Contributory Negligence
83 The trial judge, correctly, made findings on matters that had been argued before him even though, given his finding concerning voluntary assumption of risk, they did not affect the order he made. One such matter was an allegation of contributory negligence by the plaintiffs.
84 Though the trial judge, at [84], made a finding that Sally Barton, the daughter of Peter and Jennifer, was telephoned by Winsor and that "she interviewed him in part", he makes no finding about what that "interview in part" involved. However, it is implicit in the way his Honour dealt with the topic of contributory negligence that nothing of substance beyond fixing a time and place for a further interview occurred. No counsel suggested otherwise on the appeal.
85 Peter was not well enough to give evidence at the second trial. The transcript of his evidence at the first trial was received in evidence instead.
86 According to Peter's evidence, on the day when he knew Winsor was due to come for an interview, he was droving cattle along a road, to take them to another property where they were to be agisted. His evidence includes the following passages:
"Q. If you were going to appoint a time to interview him for a job, then how did you expect him to know where you were, if at least for part of the day you were going to be away from the homestead on a road that you would not expect him to use to travel to the homestead?
A. I made arrangements with the CES to meet him on the road where we were taking cattle down the road.
…
Q. How do you know that it suited him to meet you on the road whilst you were droving the cattle?
A. I made arrangements with the CES.
Q. But how did you know it would suit Mr Winsor?
A. I don't know, but that was the arrangements made and obviously it did suit him because he came.
Q. You knew that the person that you wanted to fill this vacancy was someone that you would wish to live on the property?
A. That's correct.
Q. And someone who you would want to know something about their experience?
A. I arranged with a man from CES, with Michael Gallagher, and that man was very satisfactory and I applied then for - Darren applied for the job there and I went with - very happy with the first fellow I interviewed and I just had - I was flat out on the day. I said - I met him on the road and I was happy to - he was clean and very respectable and I thought, "The CES has sent him down, they have done all the back part, I will give him the job".
…
Q. And I suggest to you that you said to him words to this effect, … "How much experience have you got on a farm?"
A. No.
Q. Are you denying you said that to him, or are you saying you can't remember.
A. No, I didn't say that to him.
Q. Isn't that something that you would want to know before you employed someone, how much experience they had had on a farm?
A. I relied on the CES to - they recommended him and that was good enough for me.
Q But wouldn't it be of interest for you to know what kind of experience he had had in order to know whether he was going to be suitable to do the task which you wished him to do?
A. I arranged all that with the CES and they knew the type of man I required.
Q. Did you ever speak to anyone at the CES and set out what you say you wanted?
A. My son would have made those arrangements.
Q. Do you know whether you son did?
A. No, I don't
…
Q. Can you tell us the conversation you had with him, using his words and your words, about the property?
A. I said, "Are you interested in the job?". He said, "Yes, I am". I said, "The job is yours then". I said, "The cottage is available for you if you want it" and he said, "Yes, that would be great" and I said, "Right, I am busy at the moment, I have got to keep going". He said, "Well, I will start - I will take the job and move my things down tomorrow", the day after he inspected, and then he started work the day after that."
87 The trial judge said that, on Peter's evidence, the interview
"94 … was little better than perfunctory. According to his evidence, he asked for and saw no references. He asked Mr Winsor nothing about his work history.
…
97 Mr P Monie denied asking Mr Winsor what experience he had had, saying that he relied on CES. They had recommended him and that was enough for him."
88 The trial judge, at [93], said of Peter's evidence on this topic:
"I found Mr P Monie's evidence about the interview unimpressive. He was at pains to give the impression that he had relied at all times on CES to send a person who would be suitable for the job, as though CES were in some way warranting the suitability of persons referred for interview. I think that insofar as he did so, Mr P Monie relied on the evidence he believed Mr S Monie had given or was to give about dictating criteria to Mrs Arca."
89 Sam gave evidence at the retrial, and I would infer also at the first trial, that he had had a conversation with a CES officer, Mrs Anne Arca, at the time of seeking the CES's assistance in finding an employee, and that in that conversation he had listed numerous characteristics that such an employee would need to have. According to Sam, Mrs Arca said she would sort out potential candidates. The trial judge at the retrial was not prepared to accept Sam's evidence on that topic.
90 The trial judge, at [98], summarised Winsor's evidence about what Peter had asked him:
"He asked what experience Mr Winsor had had and where he was living. He asked about references and Mr Winsor gave him some. There was a discussion about living in the cottage on the property. Mr P Monie asked him when he could start."
