IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT ALICE SPRINGS

BETWEEN:
ALAN JAMES KEELING
Plaintiff
AND:

(tho94018)

COMMONWEALTH OF AUSTRALIA
Defendant

CORAM:	THOMAS J

REASONS FOR JUDGMENT
(Delivered 15 December 1994)

The plaintiff entered into a contract of employment with the defendant in or about the month of December 1985 for a period of twelve months.

The plaintiff was employed as a stock inspector in the Department of Primary Industry, situate on Cocos (Keeling) Island Quarantine Station.

On 11 February 1986 the plaintiff claims he was directed by his senior stock inspector to clip the coat of a Simmental Heifer in a laneway at the station. The plaintiff further claims that while clipping the said heifer in the manner in which he had been directed, he was struck by the hoof of the heifer below his knee on the right hand side of his right leg, thereby suffering personal injuries and loss. The plaintiff claims the injuries were caused by the negligence and/or breach of duty of the defendant, its servants or agents. In his Statement of Claim, the plaintiff gives the following particulars of the way in which the defendant, its servants or agents, were negligent:

"(a) Failing to provide to the Plaintiff a suitable facility for restraining cattle during clipping.

Failing to provide or maintain any or any proper of[sic] safe system of working whilst carrying out the duties of clipping the said cattle.

Failing to provide detailed or any proper information about the temperament of individual cattle and consequently the manner in which they ought to be handled by Stock Inspectors during clipping.

Failing to adequately instruct the plaintiff with respect to the correct manner of clipping the said cattle.

Instructing the Plaintiff to complete the said clipping in the laneway when it was unsafe and dangerous to do so.

Failing to take any or any adequate precautions to ensure the safety of the plaintiff while he was engaged in the clipping of the said cattle.

Exposing the Plaintiff to the risk of injury or damage whilst carrying out the dangerous activity of clipping cattle in a laneway.

Failing to provide suitable or adequate medical facilities for injured employees.

Failing to ensure that information obtained about the temperament and handling qualities of the cattle by a Stock Inspector accompanying the animals from the United States of America was passed to the Plaintiff."

Further, or in the alternative, the said injuries sustained by the plaintiff were due to the defendant's breach of its contractual duty of care to the plaintiff.

Particulars of this are set out in the plaintiff's Statement of Claim:

"The Defendant, its servants or agents were in breach of its contractual duty of care in that contrary to implied terms of the Plaintiff's contract of employment with the Defendant entered into in or about the month of December, 1985 it:-

Failed to provide to the Plaintiff a suitable facility for restraining cattle during clipping.

Failed to provide or maintain any or any proper or safe system of working whilst carrying out the duties of clipping the said cattle.

Failed to provide detailed or any proper information about the temperament  of individual cattle and

consequently the manner in which they ought to be handled by Stock Inspectors during clipping.

Failed to adequately instruct the Plaintiff with respect to the correct manner of clipping the said cattle.

Instructed the Plaintiff to complete the said clipping in the laneway when it was unsafe and dangerous to do so.

Failed to take any or any adequate precautions to ensure the safety of the Plaintiff while he was engaged in the clipping of the said cattle.

Exposed the Plaintiff to the risk of injury or damage whilst carrying out the dangerous activity of clipping cattle in a laneway.

Failed to provide suitable or adequate medical facilities for injured employees.

Failed to ensure that information obtained about the temperament and handling qualities of the cattle by a Stock Inspector accompanying the animals from the United States of America was passed to the Plaintiff."

It is the plaintiff's claim that as a result of the negligence, and/or breach of duty, and/or breach of contractual duty of the defendant, the plaintiff was injured and thereby suffered loss and damage. In his statement of claim the plaintiff particularises these as follows:

"As a consequence of the incident in which he suffered a direct blow to the righ (sic) hand side of his right leg just below the knee the Plaintiff sustained fractures of the tibial plateau of the right leg. As there was no adequate medical facilities available the Plaintiff was conveyed by aircraft to Perth in the State of Western Austraia (sic). He was admitted to Royal Perth Hospital wherein he suffered a pulmonary embolism. He was released from hospital in the middle of April, 1986.

The Plaintiff underwent extensive physiotherapy before being able to return to work in or about the month of September, 1986. He was subsequently readmitted to hospital for the removal of screws from his right leg.

The Plaintiff has, as a consequence of the accident, suffered and continues to suffer from severe pain to his right leg, depression, lethargy, headaches and difficulty in sleeping.

