Appellants (Defendants) : Freehill Hollingdale & Page

Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18

Henwood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438

March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424

1 MALCOLM CJ: This is an appeal against a judgment in the District Court dated 16 December 1999 by which his Honour Judge Macknay gave judgment for the respondent by way of the sum of $275,000 damages for negligence, in addition to payments previously made by the appellants to the respondent by way of workers' compensation and ordered that the appellants pay the respondent's costs of the action to be taxed.

2 The central issue raised by the appeal was whether the evidence led before the learned trial Judge was sufficient to enable his Honour to conclude, as he did, that on the balance of probabilities the accident by which the respondent was injured was caused by the negligence of the appellants.

3 The respondent's claim against the appellants was that on 28 August 1995 in the course of his employment as a farm worker by the appellants, when riding a Honda agricultural motorcycle in an easterly direction along a laneway between paddocks, he was injured when he collided with a ringlock gate. It was common cause that at all material times the appellants carried on business as farmers in partnership and owned and occupied a farming property known as "Takarlarup Farm" at South Stirlings. The respondent claimed that the accident and his injuries were caused by the negligence of the appellants.

4 A number of particulars of negligence were alleged but there were two particulars which were of particular relevance. The first was that the appellants:

"... failed to mark the ringlock gate with white polythene piping, posts, or other conspicuous material so as to make its presence apparent to persons using the laneway."

"caused or permitted the ringlock gate to be closed across the laneway when it was inconspicuous and thereby hazardous to users of the laneway."

The essence of the respondent's case was that, when travelling east in the early morning, it was either impossible or not easy to see the gate until it was too late and that his failure to see the gate was the cause of the accident.

5 The appellants denied that they were negligent and said that the respondent had all the necessary experience and skill so as to enable him to manage the farm as if it was his own. He had himself arranged for the installation and placement of the fences and gates on the farm and was capable of carrying out the management and operation of the farm without the need for any prior consultation with the appellants. The appellants asserted that the accident was caused by or contributed to by the respondent's own negligence.

6 There was no dispute about the surrounding circumstances. Both the respondent and the male appellant were brothers. They had been brought up on the family farming property. The respondent attended high school to the age of 16, spent a year at Muresk Agricultural College, and then returned to the family property. He then spent some years working the property for part of that period in partnership with his younger brother and his mother. In or about 1987 the respondent and his wife left the family property and moved to the subject farm, having taken a lease of it with an option to purchase. The respondent commenced farming operations there. The male appellant was born in 1946 and he is approximately two years older than the respondent. The male appellant also left school at age 16 and commenced farming. He then spent two years on National Service. On his return he commenced to farm a conditional purchase block at Cape Riche, about 80km from the family property, that had been allocated to his father and him.

7 In 1989 the respondent experienced financial difficulties and the appellants agreed to take over the farm lease and the option to purchase, which they did. The appellants subsequently duly exercised the option to purchase and became the owners of the farm. The respondent and his wife, however, continued to live in the house on the farm.

8 The farm comprises an area of about 2,000 acres. When the appellants took the farm over, the fences were run down and attention to that was a priority. The male appellant decided to alter part of the layout of the paddocks so as to create what was described as a "lane" through a portion of the property, for the purposes of stock movement. After designing the general layout, the male appellant then arranged for fencing materials to be supplied to the respondent. Over a period of some years the respondent carried out fencing work, including the construction of the lane fencing. The lane was two chains (about 40m) wide, and approximately 2.6km in length. For most of its length the lane ran in an east/west direction, its western end being close to the farmhouse and the shearing shed. On each side of the lane were fenced paddocks, with gates which opened onto the lane. There were also a number of fences across the lane, each with a gateway in the middle. The evidence of the respondent was that there were six in number. Each gateway was 14 feet wide and each had fitted to it a form of "cocky" gate 1.5m high, constructed by the respondent.

9 The gateway where the accident occurred was bounded on each side by a timber straining post. The adjacent wire fence in the paddocks on either side of the laneway had a length of black polythene tubing along the top strand of wire. The respondent said that the polythene was there so that the sheep would see the fence and not put pressure on it. The gates from the lane into the paddocks had tubular steel frames. The appellants had intended to install steel swinging gates in the fences across the lane in due course.

10 The laneway fences constructed by the respondent consisted of 7-9-30 ringlock wire with a star picket at one end which was fed into loops of wire on the adjacent strainer post to secure it. The other end was attached to a gate post with wire. The respondent's evidence was that these were not true "cocky" gates. The latter usually had "a stick on either end and probably one or two in the middle". Each of the other laneway gates constructed by the respondent on the farm were constructed in the same way. The respondent said that he had not put any star pickets in the middle of the laneway gates, although they would have assisted in the gate remaining upright and would also enable sheep to see the gate. However, he had thought the replacement steel gates would be installed by the male appellant within a matter of months. It had also been intended that a gravel surface be laid in the laneway at the same time as the "cocky" gates were replaced.

