New South Wales Court of Appeal CITATION : Cargill Australia Ltd v Parsons [2004] NSWCA 238 HEARING DATE(S) : 26/05/04 JUDGMENT DATE : 16 July 2004 JUDGMENT OF : Hodgson JA at 1; McColl JA at 2; Cripps AJA at 3 DECISION : 1. Appeal upheld. 2. The decision and judgment of Judge Black be set aside and in lieu thereof judgment for the defendant be entered. 3. The plaintiff to pay the defendant's costs of the proceedings before his Honour Judge Black. 4. The respondent to pay the costs of the appeal but to have a certificate pursuant to the Suitors Fund Act. CATCHWORDS : Negligence - Duty of care - Escape of steer onto a public road - Preventative action alleged by the plaintiff no more likely to reduce the risk of escape than that taken by the defendant. CASES CITED : Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174 Rosenberg v Percival [2001] HCA 18 APPELLANT PARTIES : Cargill Australia Ltd RESPONDENT Colleen Mary Parsons FILE NUMBER(S) : CA 40480/2003 APPELLANT COUNSEL : Mr M L Williams SC RESPONDENT Mr D R Campbell SC with Mr F Tuscano APPELLANT SOLICITORS : Moray & Agnew RESPONDENT McLaughlin & Riordan LOWER COURT District Court JURISDICTION : LOWER COURT 1832/2002 FILE NUMBER(S) : LOWER COURT Black J JUDICIAL OFFICER : - - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40480/03 HODGSON JA McCOLL JA CRIPPS AJA Friday 16 July 2004 CARGILL AUSTRALIA LTD v PARSONS JUDGMENT 1 HODGSON JA I agree with Cripps AJA. 2 McCOLL JA: I agree with Cripps AJA. 3 CRIPPS AJA: On 23 October 2000 at a little after 10pm Mrs Parsons, then aged 59, was seriously injured when the car being driven by her struck a Santa Gertrudis steer on Pine Gully Road Wagga Wagga. She sued the appellant Cargill Australia Ltd (Cargill) in negligence in and about the method used by its leading stockmen to control the steer which had escaped from the herd. She was successful and was awarded $560,306,45 damages. 4 Earlier in the day Cargill, which operated an abattoir at Wagga Wagga, had purchased a little over 300 head of cattle from the Wagga Wagga saleyards. Included were nine Santa Gertrudis steers. At about 5pm the cattle left the abattoir in two mobs. 5 The first mob consisted of 170 heifers and steers and included eight of the nine Santa Gertrudis steers. It was under the control of Mr Miller. The second mob of about 140 were cows except for one Santa Gertrudis steer. The second mob was under the control of Mr Rutland the leading drover. Mr Miller and Mr Rutland were employed by Cargill. 6 The saleyards were approximately 2kms from the abattoir. When the first mob was almost at the abattoir one Santa Gertrudis steer jumped a fence. It ran approximately 300 to 400 metres along a street then up a stock lane where it jumped another fence into an area referred to as the Hill Paddock. 7 After Mr Rutland and Mr Miller finished penning the cattle they followed the steer and found it in the Hill Paddock at a place where it was within eyesight of seven Santa Gertrudis steers about 130 metres away which were drinking at a trough. The steer was separated from them by an open gate and, beyond that, a fence. All the cattle (with the exception of one Santa Gertrudis steer which had been separately penned and the steer the subject of these proceedings) were in an area of Cargill's premises referred to as paddocks 9 and 10. 8 There was no dispute concerning the nature and temperament of Santa Gertrudis cattle. Santa Gertrudis are a species of Boss Indicus. They are more sensitive and temperamental than European Boss Taurus. They are easily agitated particularly in the vicinity of an abattoir. When agitated they are capable of jumping fences at least as high as 1.2m and are prone to clear fences if they are upset or trying to escape from a stressful environment. 9 The experts agreed that although more temperamental and flighty and more prone to being spooked than European species Santa Gertrudis cattle have well developed herd instincts and are strongly gregarious. This has two consequences. The first is that if separated from their own kind they become agitated and difficult to handle and the difficulties include "charging and jumping fences or racing off indiscriminately". The second is that they have a strong instinct to remain in a herd with their "mates" and are more easily controlled in a group than if singled out individually. 10 Mr Rutland and Mr Miller found the Santa Gertrudis which had escaped at about 6.30pm. Due to the Olympics the eastern part of Australia was on daylight saving time and the sun did not set until after 7pm. 11 His Honour inferred, as it was open to him to do, that the steer must have jumped at least another two fences to be where it was when it was struck by the respondent's car approximately 7kms from where it was last seen by Mr Rutland and Mr Miller. 12 Before leaving the saleyards another Santa Gertrudis had jumped a fence. It was controlled by introducing to it a few cows. However when it arrived at the holding paddock (paddocks 9 and 10) it was immediately separated from the cows and placed into a different pen because it did not "blend" with the cows. I mention this because although it does not appear to have been a matter that a great deal of attention was paid to at the trial, it was a circumstance relied on by the learned trial judge in holding that Cargill, by its servant Mr Rutland, was negligent. 