TIPPETT & ORS v FRASER & ORS No. SCGRG-97-418 Judgment No. S267 [1999] SASC 267

Supreme Court of SA|1999-07-07|Before: Mr J, Ms P, Wicks J

1 The first plaintiff, Mr C J Tippett, was born on 6 July 1940. He was the owner (as tenant in common) and manager of a cattle livestock property at Blackford via Kingston in the south-east of South Australia ("the Blackford property"). He was also the manager of Daylite Industries Pty Ltd which is the third plaintiff in this action ("Daylite Industries").

2 The plaintiff, Mrs G F Tippett, was born on 5 September 1941. She was the owner (as tenant in common) with Mr Tippett of the cattle property. She was also employed by Daylite Industries and is a director of that company.

3 Mr and Mrs Tippett conducted the business of raising and selling livestock for profit from the Blackford property under the style or business name of C & G Tippett.

4 The plaintiff, Daylite Industries, was incorporated in South Australia and had its registered office and factory situated at Gates Road, Hackham. It carried on business at Hackham as a designer, constructor and installer of fabricated plastic fume cupboards and anti-corrosive exhaust fans. The company leased the factory premises from Mr Tippett who was the registered proprietor of the land upon which the factory stood.

5 The first defendants, Mr J Malcolm Fraser, Ms P A Fraser, Mr John M Fraser and Mrs T M S Fraser, carried on business as the proprietors of a stud cattle and farming business under the business name "Nareen Pastoral Co" on a property known as Nareen owned by the second defendant, Fraser Properties Pty Ltd ("Fraser Properties").

6 Nareen Pastoral Co. owned and conducted a purebred merino and cattle stud. It commenced as a cattle stud in 1972 and dealt principally with Hereford and Simmental breeds.

7 From the mid-1970s it was the practice of Nareen Pastoral Co. to hold an annual bull sale on the property. Initially, the weening yards were used for that purpose. A small number of animals would be placed in each yard and the auctioneer and clients would move from yard to yard selling each animal under the fall of the hammer.

8 In 1982 a sale ring was erected adjacent to the weening yards to enable bull sales to be conducted in a more professional manner. The sale ring was constructed on the instructions of Mr Malcolm Fraser, one of the defendants. These instructions were conveyed to Mr Ronald Birch who was the Manager of the defendants' business at Nareen. In turn, Mr Birch instructed Mr Bruce Gray to carry out the necessary work. Mr Gray was employed at Nareen as a mechanic. It was his job to look after the machinery and carry out the necessary repairs to gates and yards and other facilities. When giving evidence, neither Mr Birch nor Mr Gray was aware of the existence of plans on which the sale ring might have been constructed.

9 The sale ring was an octagonal structure. There were vertical pipes cemented into the ground and between these there were horizontal rails, originally six in number, extending around the circumference of the ring. As originally constructed, the rails were one foot or so apart with the bottom rail being from 6" to 9", or so, above the ground, making a total height of 5'6" to 5'9". The ground inside the ring consisted of what appeared to be finely crushed road metal built up so that it was slightly higher in the centre.

10 Adjacent to the northern, western and southern sides of the ring were stands which enabled clients attending a sale to be seated with a good view of the ring. The stands accommodated clients on about five levels.

11 On the eastern side of the ring, provision was made for the auctioneer and his assistants to have a commanding view of the ring while standing, with provision also for catalogues and other papers to be conveniently held.

12 When the sale ring was originally constructed in 1982, provision was made for a small holding paddock measuring approximately 8' x 10' on the north-eastern side of the ring. The paddock was such that it could accommodate a small number of bulls awaiting entry into the ring. Over time, the holding paddock was found to be unsatisfactory in that it was not always easy to single out a particular bull from the group in the paddock.

13 At the time the sale ring was constructed and shortly afterwards, Mr Malcolm Fraser was away from Nareen attending to his Parliamentary duties and his duties as Prime Minister. On his return home, Mr Birch took him for a tour of inspection of the property. He was shown the sale ring as it was originally built. According to Mr Birch, Mr Fraser said: "It's too high; cut the top off it", or words to that effect. In evidence when asked whether Mr Fraser said why, Mr Birch replied: "Yes, he said it'd make the bulls look too small".

14 Mr Fraser was asked about this matter. He said that he was away when the ring was being built. He came back and saw it as it was originally constructed. He said that it was out of kilter with other sale rings that he had seen in the district and instructed Mr Birch to take a foot off the top. Mr Malcolm Fraser denied that he had said anything about making the bulls look too small because, he said: "... that is not the reason I wanted the rail reduced". The reason, he maintained, was to have a sale ring which was similar in design and size to other sale rings in the district. In the light of my decision on the question of negligence, it is not necessary for me to form a view one way or the other on which version of this conversation is correct.

15 In or about 1983, Mr Birch cut off the top rail and one foot or so of the vertical pipes, thus reducing the overall height of the sale ring by one foot. After this was done, the overall height of the sale ring was from 4'6" to 4'9" (with the exception of the area normally occupied by the auctioneer).

16 In 1993 the holding paddock was discarded and a race substituted. The race was such that two animals could be held in it at one time and one behind the other. It was narrow so that an animal, once introduced into it, had no choice but to proceed forward. It was not able to turn around. While one bull was awaiting introduction into the ring, another animal could be introduced into the race, allowed to proceed some little distance and held by a sliding gate about half-way along. The annual sale of bulls in March 1994 was the first occasion in which the race was used in lieu of the holding paddock.

17 Mr Craig Porter gave evidence. He was a contract stockman. All his working life he had been engaged in the handling of cattle. He was asked about numbers of cattle and replied that he had been engaged in the handling of thousands of beasts over the years. For eight years he had his own cattle stud. At the time of giving evidence, he said that he was handling a large herd of 2000 or so Friesan bulls.

18 Mr Porter said that he studied the behaviour of bulls. In his work he needed to be able to anticipate what particular animals are likely to do before they do it. He said that if cattle are upset enough they will jump out of a sale ring. They are anxious to join the company of other bulls. He said that any difficulty in this regard could be overcome by erecting a visual barrier such as a hessian screen so that bulls in the sale ring could not see other animals paddocked nearby.

19 Mr Porter also said that noises annoyed cattle unless they were used to them. On the day of the sale at Nareen, the auctioneer used a public address system. Mr Porter thought that noise made by the loud speakers would annoy the bulls as they were not used to it. Once they became used to a noise, it would not worry them.