91 The trial judge did not regard it as important to choose between the two versions of the conversation. In his view, (at [99]), what was relevant about the conversation was common to both versions:
"On either version, Mr P Monie paid no attention to the matter of Mr Winsor's experience or relevant history. He knew from his experience with Mr Bostelaar and Mr Gallagher that CES might have sent him someone who had been out of work for a considerable period of time. Yet he never asked about Mr Winsor's time out of work or what he had been doing during that time."
92 Mr Bostelaar and Mr Gallagher were employees of Thornleigh & Co who had recently come to work there after being referred by the CES, and in connection with whom Thornleigh & Co was paid a Jobstart subsidy. Critical to his Honour's findings concerning contributory negligence was the following:
"102 …I am not satisfied that CES warranted the suitability of Mr Winsor to do the job. I am not satisfied that there was any conversation about "criteria" in the terms contended for by Mr S Monie. I do not think that when he interviewed Mr Winsor Mr P Monie believed that there had been. I do not think that Mr P Monie ever believed that CES had done the work of selection for him.
103 The responsibility to decide whether Mr Winsor was suitable for the job was Mr P Monie's. It was not a function that had been delegated to CES. The whole purpose of the interview was to enable Mr P Monie to find out all he needed to know about Mr Winsor so as to make an informed decision. In my view Mr P Monie failed to ask the questions that any reasonable employer would have asked. If he had done so he would, provided Mr Winsor answered truthfully, have obtained the information he needed to make a proper decision whether to run the risk and employ Mr Winsor in spite of his criminal antecedents.
104 In my opinion Mr P Monie's failure resulted not from any reliance on CES but from the fact that he was in the middle of a job that demanded his close attention. So he took the risk."
93 It had been submitted to the trial judge that no question could reasonably have been asked that would have led to disclosure of his criminal propensity, because any direct question asked of him would probably have elicited a lie. His Honour did not accept that submission. Rather, he found, in substance, that Winsor would probably tell the truth if asked about his criminal record, but would not mention it if not asked. He concluded:
"107 … But however his evidence is viewed, I do not accept that there would be no purpose in asking a job applicant, ex-offender or not, about his work and other relevant history because it should be assumed that he would never reveal anything adverse to his application. To take such an attitude would in my view be an abdication of responsibility.
108 In my opinion Mr P Monie's failure to make reasonable enquiries was negligent. I rate his negligence as half that of CES' negligence and assess responsibility for the existence of the risk on and after the commencement of Mr Winsor's employment on 24 March at two-thirds to CES and one-third to Mr P Monie on behalf of the plaintiffs."
94 The appellants attack, first, the apparent finding by his Honour that any contributory negligence on the part of Peter should be regarded as committed on behalf of Jennifer and Sam. The trial judge accepted that Peter was the only person who had the responsibility to decide whether to employ Winsor, that Peter generally managed the affairs of Thornleigh & Co, and in any event Sam was absent at the time of Winsor's application. In light of that finding, it could be accepted that Peter was acting on behalf of Thornleigh & Co when he employed Winsor. But Thornleigh & Co was a partnership between Peter and the Monie Company - Jennifer and Sam were not partners in it, only shareholders in the Monie Company. There was no evidence that in any other way Jennifer or Sam requested Peter, either expressly or impliedly, to act for them in engaging a station hand. In those circumstances, any contributory negligence on the part of Peter was not engaged in on behalf of either Jennifer or Sam.
95 I have given consideration to whether it could be said that Jennifer and Sam were bound by Peter's act of hiring Winsor, through ratification. While it is true that Jennifer and Sam knew and accepted that Peter had hired Winsor, and lived and worked alongside him in the weeks following his hiring, it is not shown that Peter had any actual authority, at the time of the hiring, to act on their behalf in hiring Winsor. As well, it is not as though Peter was purporting to act on their behalf in hiring Winsor. Any question concerning ratification arises only when A lacked actual authority to act on behalf of B at the time A acted, but later it is alleged that B is bound by (or can take the benefit of) A's action. But before there can be ratification of A's action by B, it is necessary for A to have purported, at the time of acting, to be acting on B's behalf: Keighley, Maxsted & Co v Durant [1901] AC 240; Dal Pont, Law of Agency (2001) para [5.7]-[5.8]. That is not the case here. The action of Jennifer and Sam in living and working alongside Winsor is no more ratification of Peter's action in employing Winsor than is the act of any employee who works alongside a fellow employee who the employer has chosen negligently.
96 The appellants also attack the trial judge's conclusions that (a) Peter engaged in any contributory negligence at all, and (b) that any contributory negligence on Peter's part should be assessed as high as 33⅓%.