13 Mr Rutland and Mr Miller, as I have said, located the steer at about 6.30pm. Mr Rutland said that when he saw the steer its "ears were flopping, he was looking back at something so me and Mat turned over and looked back and you couldn't ask for better, the seven steers that were his mates were standing right out where the trough was …." Mr Rutland said that he formed the view that the steer was "settling" because its ears had drooped, its tail was not up and it was not shaking its head. The learned trial judge did not make a finding as to whether he accepted Mr Rutland's evidence that the steer had settled but, clearly enough, he accepted that it had either settled or was settling when Mr Rutland made the decision to leave it where it was and that he and Mr Miller then returned to the abattoir. 14 Mr Rutland thought that a reasonable course was to leave the gate open so the steer could join its "mates" on the other side of the fence. He believed that its instinct to be with other Santa Gertrudis was such that it would walk through the open gate to the fence where the other Santa Gertrudis were drinking and if they moved from the trough it would jump the fence and join them. 15 As events turned out it did not do so or if it did it did not remain because, as I have said, it continued its westward journey away from the abattoir, a distance of approximately 7kms in the course of which it cleared two more fences before it was struck by the defendant's car on Pine Gully Road. 16 In her statement of claim the respondent particularised the negligence of the appellant as follows: (a) Failing to ensure that the steer remained secured and under constraint within the land of the defendant. (b) Failing to ensure that the steer remained under supervision until it was safely constrained within the premises. (c) Failing to ensure that the fencing at the premises was sufficient to prevent the steer from breaking out. (d) Failing to take any adequate precautions for the safety of the plaintiff. (e) Exposing the plaintiff to unnecessary risk of injury. (f) Failing to warn the plaintiff of risk of injury. 17 Although the statement of claim identified three or four different allegations of negligence (and some of which were repeated in this Court), that was not the case presented at trial. In opening Mrs Parsons' counsel outlined the case made against Cargill and why it was that the method adopted by Mr Rutland amounted to tortious conduct in all the circumstances. The plaintiff's counsel in opening said: "The proper and obvious course was to cut out from the mob that was already in one of the holding paddocks five or six cattle to drive them 200 to 300 metres from the gate which they had left open for this lone steer to exit through and to put five or six head of cattle in with the steer and then come back for the lot of them the next morning, or perhaps even drive them that night". 18 Both sides accepted that Santa Gertrudis cattle could jump fences and that if they came onto a highway they presented a great danger to members of the public particularly at night and close to built-up areas. And it was foreseeable that unless the steer remained where it was or close to its "mates" it could find its way onto a public road. 19 However no case was sought to be made by the respondent that it was negligent of Mr Rutland not to have kept the steer under constant supervision. That was not her case at trial. Moreover it was not her case that the fences of the paddocks were inadequate because they could not prevent a Santa Gertrudis from jumping them. It was not alleged that Mr Rutland and Mr Miller were negligent in the manner of handling the cattle (for example by causing them to become agitated) otherwise than the decision made by Mr Rutland to leave the Santa Gertrudis steer where it was for the night. 20 Mrs Parson's case was that by adopting the method he did Mr Rutland was guilty of tortious carelessness and that, in the circumstances, what he should have done was to return to paddocks 9 and 10 with Mr Miller, culled a few cows and brought them to the steer in Hill Paddock. 21 Both the Mrs Parsons and Cargill called expert evidence concerning the nature and temperament of Santa Gertrudis cattle and the methods available to stockmen in circumstances that faced Mr Rutland and Mr Miller on this occasion. Both canvassed four options in their reports. The first was to do what Mr Rutland did. The second was to attempt to take the steer from Hill Paddock down through at least two gates and put it into paddocks 9 and 10. The third was to bring the seven Santa Gertrudis steers from the water trough to join the steer in Hill Paddock. The fourth was to cull heifers and steers (not Santa Gertrudis steers) from paddocks 9 and 10 and take them to the steer at Hill Paddock. A fifth and the one advanced during the hearing, was to cull five or six cows from paddocks 9 and 10 and take them to the steer in Hill Paddock. 22 Both experts agreed that in the circumstances presented to Mr Rutland it would have been inappropriate to have attempted to bring the steer back down the lane and into paddocks 9 and 10. It had already been agitated and if dealt with individually it was prone to become more agitated and necessarily it would lose eye contact with its "mates". Both agreed that it would have been inappropriate to have taken the seven Santa Gertrudis steers from the water trough to the steer in Hill Paddock because in doing so the lone steer, having already shown signs of agitation, would have lost sight of the other seven Santa Gertrudis steers. 