11 The male appellant confirmed that it was "only ever intended" that the "cocky" gates be temporary. The actual gate heights were to be determined when the gravel surface was laid, so that the gates would be replaced at that time. Subsequently, however, there had been a downturn in the wool price and the work had been postponed. The male appellant said that he had never seen a "cocky" gate with polythene piping on it. Any marking was by way of a vertical stick. He also said that after a "cocky" gate was opened, it was usually "thrown away" onto the ground. Piping would cause a problem when that was done so it would be necessary to walk around the gate instead of over it. His evidence was that it was "normal procedure" to put a vertical stick in the middle of the gate, and that it was a "fair assumption" that it was this that would make it obvious to a person travelling down the lane that there was a gate across it.

12 The respondent said that on opening a "cocky" gate he would place it back against the fence. He also said that, prior to the accident, he had not seen any need to attach anything to the "cocky" gate to remind himself that it was there. The male appellant, however, agreed that a gate with a frame was more visible than a "cocky" gate as constructed.

13 Following the takeover of the farm by the appellants, the respondent said that he worked there full time for three or four years. After that time, there was insufficient work for him to be engaged full time on the farm, and the respondent then took on some outside contracting work. Apart from one or two crops, the appellants had run "dry" sheep, namely wethers, on the farm. According to the respondent, in 1995 the stock numbered about 5,000. That form of farming was "low maintenance", he said. The male appellant described the farm operation as being like a "hobby".

14 The respondent's evidence was that he worked as a "farm hand" and said that his brother had "total control" in the running of the farm. It was, however, common ground that the day-to-day operation of the farm was left to the respondent, while his brother, apart from busy times such as shearing, would only come to the farm about once a month. The respondent said that he had nothing to do with the ordering of materials or was otherwise involved in purchases except when instructed to do so by his brother. The respondent said that he could not employ any outside assistance without his brother's consent. None of the managerial decisions were made by him and he said there was "a big difference to running the farm yourself and working virtually as a farm hand". The male appellant, however, did arrange such things as sales of sheep, shearing, crutching and drenching. Sales occurred at least twice a year, shearing once a year, and crutching and drenching about four times a year, according to the respondent's evidence.

15 Transport around the farm was by way of a Honda motorcycle which had come from the respondent's brother's other property. The respondent was an experienced motorcyclist, having ridden such machines for over 25 years. The farm motorcycle was used to check the sheep and the respondent said he also used it "95 per cent of the time" to move sheep. As to the method of using the laneway, the male appellant said:

"It's mainly used for ease of moving stock from the shearing shed to their designated paddock, or wherever. It means you don't have to go past other mobs of sheep and it's very convenient (for) access from one end of the farm to the other, either by bike or vehicle. All the gates were always left open on the laneway, so it was only virtually a few minutes from one end to another."

16 When asked whether it was the case that the gates in the lane were kept open for the purpose of traverse, the male appellant said, "[t]hat's the whole principle". The respondent travelled up and down the lane frequently, and said he might go down the lane "a couple of times" each day. Although there was no farm utility, the respondent had his own vehicle which he used on the farm "occasionally".

17 On the day of the accident, namely Monday 28 August 1995, crutching was due to commence. A team of workers with a portable cradle was due to attend the farm on the day. The cradle was to be erected next to the shearing shed. According to the respondent, approximately 1,500 sheep would ordinarily be put through each day, with the sheep for the day being yarded at the shearing shed prior to the commencement of crutching. The sheep would be removed from their paddocks and brought down the laneway. They would be returned to their paddocks in the same way. The system of work involved the appropriate gate in the laneway being closed and the paddock gate being opened, so that the sheep would be obliged to move in the desired direction. The respondent had arranged for assistance to put the sheep through the crutching operation by a friend of his son, one Brian Lesueur. Mr Lesueur said that he went to the farm at about 7.00am on the day in question. The respondent was there and the crutching team was also present when he arrived. Mr Lesueur said there were also sheep there. The respondent had later left on the motorbike to bring back sheep.

18 At about noon when the respondent had not returned, Mr Lesueur said that he and the respondent's wife ("Mrs Lock") had driven up the lane. They found the respondent sitting against a gatepost on the left side of a gateway in the lane, the motorcycle being tangled in the wire of the "cocky" gate. There was a small skid mark on the same line as that taken by the motorcycle, but about 1.5-2m back from it, Mr Lesueur said. Mr Lesueur also said that at 8.00 o'clock that morning there had been dew on the ground, but it had just started clearing up, and the sun was almost right out.