20 Mr Porter also said that the stands on three sides of the ring were full. He thought they accommodated from 80 to 100 persons.

22 Mr W J Vowles also gave evidence. He was an agricultural consultant with considerable experience in the management of cattle and in the design and use of handling systems with particular emphasis on the safety of the handler. He considered that the minimum height for holding pens and selling rings for cattle was 1.65 metres. The Nareen ring, after its height was reduced, was from 1.37 to 1.44 metres in height. Mr Vowles thought the reduced height was inadequate to contain cattle. He considered that cattle found the sale ring to be stressful and that it was reasonable, if the opportunity should present itself, for a beast to jump out of the sale ring and join its kind in the holding paddocks behind the stands if it could see them from the sale ring. He thought it important for a visual barrier to be erected so that a bull in the holding ring could not see animals in the holding paddocks nearby. He also said that the Simmintal breed generally had a larger frame than the English breeds and that it would, therefore, find it easier to escape from the sale ring. I accept the evidence of Mr Vowles on these matters.

23 Mr Malcolm Fraser arranged for the annual sale of bulls at Nareen to be advertised in various newspapers and journals in early 1994. Approximately one week before the advertised date Mr Fraser rang Mr Tippett at Blackford and extended an invitation to him to attend the sale. Mr Tippett had attended earlier sales at Nareen and it was not surprising therefore that Mr Fraser should ring him as a potential customer to inform him of the sale. Mr Fraser followed up the telephone conversation by posting to him a copy of the sale catalogue.

24 On the morning of 17 March 1994, Mr and Mrs Tippett travelled to Nareen by motor vehicle for the purpose of attending the sale. As they were leaving Blackford it became obvious that a cow in the process of calving needed attention and assistance. As a result, they arrived at Nareen somewhat later than expected. At that stage, a crowd had gathered around the sale ring. Many of the persons present were seated on the stands which I have earlier described. Mr and Mrs Tippett had sufficient time to make a brief inspection of the bulls in the holding paddock. After doing so, they walked to the vicinity of the sale ring and managed to find two seats on the southern stand at the bottom and on the western corner.

25 The practice at the sale on 17 March 1994 was that the bulls were driven into the ring from the race and paraded around the circumference of the ring so that clients could inspect each beast. The bulls were paraded by a ringmaster. They were not led by the nose but allowed to walk freely.

26 Mr McIntyre acted as ringmaster in connection with the sale. It was his responsibility to handle the bulls in the ring. He was a very experienced ringmaster, having handled bulls in some 400-500 sales before the sale at Nareen in 1994. Mr McIntyre said that he had handled cattle for approximately 37 years and on some twenty or so occasions a year. On the occasion of the seventeenth annual sale at Nareen in 1994, bulls were guided around the ring rather than being led on a tether. Mr McIntyre had a stick of some four to five feet in length which he used to assist in the parading of the bulls.

27 Mr McIntyre gave evidence to the effect that it was the custom at Nareen before a sale to condition the bulls to the company of human beings. For a period of three to five days, young bulls were hand fed when they were weened. At that time they were also drenched and dehorned.

28 The preparatory work done on bulls before a sale at Nareen involved hand-feeding them. This was carried out over a period of three months prior to the sale. In the first six weeks they were fed once a day and in the remaining six weeks, twice a day. During the hand feeding they were in touch with humans. Also, in some three or four days before the sale, the bulls were washed and groomed. They were also washed during the morning of the sale. All of this enabled them to become used to humans and encouraged them to act quietly in their presence.

29 On the day of the sale, an auctioneer and his assistants were standing on a platform at the eastern end of the sale ring. He had at his disposal a public address system so that he could be heard clearly by the assembled crowd.

30 The auction began and the first five lots were sold under the hammer. The sixth lot was a young Simmental bull known as Mountbatten. He was led into the ring and paraded. At the southern side of the ring, he raised his chin and put it over the top rail and then placed his front hooves over it, moving to the point where his centre of gravity was on the outside of the ring, and then tumbling over the top rail on the southern side and on to the ground in front of the southern stand. He got to his feet and rushed to the gap between the southern and western stands, out between the gap and over a fence above a water trough in the vicinity of the rear of the southern stand, and came to rest in a holding paddock at the south of the southern stand.

31 It was the evidence of Mr Porter, which I accept, that when the bull raised its head above the top rail of the bullring, it saw other bulls in the holding paddocks to the rear of the southern stand and made its way to join them, in the gap between the southern and western stands, preferring the company of other bulls to the sale ring environment with the crowd in attendance, the noise of conversation and the public address system.

32 Mrs Tippett was struck by the bull while it was endeavouring to leave the vicinity of the sale ring. There was an impact on her left thigh and chest causing her to fall and land on her right shoulder. Her injuries consisted of fractures of some ribs on the left side and a fracture in the right shoulder region. She was lifted on to a chair where she remained until the ambulance arrived.

33 Mr Tippett observed the bull coming over the sale ring fence towards him and immediately ran in order to be clear of the beast. He made his way to the water trough at the rear of the stands and appeared to reach it at about the same time as the bull. The bull went over the fence above the water trough. Mr Tippett was seriously injured by the bull whilst attempting to get over the same fence at the same time as the bull. He found himself in the holding paddock lying on his back and in a puddle of water alongside the water trough. He remained there until the ambulance arrived. Mr Tippett could not remember being hit by the bull but he does remember lying in a puddle of water alongside the water trough. He felt unable to move.

34 The ambulance arrived one and half hours or so after the accident. Mr and Mrs Tippett were taken by it to the Coleraine Hospital. The ambulance did not remain there long - only for sufficient time to enable pain relief to be administered. It moved on to Hamilton Base Hospital where Mr and Mrs Tippett stayed overnight. Although the hospital was able to provide an orthopaedic surgeon to attend to Mr Tippett's leg, he was unable to operate because two surgeons would be required for that purpose. Accordingly, Mr Tippett's leg was stabilised for that evening and on the following day, he was conveyed by air-ambulance to The Royal Adelaide Hospital. On arrival, he was x-rayed.

35 Mr Tippett's left femur was broken in two places. His leg was swollen and he was in considerable pain. At The Royal Adelaide Hospital he was provided with a morphine pump to stem the pain.

