State of Victoria v Richards & Anor [1998] VSCA 103

2. The first respondent (whom I shall call "the plaintiff") contracted leptospirosis in the course of his employment by the second respondent (which I shall call "the Stawell Abattoir") between 22nd February and 30th April 1982. He brought proceedings against a number of defendants, including the appellant (which I shall call "the State") and the Stawell Abattoir, which were the fourth defendant and the first defendant respectively. After a trial occupying 15 days in the County Court at Melbourne the jury returned a verdict for the plaintiff in the sum of $472,714 and, in contribution proceedings between the Stawell Abattoir and the State, apportioned 25 per cent of the responsibility to the abattoir and 75 per cent to the State. On 30th May 1997 judgment was entered for the plaintiff against both those defendants in the sum of $472,714 together with damages in the nature of interest of $112,000 and costs on scale D as between solicitor and client. In the contribution proceedings it was ordered that the State pay the abattoir's costs on scale D as between party and party up to and including 28th May 1997 and thereafter as between solicitor and client.

5. The State appealed from the whole of the judgment for the plaintiff and the orders in the contribution proceedings. Originally there were six grounds of appeal, but grounds 1 and 2 were amended by leave of the Court given on the first day of the hearing of the appeal and grounds 3, 4 and 5 were not pressed. The amended grounds 1 and 2 and ground 6 read:

"1. The trial Judge erred in ruling that the servants or agents of the fourth defendant identified as meat inspectors employed pursuant to the provisions of the Abattoir and Meat Inspection Act 1973 (as amended) owed a duty of care to slaughtermen, and thus the plaintiff, employed at the first defendant's abattoir.

2. The trial Judge erred in ruling that the duty was to warn the slaughtermen of dangers associated with the slaughter and handling of pigs which were or may be infected with leptospirosis and advise as to appropriate precautions that might be taken to minimise risk of infection.

6. The jury erred in fact in finding that it was just and equitable that the fourth defendant should bear 75% of the responsibility for the plaintiff's loss and damage and the first defendant bear 25% responsibility for the plaintiff's loss and damage."

13. The ruling to which reference is made in grounds 1 and 2 was given on the eleventh day of the trial. Senior counsel for the State had submitted that it could not be shown, as the case stood at the conclusion of the evidence, that the relevant officers of the Department of Agriculture owed a duty of care to warn the plaintiff and advise of precautions with regard to the slaughter and handling of pigs infected with leptospirosis. The learned trial judge said that he had, with difficulty, come to the conclusion that those officers did owe such a duty. Reasons were published on 11th June 1997. The way in which the ruling is described in those reasons explains the form taken by grounds 1 and 2 and the distinction therein drawn between the question whether the meat inspectors owed a duty of care to the plaintiff and the characterization of that duty as a duty to warn and advise. His Honour said:

"I ruled that in the circumstances of this case it was my view on the evidence received, and the law, that the servants or agents of the fourth defendant identified as meat inspectors, employed pursuant to the provisions of the Abattoir and Meat Inspection Act 1973 (as amended) ('The Act') owed a duty of care to slaughtermen, and thus the plaintiff, employed at the first defendant's abattoir at the relevant time. That duty was to warn them of dangers associated with the slaughter and handling of pigs which were or may be infected with leptospirosis and advise as to appropriate precautions that might be taken to minimize risk of infection."

17. At the hearing of the appeal Mr. Riordan, who appeared with Mr. Attiwill for the State, sought to argue that the meat inspectors did not owe a relevant duty of care to the plaintiff and, in the alternative, that, even if they did owe such a duty, it was not a duty to warn of dangers associated with the slaughter and handling of pigs which were or might be infected with leptospirosis and to advise as to appropriate precautions that might be taken to minimize the risk of infection but simply a duty to take reasonable care to prevent the plaintiff from sustaining injury during the course of his employment with the Stawell Abattoir. It was submitted that the characterization of the duty collapsed the questions of duty and breach and foreclosed the jury from their proper role in finding whether the duty of care, if any, had been discharged in the circumstances of the case.

20. That is not the way in which the case was argued below. The contention was that there was no relevant duty but, if there was such a duty, it was the duty described by the learned judge, whose description in turn reflected the pleadings. Accordingly we ruled in the course of the hearing that it was not open to the State to rely on ground 2, but the same considerations that prevent the State from arguing that his Honour collapsed the questions of duty and breach, sc. the pleadings and the course of the trial, mean that ground 1 requires us to determine whether the meat inspectors owed the plaintiff the duty to warn and advise identified in the pleadings and described in the ruling, not some other duty.