19 Mrs Lock gave evidence that the day had been clear. She also recollected that the respondent had gone off up the lane at about 8.00am on his motorcycle. Mr Lesueur had come to the house in search of him at about noon. She had travelled with Mr Lesueur down the lane in the latter's vehicle. She said they found the respondent at the fourth gateway along the lane. The gate was open and the motorcycle was entangled in it. There were no sheep in sight in the lane. Mrs Lock thought that they may also have been to the paddock the day before and that Mr Lesueur had been there on that day as well. However, Mr Lesueur said that he had not been present at the farm on the previous day. Asked about his experience with gates, Mr Lesueur said that he had seen other "cocky" gates like those in the lane, and also gates with poles in the middle, polypipe and pieces of rag attached, for the purpose of trying to make a gate more visible.

20 The respondent gave evidence that he had no recollection of the events of 28 August 1995. His first recollection of accident related events began about three weeks later when he was in Royal Perth Hospital. He was not able to say whether sheep had been yarded the day before. He did say that, if he had travelled east along the lane at about 8.00am in the morning of 28 August 1995, the sun would have been quite low over the lane and directly in front of him. His evidence was that he assumed he had earlier closed the gate with which his motorcycle had collided. He also said that it was a "fair bet" that he would have done so, given his mode of operation, and as the gate was closed to access sheep in the adjoining paddock. The male appellant had attended the farm the following day, by which time the motorcycle had been moved and the gate shut. He said, however, that the gate to the paddock to the south of the lane had been open when he arrived. He agreed that, given the date and weather conditions, the respondent would have travelled directly into the sun, which would make the gate "even more difficult to see". Apart from the evidence of witnesses, photographs and a video of the particular gate were produced, together with some other photographs. These demonstrate that, on the morning in question, there could be little doubt that the gate would be difficult to see.

21 Having reviewed the evidence and before making any findings in relation to it, the learned Judge set out the relevant law. His Honour said:

"The duty of an employer 'is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of each case': Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J."

22 In relation to the application of that duty to a situation where an employee works outside with a measure of freedom relating to the manner of performance of his duties, the learned Judge cited the well known passage in the joint judgment of Mason, Wilson, Brennan and Dawson JJ in McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311 - 312 as follows:

"In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence: Wheare v Clarke [1937] HCA 7; (1937) 56 CLR 715 at 723; Henwood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438 at 444. The employer is not exempt from the application of this standard vis-à-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk."

23 Their Honours also said in McLean v Tedman, supra, at 313 that:

"The employer's obligation is not merely to provide a safe system of work, it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed (1983), pp480-481. And in deciding whether an employer has discharged his common law obligations to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."

The duty of care is personal to the employer and is non-delegable: Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 688 per Mason J. The duty extends to the adoption of a safe system of work, the provision of a safe place of work as well as the provision of proper plant and equipment.

24 In determining whether there had been a breach of duty in this case, his Honour referred to a number of decisions of the High Court, including, Bus v Sydney City Council [1989] HCA 29; (1989) 167 CLR 78 at 86 and 89 per Mason CJ, Deane, Dawson and Toohey JJ, which stressed that the question whether there had been a breach of duty in any particular case was a question of fact. It was also noted that changes in social and other conditions can affect standards of care and reasonableness, so that decisions about standards at earlier times may be of limited relevance: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 308 - 309 per Mason, Wilson and Dawson JJ. Reference was also made to the following passage in Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491 at 503 per Windeyer J:

"[D]ecisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application ... That would lead to the substitution of a number of rigid and particular criteria for the essential flexible and general concept of negligence."

25 That passage was approved by Mason CJ, Deane, Dawson and Toohey JJ in Bus v Sydney County Council, supra, at 89. Similarly, in Bankstown Foundry Pty Ltd v Braistina, supra, at 308, Mason, Wilson and Dawson JJ cautioned against any "attempt to arrive at conclusions about what changing standards of reasonable care require merely by comparing the decisions in different cases. The approach which the learned Judge in this case sought to adopt was to recognise that whether, in relation to a foreseeable risk of injury, sufficient care was exercised in the circumstances, the question was "ultimately a matter of judgment": Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 162 per Gibbs CJ, Mason, Wilson and Dawson JJ.

26 The learned trial Judge also referred to Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 and, having set out the view of the majority, Mason CJ, Deane and Toohey JJ, at 416, he also set out the following passage in the judgment of Gaudron J at 420 - 421 as follows:

"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 This is a reflection of the approach which was adopted by Lord Wilberforce in McGhee v National Coal Board [1972] UKHL 7; [1973] 1 WLR 1 at 6 in which it was said:

"But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail - a logic which dictated the judgments below. The question is whether we should be satisfied in factual situations like the present, with this logical approach. In my opinion there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, an injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the additional to the risk caused by the breach of duty, which caused or materially contributed to the injury? In many cases, of which the present is typical, this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound cases. And if one asks which of the parties, the workmen or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creater of the risk who, ex hypothesi, must be taken to have foreseen the possibility of damage who should bear its consequences."