36 While at The Royal Adelaide Hospital, Mr Tippett underwent an operation on his left leg in which the fractures resulting from the accident were internally fixed by a locked nail. Post-operatively he made a steady recovery, although during the first few days he suffered severe discomfort from abdominal distension. He began walking with assistance after one week and at that time was transferred to Parkwynd Private Hospital for convalescence for a period of two weeks or thereabouts. While at Parkwynd, he received physiotherapy treatment to facilitate walking as well as exercise of his left knee joint. On his discharge from Parkwynd Hospital, he was able to walk with a frame and without any other assistance.

37 Mr Tippett's operation at The Royal Adelaide Hospital was carried out by Mr A M Ingman, an orthopaedic surgeon. Mr Ingman also supervised his recovery at The Royal Adelaide Hospital and later at Parkwynd.

38 On 12 April 1994 Mr Ingman expressed the opinion that Mr Tippett was making good progress. At that stage his opinion was as follows:

"The incident on 17.3.94 has caused a segmental fracture of his left femur and quite marked soft tissue contusion in the left thigh. So far he is making good progress following treatment by internal fixation with a locked nail. The fractures would require three to four months to unite allowing walking with full weight bearing, and six months before he can walk without any walking aids. There will be some stiffness in the knee which is likely to gradually improve but it might not completely recover. Complications could still occur, such as infection of failure of fracture union. If so, such conditions should have manifested themselves within the first year. Assuming that they do not occur, his fractures should have soundly united by one year and his treatment then would be largely complete, but further surgery to remove some of the internal fixation might be necessary. Ultimately he should have relatively little residual impairment. There will probably be minor loss of general strength in the leg and some loss of full knee flexion, restricting activities such as kneeling and squatting. He should be fit for some supervisory work on his farm within the first three months, and for travelling between Kingston and Adelaide after three to four months.

He would not be fit for significant manual work until six months after injury. Ultimately, he should have no significant disability in regard to administration and travelling, but there will be some permanent disability in regard to heavy manual work, climbing etc. If no complications occur, his final result should be assessable at twelve to eighteen months after the injury."

39 Mr Ingman saw Mr Tippett again on 10 May 1994. He was of the opinion that the fractures were healing satisfactorily. He also expressed the view that Mr Tippett was progressing as well as could be expected. He considered that Mr Tippett would remain unable to carry out farm work for a period of six months or so except for purely administrative aspects such as office work. He thought that the same would apply to business activities in respect of Daylite Industries.

40 Mr Tippett's condition gradually improved during 1994 so that by 25 August 1994 he could walk intermittently without a walking stick. His left knee continued to cause him pain and he continued to limp. X-rays showed that the upper fracture in the left femur had united but the union of the lower fracture was uncertain.

41 He was advised to persevere with the matter but on 21 September 1994 he noticed something give way in his leg causing an increasing deformity. Further x-rays were taken and these confirmed a clinical impression that the fixation nail inserted in his leg had fractured as a result of fatigue. A further operation was carried out on 22 September 1994 when the broken nail was removed and a new nail inserted. Mr Tippett was discharged from hospital on 5 October 1994. By then, the wound in his leg had healed well and his abdominal pain had subsided. The swelling in his knee remained and he continued to notice some aching. However, there was gradual improvement. By 15 December 1994, he was able to walk intermittently without a walking stick and the knee inflection was almost normal.

42 He was next seen on 22 June 1995 when he was walking without an aid but nevertheless felt an intermittent unsteadiness in his leg. Pain persisted in his hip, knee and ankle.

43 He was seen again on 14 February 1996. He was continuing to have physiotherapy and his knee extension power had improved. He was unable to lie on his left hip and complained of some pain in his knee and ankle after prolonged walking, especially over irregular ground.

44 In a report dated 15 February 1996 Mr Ingman expressed the view that there were some ongoing difficulties with Mr Tippett's left leg, that he had persistent swelling in the knee and thigh and some slight restriction on inflection in the knee. He further considered that there would also be some general aching with activity, somewhat limiting his overall endurance. In the report referred to, Mr Ingman was of the opinion that gradually during 1995 Mr Tippett had become fit for a moderate level of manual activity. He considered that in the future Mr Tippett would continue to be fit for active work but with a mild restriction on overall endurance and strength. Mr Ingman assessed the residual impairment of Mr Tippett's left leg on a percentage basis at 10% loss of the function of the leg as a whole.

45 By late October 1997, Mr Tippett was generally coping with activities of daily living. He would tire more rapidly and was not well co-ordinated so that he would easily fall if miscalculating steps. He was unable to handle a motor cycle with the same degree of skill as possessed prior to the accident. He was walking freely without aids and the range of knee inflection was normal and ligaments appeared intact.

46 In a report dated 11 November 1997 based on an examination of Mr Tippett taken on 21 October 1997, Mr Ingman expressed the following opinion:

"His condition has not substantially altered since he was last seen on 14-2-96. The opinion given in my previous report is therefore unchanged. His perception of feeling less well coordinated and tiring more quickly would be due to a combination of the injury and increasing age. No further treatment is indicated, except that removal of the screws would probably cause improvement to the tenderness on the medial side of his knee and the crepitus [grating sensation] perceptible on the lateral side of the knee. These features did not trouble him greatly, so at present he does not wish to have any further surgery. However, as previously stated, allowance should still be made for future removal of the internal fixation. Otherwise his impairment is related to some general weakness and diminished balance and coordination, which I still assess, in the context of his age, a 10% impairment of the left leg as a whole."

47 Mr Ingman's reports referred to earlier in these reasons were admitted in evidence by consent.

48 Prior to the accident, Mr Tippett was in good health and active in the conduct of his farm in Blackford and in the business of Daylite Industries. He tended to be positive in outlook at all times and was generally not daunted by difficulties to tackle. He had plenty of confidence. He worked long hours. The week tended to be divided between the farm at Blackford and the factory at Daylite Industries. Mr and Mrs Tippett would generally drive down to Blackford on a Friday evening and return home on the evening of the following Tuesday. They tended to drive in the evening in order to avoid loss of time in the day. There were exceptions. In some weeks Mr Tippett remained longer at the farm; in others he remained longer in Adelaide attending to the affairs of Daylite Industries.

49 After the accident, Mr Tippett was seriously debilitated. He was on crutches for some months until his left leg healed sufficiently to enable him to walk without them. He was unable to do anything for some months. He was totally incapacitated until July 1994 and substantially incapacitated but not totally from July until the following December. As I have indicated, he suffered a severe reversal in September 1994 when a new pin had to be inserted into his leg. He continued to suffer physical and psychological incapacity until about September 1995. He has sustained steady improvement from that time.

