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In Gregory Spencer Ward trading as Ward’s Stock Transport v Watson  WASCA 44, the Court of Appeal (WA) considered whether an employer was liable for failing to instruct a very experienced livestock transport employee to never enter a pen with a baulking animal, and whether the trial judge erred in assessing the level of reduction to take into account contributory negligence.
On 18 February 2015, Mr Watson was seriously injured when he was struck by a bull in the course of his employment by Ward Stock Transport (Ward). Ward carried on a business of general livestock transport and Mr Watson’s role was to drive road trains, mainly transporting cattle.
On the day of the accident, Mr Watson and three co-workers were directed to transport cattle from the Cullalla feedlot in Gingin to Fremantle. Each of the employees had a separate road train. As the trailers of a co-worker’s road train were being loaded, a north-west bull baulked before entering the pen of the trailer. The bull remained in the rear pen of the trailer. Mr Watson entered the rear pen to encourage the bull to move forward. The bull turned on him and forced him up against part of the loading dock, causing Mr Watson’s injuries.
The focus of Mr Watson’s case was that Ward should have instructed his employees never to enter a pen with a baulked animal and should have been instructed on how to safely deal with a baulked animal.
The trial judge agreed with this argument and found that Ward’s failure to instruct his employees never to enter a pen with a baulking animal and to instruct his employees on the correct method for dealing with this situation, known as the three man method, was in breach of his duty of care and that the breach caused the respondent’s injuries. The trial judge also concluded that Mr Watson was guilty of contributory negligence and reduced the damages by 20%.
Ward appealed the trial judge’s finding of breach of the duty of care and in the alternative, contended the reduction for Mr Watson’s contributory negligence was manifestly inadequate.
In considering Mr Watson’s case at trial, the Court of Appeal commented that the statement of claim was more than usually uninformative and was also apt to create false issues in the trial of the action. It was noted that the pleading as to the circumstances of the accident were very vague and the particulars of negligence were not in fact particulars at all. Other than one particular, they made no reference to the actual facts and circumstances said to give rise to Ward’s breach and were no more than a pro forma list of failures expressed in entirely abstract terms. It was noted that the continued use of generic particulars derived from precedent documents and based on principles extracted from past authorities without consideration of or application to the facts of the particular case, is a blight in this area of practice of law and is to be deprecated.
Notwithstanding the unhelpful statement of claim, the Court of Appeal was not satisfied that the trial judge erred in finding Ward breached his duty of care. It found that the incidence of cattle baulking whilst being loaded was well recognised in the industry, the magnitude of the risk was very high and Ward relied solely upon his employees’ experience and left it entirely to them to devise a system of work. There was also a recognised method in the industry which was accepted as the safest method available for dealing with a baulking animal, namely the three man method. The Court of Appeal also rejected Ward’s argument that Mr Watson would have ignored the instruction, finding that the issue was whether, having been issued with a lawful instruction by Ward, he would have defied the instruction. In this case, Ward’s evidence was Mr Watson was a good employee who followed instructions.
On the issue of contributory negligence, the Court of Appeal noted that the particulars of contributory negligence pleaded in the defence properly identified the essential allegations in relation to the Mr Watson’s own conduct, namely that he had entered the trailer and placed himself in close proximity to the bull. It was stated that even in a workplace context, the courts have made and upheld significant deductions for contributory negligence on the part of employees, even to the extent of attributing to a negligent employee the majority of responsibility for the harm caused. The Court of Appeal noted that Mr Watson was in no different position to that of Ward - their knowledge was the same and their experience was comparable. The real difference was Ward was in a position to command adherence to a safe system of work for dealing with a baulking animal and to enforce that command. Whilst Mr Watson’s deliberate decision to enter the trailer with a baulking animal was a serious departure from the standard of conduct expected from someone in his position, it was appropriate Ward should bear a greater proportion of the responsibility for the harm caused. Otherwise, the apportionment of responsibility should approach parity. The Court of Appeal found the apportionment of 20% to Mr Watson was outside the range of a reasonable judgment as to what was ‘just and equitable’ and that in all of the circumstances, the appropriate reduction for contributory negligence was 40%.
This decision is a reminder about the importance of properly pleaded particulars of negligence which align with the facts of the case. Defendant lawyers should be alive to vague, pro-forma pleadings, and insist on either repleading of the case and/or further and better particulars being provided, when the pleading of the case is deficient, to enable a full appreciation of the case the defendant has to meet at trial.
Although the result turns on the facts, this case also highlights that an employer owes a non-delegable duty to provide a safe system of work to even the most experienced employees, but that courts will apportion significant responsibility to an experienced employee, if there is a serious departure from the standard of conduct expected from someone in their position.
For further information / assistance regarding next steps and the issues raised in this article, please contact the author, Kerry Wood – Partner, or your usual contact at Moray & Agnew.