28 Gaudron J did note at 420 that the House of Lords had subsequently decided in Wilsher v Essex Area Health Authority [1987] UKHL 11; [1988] AC 1074 that the view of Lord Wilberforce as expressed in McGhee should not be adopted as representing the law in the United Kingdom, while in Canada there had been a similar result in Snell v Farrell (1990) 72 DLR (4th) 289 at 301.

29 The learned trial Judge noted that in Chappel v Hart (1998) 195 CLR 232 the High Court by a majority (Gaudron, Gummow and Kirby JJ, with McHugh and Hayne JJ dissenting) found that the doctor's negligent failure to advise the patient of the risk of physical injury materially contributed to that injury. Gaudron and Kirby JJ reached that conclusion because the degree of risk would have been reduced if the operation had been performed by the most experienced surgeon available. Gummow J reached the same conclusion because the patient had specifically asked the doctor about the risk in question, and would not have undergone the operation in his hands, if he had given the necessary warning. Gaudron J said in her judgment at [10] at p 39 that the duty was imposed in that case because:

"... in point of legal principle, it was sufficient, in the ordinary course of events, to avert the risk of physical injury which called it into existence (Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 422, per Gaudron J) and the physical injury having occurred, a breach of the duty is treated as materially causing or contributing to that injury unless there is 'sufficient reason to the contrary' (Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649 per Dixon J. See also Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 467, per Mason J)."

30 In Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649 Dixon J said that:

" 'Breach of duty' coupled with an accident of the kind that might be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach."

31 In Chappel v Hart Kirby J said in par [93] at 273:

"Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie cause or connection will have been established (Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649). It is then for the defendants to show, by evidence and argument, that the patient should not recover damages. In McGhee v National Coal Board ([1973] 1 WLR 1 at 6), a Scottish appeal, Lord Wilberforce explained why this was so. Although Lord Wilberforce's statement in McGhee has proved controversial in England (Wilsher v Essex Area Health Authority [1987] UKHL 11; [1988] AC 1074 at 1087, 1090), it has received support in this court (See, eg, March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 514; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 420-421). Its principle has also been accepted by international experts such as Professor Giesen. I find Lord Wilberforce's exposition compelling (McGhee [1972] UKHL 7; [1973] 1 WLR 1 at 6 ...) ..."

"Here, the injury to Mrs Hart occurred within an area of foreseeable risk. In the absence of evidence that the breach had no effect or that the injury would have occurred even if Dr Chappel had warned her of the risk of injury to the Laryngeal nerve and of the consequent risk of partial or total voice loss, the breach of duty will be taken to have caused the injury (Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 420-421)."

"In those circumstances the task of Dr Chappel was to demonstrate some good reason for denying to Mrs Hart recovery in respect of injuries which she would not have sustained at his hands but for his failure adequately to advise her."

The conclusion reached by Gummow J in par [81] at 262 was that:

"In the present case, the obtaining of adequate advice as to the risks involved was the central concern of Mrs Hart in seeking and agreeing to undergo the surgical procedure in question. It would, in the circumstances of the case, be unjust to absolve the medical practitioner of legal responsibility for her injuries by allowing decisive weight to hypothetical and problematic considerations and what could have happened to Mrs Hart at the hands of some other practitioner at some unspecified later date and in conditions of great variability."

32 I have set these authorities out because they governed the approach of the learned trial Judge to the present case. The learned Judge, having referred to those authorities, commented that in Chappel v Hart:

"102 There was thus a relatively close temporal connection between the breach, constituted by the failure to warn, and the injury, which resulted from the claimant's decision to then undergo the procedure.

103 However, the gloss that Kirby J, on first impression, appeared to place on Lord Wilberforce's statement in McGhee, that an evidentiary onus may shift once it is shown a breach is 'closely followed by damage' (my italics) was related simply to the issue of what might have happened had the plaintiff postposed the procedure and it was ultimately done by another surgeon." (See per Kirby J pars [96] - [99] at 276 - 278)."

33 This approach was followed by the learned trial Judge in the present case as follows:

"Although the effect of Chappel is not in all respects clear I consider that if, in a case like the present, a breach of duty is established, that is sufficient to justify an inference, in the absence of evidence to the contrary, that the accident did result from the breach."

34 So far as the issues were concerned, the learned Judge noted that while the respondent's allegation in the statement of claim that he had collided with the "cocky" gate on the motorcycle was denied by the appellants in their defence, it was common ground at the trial that such a collision occurred. There were three issues at the trial. The first was whether the risk that the respondent might ride along the lane and not see a "cocky" gate, or not see it until it was too late, so as to collide with the gate, was not "far-fetched" or "fanciful" but was a "real" risk so as to be reasonably foreseeable: see Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 per Mason J.