97 In considering the trial judge's decision concerning contributory negligence, I bear in mind the reticence that an appellate court should ordinarily exercise before it alters a trial judge's assessment concerning contributory negligence: Manly Council v Byrne [2004] NSWCA 123 at [103]-[105] and cases there cited.
98 In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 at 494, 59 ALR 529 at 532-533, five members of the High Court set out the basic principle:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
99 It can be accepted that Peter's questioning of Winsor was perfunctory. It can also be accepted that Peter did not ask questions that a prospective employer who was acting with reasonable care for his own interests would have asked. Such a prospective employer would have made some enquiries about Winsor's previous experience, and in particular whether he had the skills or experience needed to carry out the particular job that was on offer. It appears from the schedule to the Jobstart individual agreement that the work that Winsor was expected to perform included stock work, welding, fencing, tractor driving, horse riding, repairs and maintenance. While Peter could, and did, observe quite quickly that Winsor had the appearance of being clean and very respectable, that could not have been enough to satisfy him that Winsor had the particular skills that were needed for the job. Those skills were ones that it could not be assumed that any able-bodied young man would have. In engaging Winsor without enquiring into these matters, Peter showed some carelessness for his own interests. However, the interests concerning which he showed carelessness are his economic interests, in that as a result of not enquiring about those matters he might have agreed to employ, and pay, a man who was not well suited to the job. The type of carelessness for a plaintiff's own interests that is involved in contributory negligence is carelessness concerning the type of risk that in fact was a cause of the particular damage that the plaintiff has sustained. In fact, the failure of Peter to question Winsor concerning the particular experience and skills he had is not shown to have been causally connected to the particular type of loss that Peter suffered. There was no evidence of Winsor turning out to lack needed skills, or in any other way to be unsuited to the job, in the period he worked at Thornleigh prior to the shooting.
100 The particular type of injury that Peter suffered was of a most unusual kind, involving Winsor engaging in acts of gratuitous and, on the evidence, totally unprovoked violence of a very serious kind. It is such an unusual type of injury that in my view it is not likely to occur to a prospective employer that someone sent to him to fill a job might have a history of criminal violence that could result in such injuries, unless the prospective employer already had reason to believe that the person sent to him might have a criminal history. In this respect, the particular risk that came home is well removed from the sort of risk concerning which a finding of contributory negligence is frequently made, such as when a pedestrian crosses a road without looking properly, or someone accepts a ride in a motor vehicle driven by a person noticeably affected by alcohol.
101 I do not accept that reasonable questioning by Peter of Winsor is likely to have elicited the information that Winsor had been in gaol. Even though I accept that Peter ought to have been aware that some one sent to him by the CES might have been out of work for a considerable period of time, it does not follow that Peter, taking reasonable care of his own interests, ought to have specifically asked Winsor whether he had been in gaol and, if so, for what. Nor do I accept that a prospective employer, taking reasonable care of his own interests, is likely to have enquired about what Winsor was doing during periods when he was not in employment. While there were certain specific skills that someone who could satisfactorily fill the job would need to have, a reasonable prospective employer is likely to have been interested in whether the applicant had those specific skills, not in what the applicant was doing during the time when he was not exercising those skills. The substance of the trial judge's finding is that if Winsor had been asked a direct question about whether he had been in gaol, he would have answered the question truthfully, but he would not have volunteered the information. I accept that it is within the realm of possibility that a reasonable employer in Peter's position might have asked Winsor what he had been doing immediately before his present job at the Oxford Hotel, because sometimes information about how long an applicant has held down jobs, and what were the circumstances of his leaving a job, could provide an indication of the reliability of the applicant. However, I do not accept that it is likely that a reasonable employer in Peter's position would have asked questions that elicited the fact that Winsor had been in gaol.
102 The culpability element in contributory negligence is concerned with a situation where the conduct of a plaintiff is a cause of the particular damage that the plaintiff has suffered. The culpability element enquires whether the plaintiff's carelessness for his or her own interests means that to some extent the plaintiff can be blamed for the injuries he or she has suffered. In some cases, if the failure of a plaintiff to take reasonable care concerning one type of interest that the plaintiff has is a cause of the plaintiff suffering damages to some different type of interest, the culpability of the plaintiff will not be as high as it would have been if the plaintiff had failed to take reasonable care concerning the very type of interest in relation to which he has suffered loss. However, in circumstances where I am not satisfied that the causal element is made out, it is not necessary to consider culpability any further.
103 I conclude that the Commonwealth has failed to establish that Peter has engaged in any contributory negligence at all.
PART C - DAMAGES