v J C Hutton, Brennan and Dawson JJ expressed the view that in making the calculation as to hypothetical situations, "We think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage": 169 CLR at 640. The majority had in fact adopted an approach which involved the assessment of degrees of probability or possibility using percentages, but did not suggest that there would be any error in failing to adopt that approach in particular circumstances. In any event, the exercise undertaken by his Honour, accepting a degree of likelihood that the requirements for domestic assistance would decrease over the years, assessed future needs as being, on average, 50% of past needs. The only complaint which can properly be raised in relation to this assessment is that it appears not to have allowed for the possibility that domestic assistance might become necessary in the future for reasons which were not consequences of the accident. With respect to earning capacity, there was a reduction by the usual figure of 15% for vicissitudes, to which it has been suggested that there should be a further 20% reduction to allow for a possible improvement in the plaintiff's psychological condition. These factors should apply also in relation to future domestic care and the sum allowed should be reduced. I would not otherwise interfere with his Honour's assessment.

Costs 144 Subject to the two variations required with respect to the assessment of damages, the Appellant has been unsuccessful. In broad terms his success may be attributed to 10% of the case, with respect to which he should get his costs. However, with respect to the other 90%, he has been unsuccessful and should pay the Respondent's costs. Combining these two elements, the Appellant should pay 80% of the costs of the Respondent. 145 Because he has been partly successful in relation to his appeal, s 6 of the Suitors' Fund Act 1951 (NSW) is engaged, in accordance with the principles set out in Wyong Shire Council v MCC Energy Pty Ltd (No. 2) [2005] NSWCA 196, as applied in New South Wales v Fahy [2006] NSWCA 64 at [152]. On that basis the Respondent is entitled to an indemnity certificate pursuant to s 6(1) of that Act.

Conclusions 146 The appeal by the defendant with respect to questions of liability should be dismissed. The assessment of damages made by the trial judge should be varied in the following respects:

(a) non-economic loss should be reduced by $24,690 - see [112] above, giving an amount of $111,105; (b) future economic loss should be reduced by 20% - see [122] above, giving an amount of $351,348; (c) the amount allowed for future domestic care should be reduced by 35% - see [143] above, giving an amount of $239,912,

but otherwise the appeal should be dismissed. 147 I would propose the following orders:

(1) The judgment in favour of the plaintiff entered by the District Court on 10 March 2005 in the amount of $1,071,858.07 be set aside and judgment entered for the plaintiff in the District Court in the sum of $879,528. (2) Appeal otherwise dismissed. (3) Appellant to pay 80% of the Respondent's costs in this Court. (4) Grant the Respondent an indemnity certificate under s 6(1) of the Suitors' Fund Act 1951 (NSW), in respect of the appeal. (5) Liberty to the parties to apply within 28 days in relation to the calculation of the amount of the judgment or as to the basis for assessment of costs. **********

22/11/2007 - "par. [27]" to read "par.[33]" - Paragraph(s) par.2

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