35 If that question is answered in the affirmative, the second issue was to determine what a reasonable employer should do in response to the risk. In that context Mason J (with whom Steven and Aicken JJ agreed) said in Wyong Shire Council v Shirt at 47 - 48:

"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

36 The third issue was whether the respondent was guilty of contributory negligence.

37 The facts as found by the learned trial Judge were that, to prepare for the crutching, the respondent removed sheep from their paddock(s) and brought them along the lane to an area adjacent to the shearing shed. His Honour was not able to determine whether that was done on Sunday or early on Monday morning. In the absence of any suggestion to the contrary, it was found that it occurred at one or both of those times. Prior to moving the sheep into the lane, the respondent closed the "cocky" gate next along the lane. There was no evidence as to the usual course (if any) of such an exercise, namely, whether sheep further away were first moved or those closest to the shearing shed were first moved and it was not possible to make any finding in relation to that matter.

38 His Honour found that the respondent did collide with a closed "cocky" gate. The "cocky" gate was, it was conceded by the respondent's brother, "in any event it is apparent on the evidence, difficult to see when in a closed position".

39 The respondent rode down the lane at a time when the morning sun would have been relatively low in the sky over the end of the lane. He was heading east towards the sun. The respondent travelled down the lane in order to draft further sheep and it is possible he might have looked about for sheep, and became distracted as a result, so that he failed to keep a proper lookout. The respondent was apparently the only person who regularly went down the lane. He traversed it daily and was familiar with it and the gates. He was experienced in farm work and his role and responsibilities on the farm were more than those of a typical farm hand. He was not, however, the farmer.

40 The respondent had himself constructed the "cocky" gates in the laneway without additional uprights in the belief that such would only be temporary. If the respondent closed a "cocky" gate in the lane, and then forgot that fact, or erred in recollection as to which gate had been closed, the risk that he might not see the gate when travelling down the lane on the motorcycle, particularly when the sun was low in the sky over the lane before him, was not insignificant. The finding by the learned Judge that the respondent had been the person who had closed the "cocky" gate the previous night was not disputed.

41 For the reason mentioned, there would ordinarily only be one closed gate. Although not a fast rider, the respondent might travel down the lane at a speed of up to 30kph, so that a collision with a gate could result in substantial injury.

42 The "cocky" gates in the lane could have been made far more visible extremely easily just by the addition of uprights consisting of star pickets, or alternatively, by the use along the top wire of plastic piping or other solid material. The learned Judge then proceeded to make the following findings which are set out in pars [113] - [125]:

"113 In my view the risk that the plaintiff might forget that he had closed a cocky gate in the lane, or simply not be mindful that he had closed a particular gate, and then ride down the lane and not see the gate, or not see it until it was too late and then collide with that gate must be said to have been reasonably foreseeable.

114 The real question is whether or not the defendants were obliged to respond to that foreseeable risk of injury. This is a case where, because the response would have been relatively easy, it is necessary to guard against a simple application of hindsight and one where it is necessary to keep steadily in view the fact that a response was only required if a reasonable employer in the position of the defendants would have felt obliged to so respond.

115 There are inevitably dangers in any work place for those who are forgetful or otherwise act without care, and the obligation of a reasonable employer is not to eradicate every conceivable danger. That is particularly the case on a farm which extends over a large area, and necessarily contains many hazards for the unthinking such as fences, dams and the like.

116 Nonetheless, given the lane was traversed regularly by the plaintiff on a motorcycle, the degree of difficulty in seeing the gate, the likelihood that serious injury would result from a collision between a motorcyclist and a closed gate, and the possibility that the plaintiff might be forgetful or distracted, travel down the lane at a time of impaired visibility, or for some other reason not see the gate, either in time or at all, I think the gate, as constructed, represented a fairly obvious danger and that the defendants had an obligation to at least reduce the risk of the gate not being seen.

117 The simple expedient of adding star pickets as uprights in the middle of the gate would have greatly increased its visibility, and would also have brought about a material reduction in the risk of injury.

118 As already stated, as a matter of law the defendants had a duty of care to the plaintiff, their employee, and that duty being non-delegable could not be discharged simply by leaving it to the plaintiff to be responsible for his own safety, particularly when there was no direction to the plaintiff that he was so responsible or must, as part of his duties, actively monitor the farm for hazards.

119 Further, it was the decision of the defendants alone not to incur the expense of framed gates when the lane was constructed, and that brought about the relevant state of affairs, the cocky gate being constructed and installed by the plaintiff in response to that decision, and as a temporary measure, on the understanding that the gate would be replaced within a few months.