50 Mr Tippett is still physically unable to sustain work for anything but short periods of time. He is able to work for two hours or so but then needs to rest. He handles farm work with difficulty. He is unable to climb windmills and is slow in the loading of cattle which is a task which has some danger associated with it. He often falls, in that his leg tends to give way. Sexual relations before the accident were normal but since the accident, he has suffered a loss of libido.

51 Mr Tippett is a key man in Daylite Industries. Before the accident, he was the driving force in the promotion of the company and the securing of orders for the manufacture of fume cupboards and goods manufactured from perspex. Work associated with the manufacture of fume cupboards involved the taking of detailed measurements of the site. This included moving about on the roofs of premises, work which needed a degree of agility. This work would become extremely dangerous for someone whose legs were not in good order and who had lost his agility.

52 Despite his physical recovery, Mr Tippett continued to suffer from severe depression. He was unable to seek new contracts for the business and the memory of the accident was with him at all times. He was not able to deal with persons in business as he normally would. He did not show the same sense of tolerance as before the accident but became very irritable. He complained of a lack of energy and appeared to derive very little sense of pleasure from life. Sleep was intermittent and he suffered periods of wakefulness.

53 He was eventually persuaded to see Professor A C McFarlane, Professor of Psychiatry at the Adelaide University on 19 April 1995 with a number of visits to follow.

54 In a report dated 2 February 1996 admitted in evidence, Professor McFarlane said:

"On the basis of the history obtained, Mr Tippett was in an accident that involved significant threat to his life and well being. The injuries sustained and his subsequent distress created profound feelings of helplessness and lack of control. This is an event of the type which can lead to a post traumatic stress disorder. He describes the range of other symptoms indicative of this disorder. First, he has intrusive (sic) and memories that specifically relate to the circumstances of the accident. These memories frequently play on his mind and occur without immediate triggers.

Secondly, he described a pattern of marked loss of pleasure, withdrawal and emotional numbing as a consequence of the accident. As well, he actively tries to distract himself from his recurring ruminations about the accident.

He also described a pattern hyperarousal indicated by his irritability, sleep disturbance and his disturbed concentration although this had somewhat improved when I saw him.

Also, he had developed a major depressive disorder. His mood was significantly depressed and he appeared to have a significant diurnal mood variation. He had a range of vegetative dysfunction, including his loss of energy, sleep disturba[n]ce anhedonia."

55 It is reported, Professor McFarlane gave the following prognosis:

"It is unlikely that Mr Tippett will have any long standing disability. It is likely that he will have some minor residual symptoms relating to the distressing memories, but otherwise he should continue to do well. However, he remains at increased risk of further episodes of depression, following future life experiences as a consequence of this accident. Any residual disability he has in relation to his work is a consequence of his physical symptoms."

56 In giving evidence in this case, Professor McFarlane was of the opinion that Mr Tippett no longer had a psychiatric disorder.

57 While under treatment from Professor McFarlane, medication was prescribed in relation to Mr Tippett's psychiatric symptoms. The medication concerned had adverse side effects, including the inducement of a loss of libido. An alternative medication was prescribed but this was not as effective in controlling the symptoms complained of by Mr Tippett.

58 After the accident Mrs Tippett remained at the Hamilton Base Hospital for five days or thereabouts. She was then transferred to Kingston Hospital in South Australia where she remained until 1 April 1994. Initial treatment at Hamilton included the insertion of a drain in her chest and the supporting of her right arm in a sling. She regained the use of her arm over the next few weeks. Her left shoulder was also in continuous pain, although this was not severe. She remains unable to put her right arm behind her back or to lift heavy weights.

59 Mr Ingman saw Mrs Tippett on 10 May 1994 when he found that there was no major swelling or muscular wasting but that there was tenderness over the upper humerus. Movement was restricted to some extent. She had acquired a full range of movement in her left shoulder, although with some pain. Some tenderness was noted in the subacromial region and over the tip of the acromion. X-rays were taken which showed a mildly displaced fracture of the right upper humerus involving the surgical neck and greater tuberosity portions. Displacement was approximately two to three millimetres but alignment was good.

60 Mr Ingman examined Mrs Tippett again on 14 February 1996. By that time, the range of movement in her shoulder had gradually improved. She had had physiotherapy for several months. In a report dated 15 February 1996, Mr Ingman expressed the view that Mrs Tippett's treatment was complete. He was of opinion that the fracture in the right humerus had healed and that she was able to perform most normal activities, but at the expense of some discomfort. He felt that her endurance would be reduced with regard to prolonged activity. Mr Ingman thought that there would be some residual disability which, on a percentage basis he assessed at five percent loss of use of the right arm as a whole. Mr Ingman was of the view that Mrs Tippett was restricted in leading a normal life during the first three months following the accident. He expected no further complications although he felt that she probably would perform some activities more slowly than before the accident.

61 Mrs Tippett saw Professor McFarlane herself in or about November 1995. She complained of being stressed and irritable and had major difficulties with speech. She was acutely depressed.

62 Professor McFarlane made the following diagnosis:

"Following the incident at Nareen, Mrs Tippett developed a post traumatic stress disorder and associated major depression. The incident where the bull leapt over the saleyard rail left her with a profound state of helplessness and fear.

She has repeated intrusive and distressing recollections, both about the incident and the continuing impact that it has had on her and her husband's life.

She has become significantly more withdrawn and lost interest in a range of previously pleasurable activities since the event. She has also had a sense of emotional numbing.

She developed a pattern of sleep disturbance and difficulties with her memory and concentration.

She also had developed a major depressive disorder, characterised by a significant sense of despondency and loss of energy. She had lost weight and had a general sense of anhedonia.

It is frequently the case that major depressive disorder and post traumatic stress disorder co-exists. Under the DSM-IV system there is not a hierarchical system of diagnosis."

63 In his report in respect of Mrs Tippett, Professor McFarlane made the following prognosis:

"In general, this woman's rapid response to treatment and her capacity to function in the presence of a moderate degree of distress are good prognostic features. However, having developed this pattern of symptomatology, she remains at risk of developing further symptoms in the future. This is particularly the case at times of other major life stresses."

64 I accept the evidence of Professor McFarlane in relation to both Mr and Mrs Tippett.

65 On 17 March 1994, Mr and Mrs Tippett were lawful entrants on the land occupied by the first defendants. The first defendant. had a duty of care to Mr and Mrs Tippett as lawful entrants in relation to the conduct that day of the auction on the property.