23 Mr Weston's opinion was that the best husbandry practice would have been "to take a small number of cattle into the Hill Paddock to meet up with the lone steer, leave them in the Hill Paddock together for the night and recover them first thing in the morning. This action would have given the steer some company and time to settle down". 24 Mr Spark thought generally what Mr Weston proposed was sound but he identified abnormal circumstances which, as I would understand it, were not contested by Mr Weston. These were, as I have said, that it would have been inappropriate in the circumstances to attempt to take the Santa Gertrudis steers from the water trough. Mr Spark thought that although the lone steer might be expected to respond favourably to the company of seven other Santa Gertrudis the same could not be said for other steers and heifers that were strangers to him. In other words, if cattle were moved to settle the lone steer it should be the seven Santa Gertrudis steers and the only practical route by which these steers could be moved involved them losing eye contact with the lone steer and this could be expected to agitate it further. He also referred to the fact that there was only about one hour of daylight left and that further problems could be caused if any movement was unfinished before sunset. 25 The case then came down to this. On behalf of Mrs Parsons it was submitted that the method employed by Mr Rutland was unreasonable in all the circumstances and that he ought to have adopted the method suggested by Mr Weston. On behalf of Cargill it was submitted that Mr Rutland chose an appropriate method in all the circumstances. 26 Of course for Mrs Parsons to be successful in the proceedings below she was required to establish not merely that one option might be thought by some to be preferable to another but that the option selected by Cargill amounted to tortious negligence. 27 If the method suggested by Mr Weston had been adopted the steer would have been left on its own for at least twenty minutes. That is, the risk of the steer not remaining where it was was the same as the risk inherent in Mr Rutland's method at least for the first twenty minutes. However it was also accepted, as I understand the evidence, that bringing cows (not Santa Gertrudis steers) to the lone steer was also risky because it had the propensity to further agitate the steer causing it to take flight. 28 The learned trial judge in a fairly short judgment dealt with the competing contentions. After referring to the ground common to both sides and after describing Mr Weston's criticism of the modus operandi of Mr Rutland he said: "The conduct by Mr Rutland is criticised on behalf of the plaintiff as being inadequate to deal with the problem. Reliance is placed on the evidence of Mr Weston, the expert called on behalf of the plaintiff. Mr Weston considered a number of animals should have been gathered from the rest of the mob and taken to the Hill Paddock as company for the lone steer. In Mr Weston's view, the course taken by Mr Rutland was unduly optimistic. Mr Spark the expert called on behalf of the defendant expressed the view that Mr Rutland had acted reasonably in all the circumstances and did not agree that Mr Weston's suggestion would have achieved anything. A significant factor is that prior to the escape of the animal involved in the present case another Santa Gertrudis steer had escaped in the vicinity of the saleyards by jumping the fence along the stock route and entering a paddock. The remedy for that situation had been to take the mob into that paddock, incorporate the steer, and drive it together with the rest of the mob down towards the abattoir. The evidence indicated that that had succeeded and nobody suggested that that steer had caused any further problems. Returning to the situation as found and assessed by Mr Rutland while I accept that when he saw the lone steer it had a line of sight to other animals in paddocks 9 and 10 there was no reason in my view to think such line of sight would continue indefinitely as either the lone steer or the other group of animals might have moved. If Mr Rutland's idea was that the lone steer should physically rejoin and intermingle with the other animals at the water trough that would have involved the lone steer finding its way through an open gate and then jumping a fence into paddocks 9 and 10. In my view Mr Weston's suggestion was a constructive suggestion, and additionally was a measure that had worked earlier that very day. I did not follow why Mr Spark was critical of Mr Weston's suggestion and for these reasons I prefer the evidence of Mr Weston to Mr Spark where it is in conflict. I further take the view that despite his wealth of experience which I respect Mr Rutland's solution did not have any significant chance of success, certainly not such prospects as would enable me to see that on the balance of probabilities it would have succeeded. I am conscious that this case has been conducted with the benefit of hindsight namely that the animal did continue its flight westward and did not settle down, but I do my best to put that to one side, having done what he did, namely think the lone animal would rejoin its companions by the water trough because he left the gate open, does not satisfy me that he had taken all reasonable steps to prevent a known risk of the animal further running away in the outskirts of