120 Instead of the gate being so replaced, the matter was left to drag on.

121 The responsibility for recognising that there was a need to improve the gate was, in the circumstances, necessarily in the circumstances that of the defendants as employers.

122 For those reasons the defendants were in my opinion in breach of their duty of care owed to their employee, the plaintiff.

123 This is then a case where although the precise mechanism of the accident cannot be established by the plaintiff, there was a breach of duty and then an accident, and injury, of the very kind that would be likely to follow from the breach.

124 In those circumstances an evidentiary onus shifted to the defendants to show that the breach did not make a material contribution to the plaintiff's injury, and I think it is plain that in the circumstances here the defendants would be unable to discharge that onus, and have failed to do so.

125 The plaintiff's claim must therefore succeed."

43 It was submitted that the findings of fact did not justify a finding, on the balance of probabilities, that negligence was established. Likewise, it was submitted that no causal connection had been established between the injuries sustained by the respondent and the negligence of the appellants as found by the learned trial Judge.

44 The respondent had no recollection whatever of the accident. In those circumstances, it was submitted that it was not open to the learned trial Judge to make a finding of negligence against the appellants on the ground that they had been in breach of their duty of care as the respondent's employers. The evidence of the respondent was that he had gone up and down the laneway no less than twice a day in the previous two years prior to the accident. This is equivalent to some 700 journeys up and down the laneway, making use of the laneway gate system in the manner I have described it.

45 The learned Judge found that there was a reasonably foreseeable risk that the respondent might forget that he had closed a "cocky" gate in the lane, or simply not be mindful of the fact that he had closed the gate and, not being able to see it until it was too late, so that he collided with the gate. In my opinion, although at first blush this approach might seen unduly favourable to the respondent, it cannot be said that the risk was far-fetched or fanciful: cf McLean v Tedman, supra, at 311 - 312 per Mason, Wilson, Brennan and Dawson JJ. The event which occurred was, on the face of it, a materialisation of the risk.

46 It may be accepted that the burden of proof of the claim in negligence rested on the respondent: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [104]; [2000] HCA 18; (2000) 74 ALJR 743 at 765; [2000] HCA 18; (2000) 170 ALR 594 at 623 per Kirby J. It was submitted that the corollary of this is that in an action for negligence for personal injuries, if a plaintiff does no more than adduce evidence which gives rise to conflicting inferences of equal degrees of probability, so that the choice between them is merely a matter of conjecture, or requires a court to choose between guesses, or where the possibilities are not unlimited, it is not open to a court to choose one guess as more likely than the others: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 304 - 305 per Dixon CJ.

47 In this case it was submitted that there was no evidence upon which a finding of negligence could be made. The onus of proof was on the respondent to prove negligence. It was submitted on behalf of the appellants that the respondent bore the onus of proving that he would not have collided with the gate, if the appellants had caused the gate to be constructed with a post or star picket in the middle or fitted with polythene piping to make it more visible. This in turn, as was submitted, required the respondent to establish that it was reasonably foreseeable that he would collide with the gate if such steps were not taken.

48 There were six sets of gates. The respondent, himself an experienced farmer, had constructed the gates two years before the accident. In the meantime, he had travelled up and down the laneway hundreds of times prior to the accident. In my opinion, these factors do not negate the foreseeability of risk. The number of journeys could well have the effect that the appellant could forget that a particular gate had been closed by him, notwithstanding his evidence that he never felt the need to remind himself that the particular gate "was there".

49 The respondent's evidence was that the laneway gates:

"... were the only cocky gates that were made in that format on the farm. Most other cocky gates had certainly posts on either end and possibly one or two in the middle."

50 The operations were such that if the respondent was going to get sheep, he would assume that the gate would be open. He would close the gate when he got to the relevant paddock, before he went in to get the stock. If he was taking them away he would assume that the gate would be closed. He did not see a need to attach anything to the gate to remind himself "that it was there".

51 There was evidence that polypipe or corrugated iron was put on fences as a barrier for the sheep and that a "cocky" gate usually had one or two posts between the ends to hold up the gate so the sheep would not push against it. There was no evidence that the inclusion of these items was intended to enable humans to see the fence or the gate. In my opinion, that was no answer. It is clear from the video and photographic evidence as well as being a clear inference available on the evidence that one or more posts between the two ends would make it much easier to see the "cocky" gate than it would be without them.

52 It may be accepted that the respondent never raised with the appellants the need to put anything more on the "cocky" gate in question or any of the others in the laneway to make it or them easier to see. It may also be accepted that neither the respondent nor anyone else employed on the farm complained that they could not see the gate. Finally, it may be accepted that it was probably the respondent himself who had closed the gate the night before when taking sheep back to the adjacent paddock.

53 Counsel for the appellants made a number of submissions in support of the contention that there was no basis for a finding of negligence on the part of the appellants.