23. In their outlines of submissions all counsel invited us to determine that question by reference to the three-stage test proposed by Lord Bridge of Harwich in Caparo Industries Plc v. Dickman [1990] UKHL 2; [1990] 2 A.C. 605 at pp.617-618, which was endorsed by Kirby, J. in Pyrenees Shire Council v. Day and Eskimo Amber Pty. Ltd. v. Pyrenees Shire Council [1998] HCA 3; (1998) 72 A.L.J.R. 152 at para. 244 and Romeo v. Conservation Commission of the Northern Territory (1998) 72 A.L.J.R. 208 at para. 117. We intimated to counsel that one or more of us might feel unable, or be unwilling, to take that course, whereupon the invitation was not pressed. Counsel were at one in submitting that there were aspects of the legislation and features of the evidence that would have to be taken into account in any event, whether that was done under the rubric of "proximity" or for the purpose of deciding whether it was "fair, just and reasonable" that the law should impose the relevant duty upon the meat inspectors for the benefit of the plaintiff. For reasons that will become apparent, I think that, except for the contribution proceedings, this is a relatively straightforward case. The fate of ground 1 does not depend on acceptance or rejection of the three-stage test. On any acceptable view of proximity, the plaintiff fails at that hurdle. I should nevertheless briefly outline my own reasons for cautioning counsel at the hearing of the appeal against assuming that the Court would adopt the three-stage test.

26. The determination of a duty of care by reference only to reasonable foreseeability and proximity has been the subject of a great deal of criticism, in which members of the High Court have joined, but we are bound by decisions of the High Court. We cannot depart from binding statements simply because a majority of the present members of the Court might be thought to take a different view. That is true a fortiori when we are asked to take into account opinions expressed in dissenting judgments. It is our duty to wait and see whether, in the course of deciding a subsequent case, the High Court determines that the earlier decisions should be overruled or qualified.

29. The present authorities, as I respectfully understand them, require us to take policy considerations into account as part of the determination of proximity. In other words, they specify a two-stage test. In Gala v. Preston [1991] HCA 18; (1991) 172 C.L.R. 243 at pp.252-253 Mason, C.J., Deane, Gaudron and McHugh, JJ. said:

"Commencing with Jaensch v. Coffey, this Court, in a series of decisions, has accepted that a relevant duty of care will arise under the common law of negligence only in a case where the requirement of a relationship of proximity between the plaintiff and the defendant has been satisfied: see Sutherland Shire Council v. Heyman; Stevens v. Brodribb Sawmilling Co. Pty. Ltd; San Sebastian Pty. Ltd. v. The Minister; Cook v. Cook. The requirement of proximity constitutes the general determinant of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury. In determining whether the requirement is satisfied in a particular category of case in a developing area of the law of negligence, the relevant factors will include policy considerations." (Emphasis added but footnotes omitted.)

Subsequent authorities to the same effect include Burnie Port Authority v. General Jones Pty. Ltd. [1994] HCA 13; (1994) 179 C.L.R. 520 at pp.542-543, Bryan v. Malony (1995) 182 C.L.R. 609 especially at pp.617-618 and Hill v. Van Erp (1997) 188 C.L.R. 159 especially at pp.176-177, 178-179, 189-190 and 235-236. It is possible that the last case relaxes the two-stage test in some cases but not in a case of physical injury allegedly caused by a failure to warn and advise.

34. There is another reason for my reluctance to adopt the three-stage test as at present formulated. It appears to me, with great respect, to pose a dilemma. Either it requires a determination of what is fair, just and reasonable as between a particular plaintiff and a particular defendant on the facts of a particular case or it requires the determination of what is fair, just and reasonable in deciding whether a duty of care should be imposed in a new category of case. If the former is intended, that would seem not to be a criterion for the imposition of a duty of care but a criterion for imposing liability and it would preclude us from adopting the test, because it has often been stressed that proximity (in the broad sense that includes policy) determines the categories of case in which the common law of negligence recognizes the existence of a duty of care. Toohey, J. appears to have understood the three-stage test that way in the Pyrenees Shire Council Cases at para.76, but compare Hill v. Van Erp at p.208 per McHugh, J. and Marc Rich & Co. v.Bishop Rock Ltd. [1995] UKHL 4; [1996] A.C. 211 at pp.241-242 per Lord Steyn, with whom the majority of the House of Lords agreed. If the third stage of the inquiry is also directed to determining the categories of case in which the law imposes a duty of care, the broad question whether it is fair, just and reasonable to do so appears to mandate an inquiry wider than the policy considerations that have hitherto been considered legitimate. Compare the Marc Rich Case at pp.227-229 and 236-242. As Mason, J. pointed out in State Government Insurance Commission v. Trigwell [1979] HCA 40; (1979) 142 C.L.R. 617 at p.633, courts are ill-equipped to discover and evaluate the information that would be necessary to make such a judgment. If the three-stage test does not broaden the scope of the inquiry, it might have the advantage of making the law more transparent, but I do not think it is open to us to adopt it in the present state of the authorities.

37. I turn therefore to ground 1, applying the approach described in the passage set out above from Gala v. Preston. If that is the map to be followed, the compass is to be found in the judgment of Gummow, J. in the Pyrenees Shire Council Cases at para. 126, where his Honour explained that the primary requirement is "analysis of any legislation which is in point and of the positions occupied by the parties on the facts as found at trial". In the present case it is important to remember that those facts must be assessed in the light of the pleadings. Counsel for the respondents made submissions that had the appearance of treating the evidence as free-standing in its own right. It is true that the pleadings are only the skeleton. They take colour and life from the facts, but the duty for which the respondents contend cannot be sustained by reference to facts proved at the trial that were outside the scope of the pleadings as limited by the particulars. Just as free-standing facts will not sustain the duty, so neither will particulars that are not appropriately related to the allegations pleaded. As the ruling quoted in para. 3 above illustrates, the case at trial conformed to the pleadings: cf. Dare v. Pulham [1982] HCA 70; (1982) 148 C.L.R. 658 at p.664 and Water Board v. Moustakas [1988] HCA 12; (1988) 180 C.L.R. 491 at p.497.