66 The separate duty of care of an occupier of a property is now no longer applicable, but the doctrine has been subsumed into the general law of negligence. In Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479 at p488, the majority of the High Court observed:

"We think it is wholly consistent with the trend of recent decisions of this Court touching the law of negligence ... in this area of an occupier's liability towards entrants on his land ... to simplify the operation of the law to accord with the statement of Deane J in Hackshaw [1984] HCA 84; (1984) 155 CLR 614 at pp662-663:

'... it is not necessary, in an action in negligence against an occupier to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff ...'

... The fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent."

67 In the present case, there is a sufficient degree of proximity of relationship between Mr and Mrs Tippett on the one hand and the first defendants on the other to establish a duty of care on the part of the first defendant. to Mr and Mrs Tippett: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at p663.

68 On the question of breach of duty, the following passage from the judgment of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40 at pp47-48 appears to be a useful statement of the applicable law.

" A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [1951] UKHL 2; [1951] AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. 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.

... The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

69 In my view there was a risk of injury here which was plainly foreseeable. Such risk was not far-fetched or fanciful. However, it must be considered along with other factors referred to above. Damage from an escaping bull could be very serious indeed, particularly in a confined area. The sale ring could have been left in its original state or if lowered, it could have been restored to its original state at a cost which was relatively quite minimal. Also, the line of sight between a bull in the ring and the bulls in the holding paddocks could be eliminated by the erection of a shield of hessian behind the viewing stands. In fact, both of these precautions were taken by Nareen Pastoral Co. in relation to bull sales in subsequent years.

70 In my opinion the first defendants were guilty of a breach of the duty of care which they owed to the plaintiffs and were guilty of negligence. The first defendants failed to erect a sale ring of sufficiently uniform height to prevent an escape occurring. They failed to adequately supervise the bull in question while in the sale ring, eg by leading it on a tether while being paraded. They failed to design and build a sale ring and other facilities which would adequately prevent the bull in question while in the ring from having a view of the bulls in the holding yards surrounding the ring and viewing stands, thus encouraging an escape on the part of the bull.

71 On the day in question, there were other features which may have contributed to the situation. The bulls were made to walk along a narrow race prior to entering the ring. The auctioneer was using a public address system. There was a level of conversation - how intense we do not know, but from 80 to 100 persons it would have been significant. The bulls had the disconcerting experience of being stared at by scores of pairs of eyes of persons seated in the stands around the ring.

72 In themselves, these additional matters would not have amounted to a breach of a duty of care on the part of Nareen Pastoral Co. but they are aspects of an environment where the bulls would suffer a degree of stress as a result of which the breaches of duty which I have instanced above would be more likely to occur.

73 Counsel for the defence called Mr A D Holmes to give evidence. Mr Holmes was the purchaser of three bulls at the sale, one of which was Mountbatten, the bull the subject of these proceedings. Mr Holmes made an examination of the bull in question whilst in the holding yards on the day of the sale. He described him as "nice and quiet". While on Mr Holmes' property, the bull jumped out of holding yards on a number of occasion. He seemed to prefer being in an open paddock rather than being confined in a holding yard. Cows were brought to him. His progeny were well-tempered; there was nothing unusual about them. This case is concerned with whether there has been a breach of duty of care in the set-up and conduct of the auction which occurred at Nareen on 17 March 1994; it is not concerned with the question of whether a particular bull did or did not have a propensity to escape from the sale ring.

74 Other witnesses called by the defendants testified that the sale ring in this instance, after it had been reduced in height, was not dissimilar to other sale rings in use in other cattle studs in western Victoria. In my view, the breach of duty of care is identified in the manner I have indicated earlier in these reasons. The risk of injury was foreseeable and any response to that risk on the part of the first defendants could be such that the risk of injury would be eliminated at a cost which could be described as relatively minimal. The applicable test has nothing to do with what might be the accepted norm amongst studmasters in a particular region or locality.

75 As a result of the first defendants' negligence the plaintiffs suffered the loss and expense referred to in these reasons and generally dealt with under the heading of damages.

76 On the evidence before me, I am unable to see how any of the plaintiffs could have a cause of action against the second defendant, Fraser Properties. So far as the first defendants are concerned, there was a sufficient degree of proximity between them and the plaintiffs. Fraser Properties may well have been the owner of the land, but it does not follow that it was the occupier. In my view it is the occupier who is liable to exercise a duty of care: Lane v Cox (1897) 1 QB 415; Cavalier v Pope [1906] UKHL 1; (1906) AC 428. As far as I can ascertain, evidence was not led on this point, nor was it addressed in argument.

77 Also, in my opinion the plaintiffs do not have a contractual claim against any of the defendants. Such a claim is alleged in the statement of claim and is based on the fact that Mr Fraser extended an invitation to Mr and Mrs Tippett to attend the sale on 17 March 1994. I consider that the extending of such invitation is insufficient to found a contract between any of the parties.

79 Mr Tippett has sustained a very serious injury to his left leg, an injury in respect of which he has incurred considerable pain over a period of years and from which he has not completely recovered and is not likely to ever fully recover. His condition has been exacerbated by the need to carry out a further surgical procedure on the leg in September 1994. Apart from the pain which he has suffered, the injury has amounted to a severe disability seriously limiting his enjoyment of life. Before the accident, Mr Tippett was an active man enjoying pursuits which required a good state of health to perform. He needed to be agile to carry out the physical work entailed in the measuring up for, and the installation of fume cupboards. He also needed to be agile in the management of his farm. Clearly, his ability to perform those pursuits is now curtailed. Also, he experienced severe feelings of helplessness and lack of control and a range of other symptoms indicative of post-traumatic stress disorder. He is unlikely to ever regain agility in his left leg to the degree he enjoyed before the accident. As discussed earlier, he suffers a permanent impairment of his left leg assessed by Dr Ingman at 10%. He no longer suffers from a psychiatric disorder.

80 There is a prospect of Mr Tippett having to undergo further surgery to remove the nail in his left leg. Mr Ingman expressed the view in his report of 15 February 1996 that he considered, and I accept, that the cost of further treatment to remove the nail and the likely total medical and hospital costs would be in the vicinity of $2000.

81 In the circumstances, I assess Mr Tippett's damages for non-economic loss at $35000 and I assess his damages for future non-economic loss at $20000 inclusive of the amount of $2000 referred to above.