the city. I consider there was more that Mr Rutland could and should have done. I am satisfied he had the time available to cut out a number of cattle from the mob and introduce them to the Hill Paddock as company for the lone steer. It was acknowledged that in general animals were kept together by companionship as opposed to fencing. Had the exercise of introducing further cattle into the Hill Paddock excited the animal to run further then, at least, Mr Rutland would have known of that and the alarm could have been given and the assistance of others sought to pursue the animal. Having regard to all the evidence I am satisfied on the balance of probabilities that had the course recommended by Mr Weston been followed the animal would not have escaped and caused the plaintiff's accident in the result therefore the defendant's are liable for the accident and I turn now to consider the question of damages." Notice of Appeal 29 There were sixteen grounds of appeal. It was submitted that the learned trial judge failed to provide adequate reasons for the conclusions he reached, that he ignored evidence favourable to Cargill, that he failed to take account of Mr Weston's concession that the person being the drover on the spot was in the best position to form a judgment about the appropriate way to deal with the lone steer. The notice of appeal also claimed that the award of damages was excessive. 30 I do not think a miscarriage of justice has occurred by reason only that the learned trial judge failed to give adequate reasons for conclusions he reached. The case lasted five days and the judgment is brief. There were aspects of his Honour's reasons that were open to challenge. In Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) NSWCA 174 Ipp JA reviewed decisions of this Court concerning the judicial policy of requiring the decision maker to give proper reasons. A significant reason is that the losing party should be left in no doubt why they won or lost. A person sitting in court and hearing the evidence would have understood why the learned trial judge reached his decision the way he did. Cargill knew it had been held liable because its stockmen did not deal with the steer in the way Mr Weston opined it should have been dealt with. In a sense the point is academic because if reasons were inadequate this Court is in as good a position as the trial judge to determine the issues of liability because questions of demeanour and creditability played no part in the learned trial judge's decision. 31 As I have said, the method adopted by Mr Rutland was accompanied by risk. That risk was that for some reason or other the steer would not conform to what was assumed to be its gregarious tendencies and would in fact continue its westward journey and, as I have said, it was foreseeable that if it did so, and bearing in mind its ability to jump fences and its propensity to do so when agitated, it could come onto a public highway. 32 However as I have said the method advanced by Mr Weston was also accompanied by risk that the steer would continue in flight. For the first twenty minutes the risk was the same as the risk inherent in Mr Rutland's method – thereafter there was a risk that the steer might become further agitated by cows that were brought to it. 33 In Rosenberg v Percival [2001] HCA 18 Gleeson CJ said: "In the way in which litigation proceeds the conduct of the parties is seen through the prism of hindsight. The foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the alleged tortious conduct there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed." 34 The learned trial judge said he did his best to put hindsight out of consideration and his Honour accepted Mr Weston's opinion that the course taken by Mr Rutland was optimistic. However that did not conclude the matter against Cargill. What had to be established was that Mr Rutland's conduct fell short of what the law required in all the circumstances. 35 The learned trial judge referred to the escape of a Santa Gertrudis steer at the saleyards earlier in the afternoon and to the circumstance that it was rounded up with cows and later taken to the abattoir with the second mob. His Honour found that the evidence indicated that this modus operandi had succeeded and nobody had suggested the steer had caused further problems. However the circumstances surrounding the steer's escape were not really investigated at trial and the only evidence concerning what had happened was that it had jumped a fence and that although other cows were introduced to it it did not blend with them and was separated from them at the abattoir. 36 The learned trial judge referred to the risk that the line of sight would not continue indefinitely but that was only one aspect of the risk posed by the steer in its agitated or settled down state. What was of concern was what the steer might do. On Mr Rutland's method that the steer would for some reason or other not join its "mates" or if it did it would leave. That risk was present in the method advanced by Mr Weston for at least twenty minutes and thereafter there was a further risk that the steer might become agitated by the presence of the cows that were brought to it. 37 The learned trial judge found that Mr Rutland's solution would not, on the balance of probabilities have succeeded. By this I take his Honour to mean that at the time he decided to leave the Santa Gertrudis steer in eye contact with its "mates" it was not likely that it would have remained where it was or would have joined its "mates". In my opinion that finding was not open. It is true that Mr Rutland acknowledged a risk that the animal might not do what he thought it would do but that is a far cry from saying that, putting hindsight to one side, a reasonable man in his position and experience should have thought, on the balance of probabilities, that what he was proposing would not succeed. Mr Weston thought the steer would remain where it was for at least twenty minutes. 