40. Paragraphs 2 to 2J of the amended statement of claim read:

"2. The Fourthnamed Defendant is sued pursuant to the provisions of the Crown Proceedings Act 1958.

2A. The Meat Marketing and Inspection Authority ('the Authority') is a statutory authority pursuant to the provisions of the Abattoir and Meat Inspection Act 1973 ('the Act').

2B (i) Pursuant to the provisions of Section 10 of the Act the director of the Authority is obliged to provide inspection service for every meat establishment licensed under the Act.

(ii) The premises of the Firstnamed Defendant comprised such an establishment.

2C. Pursuant to the provisions of Sections 11 and 13 of the Act the Authority was invested with powers in relation to the examination and inspection of meat at inter alia the premises including :

(i) providing trained personnel ('meat inspectors') to examine and inspect,

(ii) examining and inspecting meat being killed at abattoirs within Victoria.

2D. Meat inspectors examining and inspecting such meats at all times material were servants or agents of the Fourthnamed Defendant and were acting in the course of their employment.

2E. Such meat inspectors were required or alternatively obliged to carry out such examinations and inspections in accordance with Part 5 of the Abattoir and Meat Inspection Regulations 1974.

2F. At all times material it was known to the Authority and to the meat inspectors on duty at the premises of the Firstnamed Defendant that for some months prior to May, 1982 pigs infected with leptospirosis pomona were being slaughtered at such premises.

2G. At all times material it was known to the Authority and to the said meat inspectors that the slaughtering of pigs so infected carried with it a risk of infection to any slaughterman involved unless appropriate precautions were taken.

2H. As a consequence of the matters aforesaid the Authority and the said meat inspectors owed a duty of care to warn slaughtermen at the said premises:

(i) that there was a foreseeable risk they would be likely to be required to slaughter infected pigs;

(ii) that in so doing they ran a risk of themselves being infected;

(iii) that they should wear protective clothing including protective gloves when slaughtering such pigs so as to avoid or minimise the risk of infection;

(iv) that preventative procedures should be adopted in the slaughter of such pigs so that the slaughterman would not be exposed to the risk of infection.

2J. The Fourthnamed Defendant is liable for the negligence of breach of a duty of care owed by the Authority and the meat inspectors to the Plaintiff. " (Emphasis added.)

The pleader then referred to the plaintiff's employment at the Stawell Abattoir, his being required to slaughter pigs infected with leptospirosis and his contracting the disease. After allegations of negligence against the abattoir and a defendant who is no longer relevant, paragraphs 10 and 10A alleged negligence on the part of another defendant whose conduct is no longer in issue (the Chief General Manager of the Department of Health) and the State. Those paragraphs read:

"10. Further to paragraphs 8 and 9 hereof or in the alternative, the Plaintiff's injuries were caused by the negligence of the Thirdnamed Defendant and Fourthnamed Defendant or one or other of them.

(a) Failing to prevent the sale and delivery of the said pigs to the said abattoir for slaughter;

(b) Failing to quarantine the Secondnamed Defendant's piggery;

(c) Failing to advise safety precautions for the slaughter of leptospirosis infected pigs;

(d) Failing to ensure that safety precautions were implemented and/or implemented fully for the slaughter of leptospirosis infected pigs;

(e) Failing to warn of the risks associated with the slaughter of leptospirosis infected pigs;

(f) Failing to prevent the slaughter of leptospirosis infected pigs;

(g) Failing to ensure that the Secondnamed Defendant's piggery was safe, clean, properly conducted and not a danger to health and safety.

10A. Further and in the alternative, the Fourthnamed Defendant by the Authority or its servants and agents the said meat inspectors was negligent or in breach of its duty of care to the Plaintiff as a consequence of which he became infected with leptospirosis and has suffered illness damage and loss.

(a) The particulars set forth under paragraph 10 hereof;

(b) Failing to warn inter alia the Plaintiff that pigs being slaughtered at the said premises were known to be infected with leptospirosis;

(c) Failing to warn inter alia the Plaintiff that in the absence of his taking preventative measures when slaughtering such pigs he was at risk of becoming infected himself;

(d) Failing to require the Firstnamed Defendants to ensure that inter alia the Plaintiff was provided with proper and adequate protective clothing, including protective gloves;

(e) Failing to advise inter alia the Plaintiff that there were well known and recognised procedures that should be adopted when slaughtering such pigs so as to avoid or minimise the risk of infection;

(g) Failing to require the Firstnamed Defendants to adopt well known and recognised procedures when slaughtering such pigs so as to avoid or minimise the risk of infection to slaughterman."