82 Mrs Tippett did not suffer to quite the same extent as her husband. Her right humerus was fractured at the neck. Her right arm was placed in a sling for six months or more. She was subject to other bruising and pain and, according to Professor McFarlane, suffered from post-traumatic stress disorder and a depressive disorder arising from the distress experienced in the immediate aftermath of the accident. She responded well to treatment. However, according to Professor McFarlane, and I accept, approximately 50 per cent of people on medication will have a relapse of their symptoms once their treatment ceases. Long term maintenance of treatment would be necessary. The residual disability of the right arm, on a percentage basis, was found to be of the order of 5%. In the circumstances, I assess Mrs Tippett's damages for non economic loss at $15000 and I assess her damages for future non-economic loss at $7000.

83 The parties have agreed that special damages in this matter be assessed at $17350 in the case of Mr Tippett and $7555 in the case of Mrs Tippett.

84 Daylite Industries has made a claim in respect of a wrongful act per quod servitium amisit.

85 In Attorney General for New South Wales v Perpetual Trustee Company (Limited) & Others [1952] HCA 2; (1951-1952) 85 CLR 237, Dixon J said at p248:

" There is no reason to suppose that the action per quod servitium amisit would lie only for the loss of the services of persons of low degree. In the historical development of the actions per quod servitium amisit there has not been any limitation upon the class of services for the loss of which a private employer may sue. All that is required is that the relation of master and servant shall exist. A modern trading company whose general manager is disabled through the negligence of a stranger may sue him for the loss of the manager's services in the same way as the company might have sued had the injured man been an artisan in its employment."

86 The nature of the claim in respect of a wrongful act per quod servitium amisit was discussed at length by the High Court in Commissioner for Railways (NSW) v Scott [1959] HCA 29; (1958-1959) 102 CLR 392. At p437, Menzies J said:

" My conclusion is, therefore, that the action lies in any case where the relationship between the plaintiff and the person injured is that of master and servant. I add that to attempt to confine it to domestic or to menial servants would be to impose a restriction of an imprecise character which would create further problems of its own ... "

87 In Commissioner for Railways v Scott, Fullagher J was in the minority. However, the following dictum contained in his judgment at p408 has been cited with approval in later cases:

" In a true action for a wrongful act per quod servitium amisit the measure of damages must, I think, be the pecuniary loss actually sustained through the loss of the services of the servant. Wages paid to the servant during incapacity under a contract or a statute do not necessarily represent that loss. Nor would I think ... that wages paid to the injured servant afforded even prime facie evidence of the loss sustained by the master."

88 The gist of the claim is that the master or employer seeks damages for loss sustained by him or her by being deprived of the services of a servant or employee. Where the master or employer is a company the servant or employee may be a director or a governing director or managing director. These relationships have nothing to do with the matter except in the case of a managing director where part of the relationship between the company and the managing director is one of master and servant, or to use modern parlance, of employer and employee.

89 In Lee v Lee's Airfarming Limited (1961) AC 12, Lord Morris of Borth-y-Gest, in delivering judgment of the Judicial Committee of the Privy Council said, at p25:

"It is well established that the mere fact that someone is a director of a company is no impediment to his entering into a contract to serve the company."

90 In Marinoviski v Zutti Pty Ltd [1984] 2 NSWLR 571 Hutley JA said at p573:

" In Zuijs v Worth Brothers Pty Ltd [1955] HCA 73; (1955) 93 CLR 561 at 571, Dixon CJ, Williams, Webb and Taylor JJ said: 'What matters is lawful authority to command so far as there is scope for it'. There was, in my opinion, some opportunity for control, slight though it may be. The employee was, I think, correctly described as a defacto governing director of the company, but even if he had been a de jure governing director, that would not preclude him being a servant: Lee v Lee's Airfarming Ltd [1961] AC 12. I am of the opinion that Hodgson J was correct in finding that the employee was a servant of the respondent."

91 Daylite Industries Pty Ltd is a family company of which Mr and Mrs Tippett are the directors and principal shareholders. A few shares are held by Mr Tippett's son. Mr Tippett is chairman of directors. There is nothing in the company's minute book to suggest that Mr Tippett has ever been appointed a managing director although a power to make such an appointment rests in the applicable Table A adopted by the company as part of its articles of association. Mr Tippett inherited the company from his father. Since leaving school he has worked in the business, ultimately taking over from his father as manager and as chairman of directors. In most years he has been paid a salary for his services although the amount would be regarded as minimal considering the skill which he had acquired in the conduct of the company's business and the responsibility which he assumed in relation to its affairs. No salary was paid to Mr Tippett in the years immediately following the accident. Before the accident, he was very closely involved with the company's affairs. He took it on himself to look for business, to actively search for orders for the company's business, to tender for contracts for the manufacture and supply of the company's products, and generally to measure up and install, or at least to closely supervise the installation of its products. There is no doubt that Mr Tippett would be regarded as an employee of the company. This would be so even if in some years no salary was in fact paid to him in order to assist the company's position with the bank or for some other reason. There is no evidence that Mr Tippett's relationship to the company as an employee was ever terminated; nor was it ever intended that such a relationship would cease.

92 The relationship of employer and employee between the company and Mr Tippett goes back many years. The nature of the work that he undertook is clearly that which would generally be undertaken by an employee of the company. It is not work which one would expect a non-executive director to carry out. It was work which was integrally part of the company's general business operation and work which, in normal circumstances, one would expect would be the subject of a regular salary. I consider that Mr Tippett was an employee of the company at all material times and that he was a servant for the purposes of the per quod servitium amisit claim.

93 I proceed now to deal with the assessment of damages in respect of the per quod servitium amisit claim.

94 Gross annual sales of the Daylite Industries business were reasonably constant over the five year period ending on 30 June 1994, three months or so after the accident. The actual gross annual sales figures for that period were as follows:

95 It will be seen that there was very little fluctuation in the level of gross sales in respect of this company over the five year period concerned. Some fluctuation would be attributed to the fact that the flow of orders would never be entirely constant and that there would always be some minor variation on that account.

96 In 1995, the gross annual sales fell dramatically to $234,511. From that point, there was a partial recovery in 1996 and 1997. A full recovery was achieved in 1998.

97 Mr Tippett attributes the decline in sales to the accident and his consequent inability to actively and enthusiastically obtain orders for the manufacture and installation of the company's products. There is no doubt that Mr Tippett was seriously debilitated for a period of eighteen months to two years after the accident and that the business of Daylite Industries must have suffered a lack of efficient and experienced direction during that period.

