MAIB fails in recovery action against property owner and fencing contractor.

In Issue

  • Whether the appellants breached their duty of care
  • The standard of care required of each appellant

The Background

In June 2008, a gudgeon pin detached from a gate post attached to a fence containing cattle on a farming property beside a highway in Tasmania. As a result, cattle escaped onto the highway. A motorist collided with one of the cattle and was catastrophically injured. He later received a very substantial payment from the Motor Accidents Insurance Board (MAIB) pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973 (the Act).

The MAIB brought an action against Mr & Mrs Lester (the Lesters) who were the owners of the property and the cattle, and Circular Head Fencing (CHF), who had installed the fence, for reimbursement of the monies it had paid by way of compensation to the motorist.

The Decision at Trial

The trial judge found that the motorist’s injuries were caused by the negligence of the Lesters and CHF and apportioned liability as to 65% and 35% respectively.

The trial judge found as a fact that the gudgeon pin was loose before the cattle escaped and that it was inadequately installed and was not fit for its purpose. The trial judge found that the Lesters were negligent for not checking that the gudgeon pin was fit for purpose and for not checking that it was securely fastened to the post. CHF was liable for using an unsuitable gudgeon pin and for not advising the Lesters to use a more appropriate means of securing the gate.

The Issues on Appeal

The Lesters and CHF both appealed on the basis that the factual findings did not support the conclusion of negligence

The Decision on Appeal

The Full Court overturned the trial judge’s decision.

The finding of negligence on the part of the Lesters and CHF was based in part on a finding of fact that the gudgeon pin was loose before it dislodged. This finding was not supported by the evidence. In particular, it was not open to the trial judge, without identifying the force which had actually been applied to the gate (an impossible task as there was no direct evidence on what had occurred to cause the gate to open), to reason that the force must have been minimal and the pin was either not correctly installed and/or already loose within the post.

The trial judge also found that the appellants were negligent for using a gudgeon pin which was not fit for its purpose. The Full Court held that although this finding was justified on the expert evidence it was not, of itself, sufficient to support a finding of liability against either appellant because neither was negligent by reference to the relevant standard of care as stipulated in s 11(1) ( c) CLA (Tas).

The Full Court observed that the trial judge gave little or no consideration to the relevant standard of care and, in particular, whether a reasonable person in the position of each appellant ought to have appreciated the inadequacy of a gudgeon pin with recessed thread to secure the gate and whether alternative means of securing the gate should have been investigated.

The Full Court noted that the appellants were not expected to have the same knowledge, training and experience as the expert engineers who gave evidence. The Full Court held that the evidence did not permit a conclusion that a person in the position of either appellant would have realised that the use of a gudgeon pin with recessed thread would be inadequate to prevent the escape of cattle, nor establish that the appellants should have retained expert engineers to advise on the appropriate way to secure the gate. The evidence instead demonstrated that the accepted industry view was that the use of a correctly installed gudgeon pin and chain was appropriate. Accordingly, the appellants’ conduct did not fall below the standard expected of a reasonable person in their positions and the trial judge erred in finding that each appellant was in breach of duty to the motorist.

Although it was not necessary to address causation, the Full Court found that it had not been made out because it was not possible, on the evidence, to determine that the cattle would not have escaped in any event.

Implications for you

The applicable standard of care should not be assessed on the basis of hindsight or expertise in excess of that possessed by the defendant. Rather the standard of care should be assessed by reference to a reasonable person in the position of and with the knowledge and capabilities of the defendant at the relevant time, taking into consideration any applicable industry practices. Evidence must be presented to the court to establish that standard.

Circular Head Fencing Pty Ltd v Motor Accidents Insurance Board [2017] TASFC 6