The plaintiff's case depended on his establishing the duty of care pleaded in paragraph 2H of the amended statement of claim. That had to be done before paragraphs 10, and more importantly 10A, came into play.

76. The purpose of the Abattoir and Meat Inspection Act 1973 ("the Act"), as explained in the Minister's second reading speech, was to provide for the transfer of control of abattoirs and meat inspection to the Department of Agriculture. Such control was formerly exercised by the Department of Health and municipalities under the provisions of the Health Act 1958. The Act was amended from time to time prior to the period during which the plaintiff contracted leptospirosis. It was common ground that we should have regard to the Act in the form in which it then stood, disregarding subsequent amendments and its repeal in 1993. It was also common ground that at least the principal purpose of the powers conferred and duties imposed by the Act was the protection of consumers. Mr. Riordan contended that that was the only purpose but conceded that there might be incidental purposes irrelevant to the plaintiff's claim. Counsel for the respondents contended that there were other relevant purposes, including the protection of personnel working at abattoirs. In my opinion Mr. Riordan's submission is correct. Subject to minor exceptions, the Act was entirely concerned with the protection of consumers. See, for example, the definitions of "disease", "edible", "edible offal", "meat premises" and "meat product" in s.2 and ss.3(5), 9(1), 10, 11(5), 13, 17, 18, 19, 40, 46 and 48. Knackeries and pet food establishments were also regulated. Section 44 was concerned with the health of persons living near an abattoir or similar premises and questions of amenity. Section 48(k) and (l)(ii) authorized regulations designed to prevent cruelty.

79. It is true that many of the provisions of the Act, including some of those to which I have specifically referred, conferred powers or imposed duties that might readily have been adapted to the protection of abattoir workers, but the context in which they appeared showed that that was not the end in view. Mr. Boyes, Q.C, who appeared with Mr. White for the plaintiff, referred, for example, to s.16(1), which provided:

"16. (1) The manager of a meat establishment shall at all times keep an inspector informed of all details regarding the actual operation of the meat establishment relating to the production of meat and meat products and no such operation shall be carried on without the knowledge and supervision of an inspector."

That sub-section is relevant to the question of knowledge and control but is entirely neutral as to the purpose of requiring the manager of a meat establishment to keep an inspector informed and to operate under supervision.

84. Similarly s.48(d), which authorized regulations for or with respect to the provision of changing rooms, shower rooms and sanitary facilities not only for the use of inspectors but also for the use of personnel working at meat establishments, was just as likely to be directed to the cleanliness of the meat as the health of the relevant personnel. At best it was an incidental provision extending to slaughtermen. To found a duty of care on s.48(d) would be a striking example of letting the tail wag the dog. There is no other unequivocal reference in the Act to the welfare of abattoir workers except s.48(zi), which was concerned with reasonable hours of work and was directed mainly to the convenience of inspectors. Regulation 24 referred to protective clothing, but the duty it imposed, on employers, was primarily, if not wholly, directed to the protection of meat and meat products. Even if it did extend incidentally to the protection of workers, it did not sustain the duty to warn and advise on which the plaintiff's case depends and the powers it gave to an inspector, about which Mr. Blake was cross-examined, were not conferred to protect slaughtermen. The regulations were not made until October 1974 and cannot, in any event, be used to divine the purpose of the Act.

87. Mr. Boyes submitted that his client's position was indistinguishable from that of Eskimo Amber Pty. Ltd. in the second of the Pyrenees Shire Council Cases and both he and Mr. Riordan made extensive reference to the judgments in that case. Mr. Boyes particularly emphasized what Gummow, J. described at para. 168 as "the touchstone" of the Shire's duty of care, namely its measure of control of the situation including its knowledge. See also Hill v. Van Erp at pp.198-199 per Gaudron, J. Counsel also referred to the seriousness of the illness sustained by the plaintiff and the passages in the judgments in the Pyrenees Shire Council Cases referring to the gravity of the risk. In my view, the analogy is imperfect because the plaintiff was an employee. His employer, the Stawell Abattoir, also had a measure of control and, as we shall see when we turn to the facts, Mr. Max Holmes, the principal of the abattoir, had himself contracted the disease. (There is, however, no correspondence from the Department advising him of the precautions that employees should take, and I accept that the Department, even if limited to the meat inspectors, was much more knowledgeable than Mr. Holmes or the plaintiff.) But, more fundamentally, the Shire failed to exercise powers conferred for the purpose of preventing fire; in the present case the relevant powers were conferred for the purpose of preventing diseased or unhygienic meat from being sold to the public. Compare Stevedoring Industry Finance Committee v. Crimmins (unreported, Court of Appeal, 31st July 1998) in the judgments of Winneke, P. at pp.30 and 38 and Buchanan, J.A. at pp.14-15 and 21-22.