54 The first was that the respondent led no evidence that he collided with the gate because he could not see it. In my opinion, the evidence was such that it was clearly open to the learned Judge to conclude that, because of the position of the sun at the time of the accident, the inference was open on the balance of probability that the respondent could not see the gate because of the angle of the sun or, if he did see it, it was too late for him to avoid colliding with the gate. The inference was also open that the appellant had forgotten that he had closed the gate in question the previous night.

55 The motorbike had left a skid mark in the left wheel rut in the direction the respondent was travelling, just in front of the gate. This skid mark was only a metre or so short of the gate line when the motorcycle was on a direct line towards the gate. The inference is that the respondent saw the gate, but too late. The system of work involved leaving the laneway gates open unless sheep were being moved in or out of a paddock. When the operation had been completed the laneway gate would be left open. The purpose of this was to ensure that apart from times when sheep were being moved, vehicles could drive up and down the laneway without people having to open and close the laneway gates.

56 It is at the heart of this case that it was the employer's responsibility to devise a safe system of work. This included the need to allow for the possibility that an employee could be forgetful, inattentive or even careless in relation to the operation of the safe system of work: McLean v Tedman, supra, at 313. In my opinion, the evidence before the learned Judge justified a finding that the placement of a single star picket or other upright post in the middle of the gate would have been sufficient to remind the respondent.

57 Although the chance of an employee in the position of the respondent forgetting that the gate was closed may have been small, there was nonetheless a real risk that if that happened and there was nothing put on the gate to advertise its presence in the conditions likely to be encountered, a person travelling east early in the morning could fail to see the gate. The evidence suggested that one star picket in the centre of the "cocky" gate would be enough to alert drivers in or on an oncoming vehicle to the existence of the gate.

58 It was submitted that there was no evidence about the speed of the motorcycle at the relevant time. There was some evidence in the nature of similar fact evidence that the respondent was not someone who had ridden fast in the past. Mr Lesueur, who went to the scene with the respondent's wife, said that they found the respondent sitting propped up against the strainer post. The skid mark was about half a metre long and had started about a metre and a half to two metres before the gate. There was some dispute between the respondent's wife and Mr Lesueur regarding where the motorbike ended up. Mrs Lock placed it more to the right, but it was accepted that their difference was immaterial on the issue of causation.

59 The probable explanation for the gate being closed was that on the previous night sheep had been brought out of the paddock adjacent to the gate in question; the gate had been left open on the basis that the sheep could find their own way back into the paddock.

60 The other possible cause of the accident is that the respondent did see the gate, but did not see it in time, as a result of which he braked. In either case, the skid mark being so close to the gate is consistent with the respondent only seeing the gate at the last moment. There is no suggestion of loss of control of the motorbike, because it ran directly into the sun. On the balance of probabilities, the inference was that the respondent was riding straight ahead and did not see that the gate was closed until it was too late to avoid colliding with the gate. This was a risk of physical injury which was foreseeable and gave rise to a duty on the part of the employer in accordance with McLean v Tedman. The position then was that, as explained by Gaudron J in Chappel v Hart, supra, at par [10], p 239:

"... the physical injury having occurred, breach of the duty is treated as materially causing or contributing to that injury, unless there is 'sufficient reason to the contrary' (Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649 per Dixon J. See also Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 467, per Mason J)."

See also per Gummow J at pars [66] - [68] at 257; and per Kirby J at par [93] at 273 - 274.

61 In this case the risk which materialised was that, because the gate was difficult to see early in the morning, there was a risk of a collision if the respondent had forgotten that he had left a laneway gate closed.

62 In Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, there was no direct proof of the negligence of the defendant in relation to a motor vehicle accident. It was acknowledged that where direct proof was not available, negligence could be proved by circumstantial evidence if the circumstances gave rise to a reasonable and definite inference. It was important, however, that the circumstances must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is merely a matter of conjecture or surmise: per Dixon, Fullagar and Kitto JJ at 358. In this case, I consider that the circumstances were such that as a result of the proved difficulty of seeing the gate, the fact that the respondent had forgotten that he had left it closed, and the absence of any suggestion of excessive speed, it is a reasonable inference that the collision was caused by the materialisation of the risk which the appellants, as the respondent's employers, should have foreseen: cf Richard Evans & Co Ltd v Astley [1911] AC 674 at 687 per Lord Loreburn.

63 The final point for consideration is that, given that the appellants as the respondent's employers, should have reasonably foreseen that without some additional uprights or at least one upright in the middle of the "cocky" gate, it might be difficult to see, the respondent could and should

have done something about the matter himself so that he was guilty of contributory negligence. His position was that he was managing for the appellants as his employers a farm which he was previously operating as proprietor. He was in a practical sense the manager of the farm which the male appellant visited about once a month. It was considered that the risk was reasonably foreseeable by both the male appellant and by the respondent. The risk could have been substantially reduced, if not eliminated, by the addition of one star picket or post in the centre of the gate. It was not done originally because it was only intended to be temporary pending the installation of steel swinging gates.