98 The following figures demonstrate the loss in gross annual sales over the financial years 1995 and 1996:

Average Gross Sales Gross Sales Shortfall Gross Sales Shortfall

Estimated total shortfall in gross sales on an annual basis - $276,954

99 Counsel for the defendants sought to establish that a possible cause of the fall in gross annual sales during the financial year ended June 1995, if not the principal cause, was a falling off of business of one or more major customers. In particular, he drew attention to the falling off in business on behalf of SACON, the government body concerned with the installation of fume cupboards in government schools and laboratories. However, it appears from the evidence that there was no decline or significant decline in work from this quarter. Rather, it appears, that a change of practice occurred at or about that time whereby orders formerly placed with SACON would thereafter be placed with contractors or sub-contractors involved in carrying out the work of which the installation of a fume cupboard was only a small part.

100 The gross sales figure in the year ended 30 June 1997 did not differ materially from the figure for the previous year. However, there does appear to have been a dramatic increase in gross sales in 1998. Although the figures for the year are not available, it does appear that the figure for nine months ended 30 April 1998 was $511,787.

101 Taking all these matters into account, I cannot help but come to the conclusion that the loss in sales for the financial years ended June 1995 and 1996 was attributable to the accident and that no other likely cause has been identified.

102 A number of variable costs were saved which were applicable to the lost sales totalling $276954. The variable costs saved are as follows:

PurchasesFreight & CartageSub-contractorsFactory WagesElectricityFactory RequisitesSuperannuationWorkcover 28.0%0.6%2.9%23.3%0.7%0.6%4.5%5.4% 77,5471,6628,03264,5311,9391,66212,46314,956

103 Allowance must be made for income tax saved in respect of the gross profit lost $94,162. Lost profit of $94,162 apportioned over the 1995 and 1996 financial years on a pro rata basis gives the following result:

104 Allowance must be made for carry forward losses in those years as follows:

105 Taxable incomes and tax liabilities have been derived after adjusting for profits lost in the respective years as follows:

106 I have not included in the above calculations the shortfall in respect of the 1997 year for three reasons. The first is that Mr Phillip Jones, to whom I shall refer shortly, was employed by Daylite Industries in October 1995. He was employed to do much of the work formerly carried out by Mr Tippett or under his supervision. Once Mr Jones had had from six to nine months in the employment of Daylite Industries, it would be reasonable to assume that any decline in gross profits would have been remedied in that period and that any shortfall in the 1997 financial year would have to be attributed to other causes. Secondly, the plaintiffs' advisers have provided to the Court detailed calculations of the loss of gross profits of Daylite Industries attributable to the accident up to the end of the 1996 financial year. To include the 1997 financial year would be to give the plaintiff, Daylite Industries, more than it had asked for. Thirdly, I do not have the necessary date from which the necessary calculations could be made.

107 In an expert's report prepared by Mr J Irving, a chartered accountant, at the instance of the defendants, the question of mitigation of damages was raised. It would appear that this issue was not pleaded. In the circumstances I am of the view that I need not have regard to it.

108 Following the accident, Mr and Mrs Tippett were in serious difficulty in the running of the factory belonging to Daylite Industries, as Mr Tippett had no deputy who could take over in his absence. While in the Royal Adelaide Hospital he arranged with his brother in law, Mr Jerry White, for him to attend to the management of the company on a part time basis and, in particular, to act as a cheque signatory to enable the wages and company expenses to be paid. Mr Tippet himself was not able to go to the factory for at least three weeks after the accident. Mr White knew nothing about the company's fume cupboard business and was not in a position to attend to the work involved in winning contracts for fume cupboards. There was one large contract being worked on at the time of the accident as well as a number of outstanding tenders for new work. Mr white had experience of management as he was managing his own business being one for the import and sale of lighting.

109 Mr White claimed a total of 57.75 hours at $100 per hour being in respect of various periods extending from March 1994 to June of that year. A memorandum containing the details of Mr White's claim was admitted in evidence on the basis that the hours worked as claimed in the memorandum could be accepted but that the rate per hour was in contention and regarded by counsel for the defendants as exorbitant. Evidence of Mr White's duties at Daylite Industries is very general in character. He worked part time and could only be described perhaps as an office manager. At $35 per hour, Mr White would receive $1,312.50 in a 37.5 hour week or a salary for one year of $68,250. At this rate Mr White's claim would amount to $2,021. It may be that with appropriate evidence led, an hourly rate of substantially more than $35 per hour could be justified but on the evidence before me I have no choice but to make a conservative estimate. I assess the cost of Mr White's services as a substitute employee at $2,021.

110 Mr Stewart was also a brother-in-law of Mr Tippett. He assisted by working in the office of Daylite Industries from the last week of March 1994 to mid July of that year. He managed the office and the production side of Daylite's business. He was employed on a full time basis. His claim was on the basis of $600 per week with a claim of $450 in some weeks, probably because a lesser number of hours had been worked. In my view, this claim is modest and should be admitted without deduction. The amount claimed is $9,150 in respect of services rendered on a full time basis in the period 25 March 1994 to 15 July 1994.

111 The net cost of obtaining the services of Messrs White and Stewart was as follows:

112 Mr Phillip Jones was employed to take over some of the work at Daylite Industries which would normally have been carried out by Mr Tippett. In the first instance, he was employed to assist with a large job at Elizabeth. It was later that he was employed by the company on a full time basis. At the time, Mr Tippett was doing very little at Daylite Industries in view of his mental and physical state following the accident. In particular, he was unable to move about in confined roof spaces or climb ladders. He was not sufficiently agile to attempt to do these things. From the date of his employment on a full time basis, the salary (including superannuation and WorkCover contributions) payable in respect of Mr Jones was as follows:

113 Mr Jones would never have been engaged by Daylite Industries had Mr Tippett not had the accident and had he remained in good health. I accept that in view of the accident and Mr Tippett's subsequent disability, it became necessary for Daylite Industries to engage Mr Jones to do some of the work formerly undertaken by Mr Tippett. The salary paid to Mr Jones is reasonable in the circumstances.

114 Mr Jones has been engaged on a full-time basis. While this may be more than was required, I can see no basis for employing someone in Mr Jones' position otherwise than on a full-time basis. It is highly unlikely that a part-time employee would be available. I am satisfied that the employment of Messrs White, Stewart and Jones was necessary and reasonable in the circumstances.