90. The legislation being understood in that way, paragraphs 2 to 2G of the amended statement of claim, even if proved to the hilt, would not warrant a conclusion that the meat inspectors owed the plaintiff a duty to warn him of dangers associated with the slaughter and handling of pigs which were or might be infected with leptospirosis and to advise him as to appropriate precautions that might be taken to minimise the risk of infection. Neither the Authority nor the meat inspectors fell into a category of persons on whom, or found themselves in the kind of circumstances in which, the common law imposes a duty to warn and advise about occupational health hazards. I shall nevertheless say something about the evidence, partly out of respect for the arguments advanced by counsel for the respondents and partly to explain an alternative way in which they sought to sustain the plaintiff's case.

93. Leptospirosis is a zoonotic disease, which means that it can be transmitted from animals to human beings. The risk is widespread, but a pig can be infected and show no outward signs of the disease. The Meat Inspection Branch or Service of the Department of Agriculture was aware of the existence of leptospirosis and other zoonotic diseases such as Q fever and brucellosis. In June 1981 it produced a public information bulletin in four languages, called an "Agnote", which referred to the risks and the precautions to be taken, a document that was much relied on by the respondents at trial and before us, for it contained a statement that "[t]he existing legislation" was "designed not only to produce a disease-free and wholesome product, but also to protect the health of abattoir workers" and contained guidelines to be observed by slaughtermen and others. The guidelines dealt with regular washing of hands, arms, faces and equipment, treatment of cuts and abrasions and the wearing of protective clothing.

96. In the same month that the Agnote was produced leptospirosis was diagnosed in pigs being supplied by Anyon's Piggery to the Stawell Abattoir. On 26th August 1981 Dr. Tweddle, the regional veterinary officer for the south-west region, wrote to Dr. Nurse, the district veterinary officer in Horsham, saying that leptospirosis in Anyon's pigs was obviously a public health risk to abattoir workers and that steps needed to be taken to control the disease on the property. A few days later Mr. Blake, the senior meat inspector at the Stawell Abattoir, sent a further sample of infected material for examination under cover of a note which included the question, "When is the Dept. going to act?" At about the same time restrictions were imposed on the movement of pigs to and from Anyon's Piggery and a vaccination programme was put into effect until November. That was not done by the Meat Inspection Branch but by inspectors of stock appointed under the Stock Diseases Act 1968.

99. In March 1982 Mr. Mackie, Mr. Blake's immediate superior, asked that action be taken by the Veterinary Field Service, i.e. under the Stock Diseases Act. The ensuing correspondence within the Department canvassed the possibilities of a quarantine order or of using s.20 of the Abattoir and Meat Inspection Act to exclude Anyon's pigs from abattoirs. (Section 20 prohibited acceptance of a diseased animal at an abattoir unless it was accompanied by a certificate from an inspector of stock and the meat inspector in charge permitted its reception. There was evidence that the section had never been used in that way, but in any event it is neutral for the same reason s.16(1) is neutral.) Depopulation was also considered but, in the end, none of those measures was adopted. Professor Faine, a world authority on the disease, gave evidence that in his opinion the supply of diseased pigs to abattoirs should have been stopped.

102. Dr. Tweddle agreed in cross-examination that, if leptospirosis was found on a pig farm, that did not in itself prevent the meat from being consumed by the public, presumably because reg. 62 required the whole carcass to be condemned only in the case of acute or generalized leptospirosis. All that was required was that the kidneys and the infected part of the animal should first be removed. That passage of cross-examination continued:

"Your concern therefore was not in the case of Mr Anyon to the public in relation to handling this meat; your concern would have been to the meatworkers who possibly could have got leptospirosis through handling this diseased meat. Is that correct?---I'm not quite sure what you're saying. I mean, pigs are likely to have leptospirosis when they go into slaughter from many farms in Victoria. It's a risk of slaughtering pigs.

You have a concern for the safety of the meatworkers handling those pigs, don't you, in the department?---In the department, yes. When we were aware of it we would, as I did, try and take action to minimise that risk.

Therefore you did have a concern for the meatworkers with meat infected by leptospirosis rather than the people who were going to eat it. That's the situation, isn't it?---We would see that they would have a higher risk of being exposed to the disease, that's right.

There would be no risk for the public, would there, if it was handled properly?---No.

So the only risk of disease are the people working with the meat either on the farm or at the abattoir?---Well, anyone working with the animals, yes.

113. Mr. Holmes contracted leptospirosis in late 1981 some months before the time at which the plaintiff, who had previously worked at the Stawell Abattoir, resumed work. The plaintiff's evidence was that, although he was aware of the disease, he did not know how it was transmitted or the precautions that should be taken to avoid contracting it. Mr. Blake, who worked closely with the slaughtermen, gave evidence that he warned them and advised them of the appropriate precautions. When infected pigs continued to be received at the abattoir, Mr. Mackie told him to reinforce what he had said to the people working there. He agreed in cross-examination both that he knew that they were at risk and that he knew what advice ought to be given to minimize that risk, but he said that he believed he had only a moral, not a legal, obligation to warn the slaughtermen. The plaintiff said that he did have some discussions with Mr. Blake about leptospirosis and was told that he should wash himself if he were splashed with any considerable amount of urine. That was the most that he could recollect and he did not understand it as a health warning. None of the fellow workers who were called remembered, and three of them denied, that any warnings about leptospirosis had been given to them by Mr. Blake.