64 The position is that there is no cross-appeal from the finding made by the learned trial Judge that there was no contributory negligence on the part of the respondent. Although the respondent said he was employed as a farmhand, the appellants maintained that he was employed as the farm manager. The respondent's evidence was that the male appellant:

"... virtually had total control of the running of everything and he would instruct me as to what to do next."

65 In my opinion, the evidence established that there was a reasonably foreseeable risk that the gate would be difficult to see without putting something on it to make it more visible, such as the simple expedient of putting a star picket in the middle. It was also reasonably foreseeable that the respondent might drive up the laneway in circumstances where a gate had been closed and he had forgotten that fact. The inference is clearly open on the balance of probabilities that both of these factors were present when the accident happened. There was nothing to suggest that the respondent was travelling very fast or, in particular too fast for his own safety. The circumstantial evidence is that the motorcycle must have stopped very quickly.

66 For these reasons I consider that the appeal should be dismissed.

67 PIDGEON J: I agree with the reasons of the Chief Justice.

68 The facts relating to the accident are set out in the reasons of the Chief Justice. The respondent has no recollection of the accident, but I would infer from the circumstances of the accident and the marks at the scene that the respondent drove towards the gate by approaching it on a straight road. It must be inferred that he failed to see that the gate was closed across the road. The evidence showed that the gate was difficult to see and that a proper precaution would have been to place some type of marker on the gate so it could be seen when it was closed across the road.

If the person injured were an employee of the appellant but subordinate to the respondent, who was the farm manager, then there would be no question that the appellants would be liable for that negligence. That would be clear on the authorities referred to by the Chief Justice. If, however, the situation were reached whereby an employer, who was not in the position of being able to appreciate or to attend what is required to make premises safe, delegates to a competent manager the task of examining the premises in detail with a view to eliminating risks and the manager were then injured by reason of failing to carry out the duty entrusted to him, then can such manager claim that the employer is liable in negligence? Facts giving rise to this possibility are set out in par 6 of the defence.

69 The answer to this question lies in examining the principles referred to by the House of Lords in Wilsons and Clyde Coal Co v English [1937] UKHL 2; [1938] AC 57 which case has been consistently followed in Australia: (see Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672). The respondents in that case owned a number of collieries. They appointed agents and mine managers to ensure that safety requirements were carried out. If the agent were negligent, then at that time, the owners would not be liable vicariously for the agent's negligence if the agent were in common employment with the injured worker. Their Lordships held that the agent was not in common employment with the injured worker, as the agent was performing a personal and non-delegable duty of the owner. The defence of common employment was not therefore available and the owners remained vicariously liable for the agent's negligence. Lord Wright (at 80) in explaining these principles referred to the analogy of the liability of a shipowner under the Carriage of Goods by Sea Act (1924) (Cth) which required a shipowner to exercise due diligence, or to take reasonable care to provide a seaworthy ship. His Lordship said that the shipowner is almost certainly not an expert naval architect, engineer, or stevedore. His Lordship said that as far as he knew it had never been claimed that this obligation is fulfilled by the shipowner taking reasonable care to appoint a competent expert; the shipowner is absolutely held to the fulfilment of the obligation. It is the obligation which is personal to him, and not the performance. This would not answer the question that if the expert naval architect or engineer failed in the duty of determining an aspect of the seaworthiness of the ship, and were injured by reason of that duty not being carried out, then could the naval expert or engineer successfully bring an action? To put the question another way, if an individual employer, not being qualified to carry out the duty himself sets up a safe system of work by employing a competent manager to deal with matters within that manager's expertise, and the manager himself is

injured by reason of his own negligence, is the employer liable? However, this was not an issue raised by counsel for the appellant. Nor do I consider that the facts in the present case fall within this area.

70 The facts do not show that the appellants were in the position where they could not be expected to attend to such details as providing warning signs on gates, and, being in such a position, delegated that task to the respondent. The appellants had been taking part in managerial decisions in conjunction with the respondent and had made decisions in respect of the gate itself. They were also in a position to see and appreciate the danger. Although the pleading makes reference to some facts that might bring it within this area, I do not consider that the appellants were maintaining that they were not liable on this account. I would also see the appellants as having an onus to show that they carried out their duty to provide a safe system of work by properly entrusting the task to the respondent, and the respondent himself was injured by a failure to carry out the task entrusted to it. This has not been established.

72 IPP J: I have read the reasons of his Honour the Chief Justice and the Hon Justice Pidgeon. I am in agreement with those reasons and have nothing further to add.