38 Mr Rutland was cross-examined. He agreed that if the steer found its way onto a public road it would be a serious matter. In answer to questions to that effect he said: "Yes. If I had thought he would get on the road and damage anybody I would have shot him." 39 The answer vouchsafed by Mr Rutland reflected his confidence that what he proposed to do would ensure that the steer would remain where it was or at least join its "mates". It must be steadily borne in mind that it was no part of Mrs Parson's case that the conduct of Mr Rutland was negligent because in the circumstances he should have shot the steer. After he said that if he thought the steer might have escaped he would have shot him he was asked "that was an option wasn't it?" and he said "yes". The question was objected to because, it was submitted it was not part of Mrs Parson's case that the steer should have been shot. The learned trial judge allowed another question which was "Indeed that's an option that is adopted isn't it from time to time when handling stock?" and Mr Rutland agreed. The learned trial judge recognised that it was not part of Mrs Parson's case but he allowed the question "for the same reason as I overruled Mr Bartley's objection I'll overrule yours because one way of doing this is because the witness is quite comfortable speaking about this". But of course as I have earlier mentioned it was not part of Mrs Parson's case that the steer should have been under constant supervision and that if it moved it should have been shot. 40 The learned trial judge said that having regard to all the evidence he was satisfied on the balance of probabilities that had "the course recommended by Mr Weston been followed the animal would not have escaped and caused the plaintiff's accident. In the result therefore the defendants are liable for the accident….." In my respectful opinion it was not open to the learned judge to conclude that had the course recommended by Mr Weston been followed the animal would not have escaped. As I have said the risk of its escaping for the first twenty minutes was exactly the same as the risk inherent in Mr Rutland's method and thereafter a further risk that the steer would become agitated in the presence of cows. 41 In my opinion I do not think it was open to the learned trial judge to place the emphasis he did on what happened to the first Santa Gertrudis steer that jumped the fence earlier that afternoon. It was Mrs Parson's case originally that steers and heifers should have been brought to the steer in Hill Paddock. Later and during the hearing Mr Weston opined that the cows could and should have been introduced to the steer. However neither Mr Weston nor Mr Spark were asked any questions concerning what happened earlier at the saleyards when the steer escaped and how that was relevant to what Mr Rutland should have done when he found the Santa Gertrudis steer at the Hill Paddock. 42 The learned trial judge said that had Mr Rutland come back with the cows and found that the steer was no longer there "then at least Mr Rutland would have known about that and the alarm could have been given and assistance of others sought to pursue the animal". That aspect of the case was not explored in evidence. It must be remembered that by the time he came back with the cows it would be approaching darkness and bearing in mind the apparent ability of a spooked Santa Gertrudis to run at 10kms per hour it was unlikely that anything could have been done that would have avoided the risk of the steer finding its way onto a public highway. 43 In my opinion the highest the case rose against Cargill was that Mr Rutland might have made an error of judgment in the circumstances where different minds might reasonably be capable of reaching different conclusions. Mr Rutland thought the risk associated with what he did was less than any other option suggested. Mr Weston thought his option of bringing the cows to the steer was a better option because there was a chance the cows might "blend" with the steer. But there were risks whichever option was taken and I do not think in the circumstances it was open to the learned trial judge to conclude that the risks associated with the modus operandi adopted by Mr Rutland were relevantly negligent. 44 It is unnecessary for me to deal with the submission, faintly pressed, that the award of damages was excessive. 45 Accordingly I would propose the following orders: 1. The appeal upheld. 2. The decision and judgment of Judge Black be set aside and in lieu thereof judgment for the defendant be entered. 3. The plaintiff to pay the defendant's costs of the proceedings before his Honour Judge Black. 4. The respondent to pay the costs of the appeal but to have a certificate pursuant to the Suitors Fund Act. ******************* Last Modified: 07/26/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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