116. The foregoing account shows that officers of the Department of Agriculture were well aware of the danger to persons such as the plaintiff and that they were in a position to give appropriate advice but, so far as the meat inspectors were concerned, that simply makes them so many potential good samaritans. It does not establish a relevant duty of care. Such powers of control as they had under the Act were not conferred for the purpose of protecting abattoir workers. The position may have been different in the case of officers of the Veterinary Field Service but the plaintiff's case was against the meat inspectors. This is a distinction to which I shall return in connexion with the contribution proceedings. Counsel for the respondents argued in the alternative that, even if officers of the Meat Inspection Branch could have refrained from acting, they did not do so. They embarked on a programme of protecting workers' health, beginning with the production of the Agnote, and carried it out negligently. (In final addresses senior counsel for the plaintiff invited the jury to disbelieve Mr. Blake when he said he had not seen the Agnote, but Mr. Elliott, who appeared for the Stawell Abattoir, accepted that evidence and said it was another example of failure to warn and advise.) I doubt that the alternative is borne out by the evidence but in any event it was not pleaded. There is a reference in Mr. Elliott's submissions to "positive action [falling] short of what should have been done", but the plaintiff's case was one of negligent failure, not negligent performance of action voluntarily undertaken.

119. I would therefore uphold ground 1, with the result that the plaintiff should have succeeded only against his employer, the Stawell Abattoir. Mr. Riordan submitted that it also followed that the State should have succeeded against both respondents. Mr. Elliott contended that that was not so, for the claim for contribution made by his client against the State was framed more widely than the plaintiff's claim. In addition to the duty of care pleaded in the amended statement of claim, the notice claiming contribution asserted that the servants and agents of the State had been negligent in carrying out their duties under the Stock Diseases Act. (Section 12 of that Act extended to meat inspectors, but the persons primarily referred to are veterinary officers in the sense explained below.) Counsel for the plaintiff supported Mr. Elliott's contention. As it was apparent that there were different understandings of what had transpired at the trial, the Court directed that written submissions be filed. In the discussion of those submissions that follows I accept entirely the bona fides of both sides. The question is not what was subjectively believed or intended but what was objectively to be understood.

122. In the written submissions filed on behalf of the State it was conceded that contribution could have been claimed on a basis wider than the claim asserted by the plaintiff but it was said that, at the trial, the Stawell Abattoir had contended that the conduct of veterinary officers, as opposed to meat inspectors, was relevant for the purpose of assessing the "just and equitable" apportionment of responsibility between the defendants, pursuant to s.24(2) of the Wrongs Act 1958, only if both defendants were found negligent on the plaintiff's claim. (I shall adopt the distinction between veterinary officers and meat inspectors, but exhibit D.1.2 shows that meat inspectors were veterinary officers too. The relevant officers are stock inspectors and their superiors, including Dr. Tweddle and Dr. Nurse.) Counsel referred to four matters as showing that the trial had been conducted on that basis.

125. First of all, there were the questions put to the jury, which were:

1. Was there negligence on the part of the first-named defendant, its servants or agents which was a cause of the plaintiff's injuries?

2. Was there negligence on the part of the fourth-named defendant, its servants or agents which was a cause of the plaintiff's injuries?

3. If yes to question 1 and/or 2, in what sum do you assess the plaintiff's loss and damage?

4. If yes to questions 1 and 2, then in what proportion is it just and equitable that the defendants should bear responsibility for the plaintiff's loss and damage?

The questions were formulated by the judge and assented to by counsel.

133. The second matter on which counsel for the State relied in their written submissions was the following passage in his Honour's charge:

"I want now to say something with regard to the circumstances between the defendants which is involved in question number 4. As you will recollect, a matter of which you have been addressed at some length certainly by Mr Elliott, the defendants say if the jury were to find us each negligent in that there has been a departure from the standard of care appropriate to each of us then there has to be an apportionment, as it were, of the responsibility and that is what the question contemplates.

How do you assess that contribution, if you like, bearing in mind, of course, that in order to get to that question you must answer questions 1 and 2 in the affirmative. It is self evident, I think, from the questions, but if the answer yes relates only to one of the two defendants then you do not need to go on and go to question 4." (Counsel's emphasis)

The judge explained to the jury the duty of care said to be owed by the meat inspectors but there was no direct reference to a duty of care owed by veterinary officers or indeed anyone else in the department other than the meat inspectors.

139. The third matter relied on consisted of the following passages in Mr. Elliott's address to the jury:

"But if you find that both defendants have been negligent in these circumstances then how do you go about question number 4. That's the one about contribution ..."

"So to come back to the question and to simply state the way that the first defendant says it, your answer to question 1 will be, 'No'. If you're against me on that, your answer to question 3 will be far less than the very large amount of money that's been put to [you] by the plaintiff. Your answer to question 4, if you come to it, is that a very, very large percentage of responsibility should be put upon the State of Victoria in relation to these damages." (Counsel's emphasis.)