115 The net cost of substitute employees in the period 17 March 1994 to 31 December 1998 is as follows:

116 Mr A R Letcher, a chartered accountant, prepared an expert's report at the instance of the plaintiffs in relation to the claim per quod servitium amisit. The report covered a number of matters which Mr Letcher considered could be the subject of a claim for damages by Daylite Industries against the first defendants. On the basis of that report a claim was made by Daylite Industries in relation to certain losses incurred in respect of interest, finance and other costs including loan funds or capital contributions to the business to enable it to continue. Also, in order to continue the business, certain assets were sold and other assets re-financed to provide working capital to Daylite Industries. It is claimed that Daylite Industries incurred certain additional interest costs in respect of a current account maintained with Bank SA.

117 In order to deal with these claims either source documents would have to be produced and admitted in evidence or the parties would have to come to agreement as to the claims in question. Neither of these things occurred in this instance.

118 In the circumstances I have insufficient material before me to make any assessment of damages in respect of these matters. Of course, Mr Letcher's report is merely an expert's report. It cannot be a source of evidence of the facts asserted in it unless the parties agree to such a course. There was no such agreement in this case.

119 Mr Tippett is presently 58 years of age. It is reasonable to assume that if the accident had not occurred he would have gone on working at Daylite Industries for another ten years. However, there must be a discount for contingencies. If the accident had not happened, Mr Tippett might have retired to his farm at 65 years of age rather than at 68. Also, his employment by Daylite Industries might be cut short or curtailed by bad health not in any way associated with the accident. I propose to discount the amount otherwise arrived at under this heading, being future economic loss, by one-third to take account of contingencies.

120 Loss of future profits is estimated as follows:

121 This equates to the net present value of a weekly sum of $368.85 paid to Mr Jones for the balance of Mr Tippett's working life (10 years) discounted at 5% rather than 3% because that is the discount rate applied in Mr Letcher's report. This report is an annexure to the statement of claim. I do not think I should grant more than is sought in the pleadings. The multiplier used by Mr Letcher was 388 and I shall use the same.

122 The amount of the damages for future costs is $143,113.80. Deducting one-third for contingencies, the resultant amount is $95,409.20.

123 The total amount in respect of the claim by Daylite Industries is as follows:

124 As I have already indicated, Mr A R Letcher prepared an expert's report in relation to the claim by Daylite Industries. That report was prepared at the instance of the plaintiffs. A report also in respect of the claim by Daylite Industries was prepared by Mr J Irving, a chartered accountant, at the instance of the defendants. Earlier in these reasons I have dealt with a number of matters raised by Mr Irving in his report in answer to Mr Letcher's report. I do not propose to cover that ground again.

125 The statement of claim seeks damages for economic loss in respect of Mr Tippett. I have not awarded any damages under that heading for three reasons. First, no evidence of such loss was given at the trial. Secondly, the claim for damages for economic loss would be for wages lost. If damages were to be awarded under that heading, I believe that such a course would involve double counting taking into account the award of damages I propose to make in respect of Daylite Industries. Thirdly, a claim by Mr Tippett for economic loss is expressed in the statement of claim as an alternative to the claim of Daylite Industries.

126 So far as Mrs Tippett is concerned, it appears that she received the same annual salary in the years ended 30 June 1994 and 30 June 1995 as was received in earlier years. There was a reduction in salary in the year ended 30 June 1996 but this does not appear to me to have been attributed to the accident. She had by then sufficiently recovered to resume her employment with Daylite Industries.

127 I now turn to the question of voluntary services.

128 Both Mr and Mrs Tippett suffered injuries which were extremely debilitating - Mr Tippett more so. Clearly both were in need of assistance at the early stages of their recovery in relation to the management of the farm at Blackford and the carrying out of domestic services. Mr Tippett was on crutches and had the use of one leg only. Mrs Tippett had the use of one arm only. In the early stages, both needed help with showering and dressing.

129 Mrs Tippett engaged Mrs Maxine Millard from Kingston to call at the farm and prepare meals, provide domestic services and carry out essential shopping. Mrs Millard was engaged for a total of 88.5 hours and was paid at the rate of $15 per hour. I find the period of engagement and the hourly rate charged to be reasonable. The case of Mrs Millard was not strictly one of voluntary services. She was paid for the work she did. Nevertheless as a matter of convenience, I have included the claim under the general heading of voluntary services. I allow $1320 damages for this item. In addition, Mrs Millard was reimbursed for her fuel costs in travelling from Kingston where she resided to the farm at Blackford and the return journey. The distance was 50 kilometres for a return trip. Fifteen such trips were involved at a cost claimed of 56 cents per kilometre. I allow $420 for fuel costs.

130 Very shortly after the accident, Mr Rob Stewart and his wife, Mrs Valda Stewart visited the farm. At that stage, Mr Tippett's son, Mr Nicholas Tippett had gone to the farm and was in attendance to keep an eye on the stock. Mr Stewart had no particular experience as a farmer and it is difficult to see why Mr and Mrs Stewart's attendance at the farm was necessary in any event. I decline to make an award of damages for voluntary services in respect of Mr and Mrs Stewart.

131 I do not recall any evidence substantiating the claim of Mrs Kerryn Fortington for voluntary services and fuel costs to the farm at Blackford from Adelaide and return. I decline to make an award of damages in respect of this claim.

132 Mr Nicholas Tippett, Mr Tippett's son, was contacted about the accident and arrangements were made for him immediately following the accident to spend approximately 6.5 weeks at the farm to look after it. Mr Nicholas Tippett was a male nurse and had limited knowledge about running the farm. He did however, have sufficient knowledge to ensure that the stock were kept watered and to cope with any emergency. A claim for $15 per hour would be reasonable in the circumstances. It would be reasonable for Mr Nicholas Tippett to claim a 40 hour week as he had no choice but to spend the entire 6.5 weeks at the farm. I allow $3900 in respect of this claim.

133 I assess the claim for damages for voluntary services as follows:

135 There will be judgment for the plaintiff, Christopher John Tippett against the first defendants in the sum of $76250. There will be judgment for the plaintiff, Glennys Fay Tippett against the first defendants in the sum of $31295. There will be judgment for the plaintiff, Daylite Industries Pty Ltd, against the first defendants in the sum of $323713. The claims of the plaintiffs against the second defendant will be dismissed.

136 I will hear the parties as to interest and costs.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (163 paragraphs)

Parties

Cases Cited (2)