144. The fourth matter was an inference that we were invited to draw from an application made on behalf of the plaintiff on the eleventh day of the trial. Leave was sought further to amend the statement of claim to plead a breach of duty by veterinary officers. At that stage each party had closed its case and there had been a full day of submissions by senior counsel for the State. The judge accepted that many of the amendments that were proposed were "really uncontroversial in nature and ... covered by the evidence", but leave was refused because the State had conducted its case on the basis of the amended statement of claim. If the proposed amendments raised the same issues as the Stawell Abattoir's claim for contribution, it was difficult to understand, counsel submitted, why his Honour would have considered that they prejudiced the State. It would always have had to meet such a case as part of its defence to the claim for contribution.

147. In their written submissions counsel for the Stawell Abattoir submitted that it had been common ground at the trial that veterinary officers did owe a duty of care for which the State would be vicariously liable; that it had not been argued that, before the jury could examine breaches of a duty of care based on the Stock Diseases Act, they had first to find a breach of a duty based on the Abattoir and Meat Inspection Act; that question 2 covered the possibility of a breach of duty on the part of the State vis-à-vis the plaintiff on which the plaintiff could not rely but on which the Stawell Abattoir could rely as part of its claim for contribution; and that the appeal did not involve any question of the duty of care owed by veterinary officers under or by virtue of the Stock Diseases Act and the regulations thereunder. The last submission was responsive to the State's contention that, if its primary submission were rejected, this Court should decide whether there was such a duty of care and, if it held that there was, the matter should be remitted to the County Court for a further trial of the contribution proceedings. In their written submissions counsel for the plaintiff referred the Court to other extracts from the transcript.

150. In the fourth paragraph of the charge his Honour told the jury that the State was sued "as the employer of the meat inspection staff who are required to be at the abattoirs for the purpose of inspecting the meat slaughtered and despatched from that abattoirs". Four paragraphs later his Honour explained that the plaintiff's claim was that "the employees of the State of Victoria, and more accurately stated, the meat inspectors responsible for the inspection of animals before and after slaughter, owed him a duty of care". True it is that that is referring to the plaintiff's claim, but there was no suggestion that there might be a wider allegation of negligence with which the State had to contend until the judge came to counsel's addresses. Summing up Mr. Elliott's address, his Honour reminded the jury that reliance had been placed on the Stock Diseases Act as well as the Abattoir and Meat Inspection Act. Counsel had said that steps could and should have been taken to quarantine, isolate and destroy Anyon's pigs with a view to protecting, among others, abattoir workers.

153. I have not found this an easy dispute to resolve. Although the form of the questions would not have focused the jury's minds on the difference between the plaintiff's narrower, and the Stawell Abattoir's wider, allegations of negligence, the questions themselves are neutral as between the rival contentions. On either view it would be necessary to find that both defendants had been negligent before proceeding to question 4. (There is, however, the point mentioned in para. 35 below.) The same comment applies to the second and third matters relied on. The State's submissions assume that one should understand "negligent" as meaning "liable to the plaintiff having regard to his pleaded case". The fourth matter, the inference to be drawn from the unsuccessful application for amendment, is a shaky foundation on which to allow a party's case to stand or fall. The relevant argument may not have occurred to counsel for the plaintiff in the heat of battle and it is readily understandable that the judge would have been against another amendment at the eleventh hour in relation to a fairly ancient claim.

156. The rulings to which I have previously referred were not the only rulings given on the eleventh day at the trial. The judge was also asked by Mr. Elliott to rule with regard to what might be said by him in his final address concerning the claim for contribution. (Senior counsel for the State argued that he should be restricted to the basis on which the plaintiff had put his claim.) His Honour said that the notice claiming contribution revealed "that what was being claimed as far back as 1989 by [sic] the fourth-named defendant was a contribution and/or indemnity based upon grounds that were outside that which had then been pleaded by the plaintiff". He ruled that Mr. Elliott could address within the wider scope of the notice to the extent that the latter was supported by the evidence that had emerged at the trial. As the passage from Dr. Tweddle's evidence set out earlier in this judgment illustrates, much of the cross-examination had been directed to laying just such a foundation.

159. Mr. Elliott did address on the wider basis, although I think it is fair to say that more emphasis was laid on the role of the meat inspectors than of the veterinary officers. He referred, for example, to "negligence on [the part] of the Department and in particular the meat inspectors" and concluded the relevant part of his address with a discussion of the Agnote. It was not suggested that question 2 had to be considered first in relation to the meat inspectors and then in relation to the veterinary officers. Counsel also took exception to that part of the charge in which his Honour dealt with contribution. The gist of the submission was that the ruling had not been carried forward into the charge and the jury should have been told expressly that the Stawell Abattoir could rely, as against the State, on a failure to quarantine Anyon's pigs or destroy them. His Honour was satisfied that he had explained to the jury that the claim for contribution was in a different category from the plaintiff's claim and was not confined to the meat inspectors. He considered that counsel's address would have made it clear that the claim for contribution relied on what the Department as a whole had failed to do and declined to re-direct.

162. In their written submissions in reply counsel for the State vigorously contested the proposition that question 2 was wide enough to encompass a breach of a duty of care by veterinary officers. They referred to a portion of the transcript at which the questions for the jury were being discussed. His Honour assumed that question 2 would be required only if he ruled that the meat inspectors owed a duty of care to the plaintiff. Counsel also referred to further passages in the charge. I think it is best to set out a longer extract than those on which counsel relied, identifying when we come to it a portion that has already been quoted:

"I turn now to the duty of care owed by the fourth-named defendant. What I have said previously about the objectivity with which the duty of care and what is performed under it should be applied, applies also in respect of the fourth-named defendant. The fourth-named defendant is the State of Victoria or more accurately as I said in the circumstances, the meat inspectors, were under a duty of care or a duty to exercise reasonable care for the safety of the plaintiff in respect to the slaughter and handling of pigs that were or might have been infected with leptospirosis.

That duty of care was to warn the plaintiff that there was a reasonably foreseeable risk that the pigs infected with leptospirosis would be required to be slaughtered; that there was a reasonable risk of infection through contact with the urine of infected pigs, and that the plaintiff should take reasonable precautions to avoid such contact or expunge it, get rid of that contact as soon as was possible.

Foreseeable in this context means that it might happen or might possibly happen. The standard of care required was that which you find objectively to be what a reasonable prudent meat inspector would have done in the circumstances of that abattoir at that time. I do not need to repeat to you that the State of Victoria is responsible for its employees and in this instance we are dealing with the meat inspectors just as Mr Holmes is responsible for his employees and his foreman."

There followed the passage set out in para. 26 above, after which his Honour continued:

"In the event that you do, the answer to the question requires a comparison of the blameworthiness of the defendants. When I use that expression 'blameworthiness', I do not mean that in a sense of moral blameworthiness or anything like that. What you are required to do is to make a comparison of the degrees of departure from the standard of care, of the reasonable employer on the one hand, and the standard of care of the reasonable person in the circumstances of the meat inspectors, or Mr Blake, on the other.

If you have found that both defendants departed from the standard of care appropriate to them and to be expected of them, you make a comparison of how far both did depart from that standard of care, that is of the reasonable employer and of the reasonable meat inspector respectively, and how far those respective departures were a cause of the happening of the accident of the development of the injury. In accordance with that comparison you apportion the respective defendant's responsibility." (My emphasis .)

171. In my opinion, notwithstanding the exception, that part of the charge tells against the Stawell Abattoir. The only duty of care that the jury were invited to consider as such was a duty of care on the part of meat inspectors and not veterinary officers and the duty itself was that on which the plaintiff himself relied, namely a duty to warn and advise of precautions, not a duty to impose quarantine restrictions or engage in measures such as depopulation. The judge's ruling in favour of Mr. Elliott meant no more than that reference could be made to the wider claim for the purpose of apportioning responsibility if the plaintiff succeeded against both defendants. It is true that the legal basis for that argument is unclear in the absence of a concession by the State that veterinary officers owed the plaintiff the wider duty of care, which was pleaded simply as an allegation of "negligence" with particulars of breach, asserted in the notice claiming contribution, but no such concession was made and it is not implied by the course of the trial. Accordingly this was not a case of a question that did arise from the course of the trial not being left to the jury: compare Rule 64.23(2) and Vlahos v. Easywear (Aust) Pty. Ltd. [1974] VicRp 20; [1974] V.R. 155. The charge is consistent with the view of the ruling to which I have referred, for otherwise, in the course of explaining question 2, his Honour would have instructed the jury concerning the wider duty of care on which the Stawell Abattoir relied.

174. Furthermore, question 2 would have had to be split into two parts, if Mr. Elliott's contention is correct, in order to know how to express the judgment of the court. If the only negligence on the part of the servants or agents of the State had been negligence on the part of veterinary officers, there would have been judgment for the plaintiff only against the Stawell Abattoir notwithstanding the latter's entitlement to contribution from the State. It may be added that the form of the judgment actually given, described in para. 1 above, presupposes that the jury did find negligence on the part of the meat inspectors whatever they may have thought about the wider way in which the claim for contribution was framed.

177. For these reasons I would allow the appeal, set aside the judgment below against the State and order that the Stawell Abbattoir's claim for contribution be dismissed.

183. Having closely considered in draft the reasons for judgment of Callaway, J.A., I agree in his Honour's conclusions and in the reasons which he assigns for them. I need only add the following. Because of the importance of the course of proceedings at trial to the outcome of this appeal, I have, amongst other things, read and re-read more than once the exception to the charge taken on behalf of the Stawell Abattoir and the response of the trial judge to the exception. They do not, to my mind, suggest that either counsel or the judge understood that Question 4 was to arise for the jury's consideration if the jury did not find negligence on the part of meat inspectors. I do consider that in the italicised passages in the last two paragraphs from the charge set out in para.34 of Callaway, J.A.'s reasons the trial judge should, consistently with his ruling in favour of counsel for the Stawell Abattoir, have included references to stock inspectors; but that is of no consequence in the light of Callaway, J.A.'s conclusions, in which, as I have said, I concur.

188. I agree that the appeal should be allowed for the reasons stated by Callaway, J.A.