The Plaintiff has become depressed and anxious and has been prescribed anti-depressant medication.

The Plaintiff's employment was terminated by the Defendant prematurely and the Plaintiff has suffered a deterioration of his marital relationship with his wife.

He has continued to receive treatment from his medical advisors. He continues to have severe pain and aching in his right leg, swelling to his right ankle and knee and suffers from the early onset of arthritic changes in his right leg.

The Plaintiff's injuries have adversely affected his earning capacity. He is unable to undertake physical work of a heavy nature, to kneel down for other than short periods, or to squat without causing severe pain to his right leg and knee.

The Plaintiff is unable to enjoy to the same degree his pre-accident social activities of jogging, bush walking, rock climbing or tennis.
The Plaintiff has thereby:-
suffered and continues to suffer pain, inconvenience and discomfort;

suffered and continues to suffer a loss of the enjoyment of the amenities of life;

had voluntarily gratuitous nursing and like services provided to him;

has been left with permanent residual disability including a loss of the full and efficient use of his back;
has suffered a loss in his capacity to earn income;
has	incurred	expense	for	their	treatment	and	will continue to do so."

The defendant denies that it was negligent as alleged by the plaintiff in his Statement of Claim. The defendant denies it is in breach of a duty of care or any breach of duty as alleged by the plaintiff. The defendant does not admit the allegations of injury, treatment, disability, loss and damage alleged in paragraph
8 of the Statement of Claim. Further, or in the alternative, the defendant says that any such injury, loss and damage as the plaintiff may prove was caused by or contributed to by the plaintiff's own negligence.

There is no dispute that the Commonwealth entered into a contract of employment with the plaintiff and owed the plaintiff

a duty of care. The issues in this case are what was the duty of care, what is required to fulfil that duty and has the Commonwealth fulfilled the duty.

The employer's duty of care was expressed in Bankstown Foundry Pty Ltd v Braistina 160 CLR 301 Mason J, Wilson J, Dawson J @ 307-308:

"     This is not the place for an examination of the reasoning
in the earlier decisions of this court. What must be asserted is that the law has not changed. It is as accurate today as it was thirty years ago to say that the duty

"is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury": Hamilton v. Nuroof (W.A.) Pty. Ltd. (1956) 96 CLR 18 at p 25, per Dixon C.J. and Kitto J."

and further at pp 308-309:
"Furthermore, it has long been recognized that what is a reasonable standard of care for an employee's safety is "not a low one": O'Connor v. Commissioner for Government Transport [(1954) 100 CLR 225 at 230]. Whether or not it will be found to have been satisfied is always a question of fact to be determined in the light of the circumstances of each case. It is unhelpful to attempt to arrive at conclusions about what changing standards of reasonable care require merely by comparing the decisions in different cases because no two cases can provide true comparability in circumstances. The Court had occasion to make this point recently in Waugh v. Kippen [(1986) 160 CLR 156], in distinguishing from the case in hand the decisions in Turner v. South Australia [(1982) 56 ALJR 839; 42 ALR 669] and Castro v. Transfield (Qld.) Pty. Ltd. [(1983) 57 ALJR 619; 47 ALR 715].

On the other hand, being a question of fact, it is undoubtedly true, as McHugh J.A. said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer."

At the time he took up his contract of employment the plaintiff was an experienced stock-man. His date of birth is 19 September 1942. At the time he took up this contract he was 43 years of age. In the course of his previous employment Mr Keeling had a great deal of experience in handling cattle. He was well qualified for the job and his duties were well within his capacity. Me Keeling gave evidence he considered himself a capable stockman (transcript p8). Details given by him as to his employment history and experience would support this statement.

EVIDENCE ON THE ISSUE OF LIABILITY

Evidence on the issue of liability has been given by the plaintiff Mr Keeling. The defendant called evidence on the issue of liability from Mr Darryl Graeme Low, Mr William Cornish, Mr Bill James and Mr James Young Haslem.

As at the date of his accident on 11 February 1986, Mr Keeling was employed as a stock inspector by the Department of Primary Industry at Cocos Island.

Evidence of Darryl Graeme Low

Mr Darryl Graeme Low gave evidence that he is at present a farm manager in South Australia and was at the relevant time a stock inspector on Cocos Island, employed by the Department of Primary Industry. Mr Cornish was, as at the date of the accident, the head stock inspector employed by the Department of Primary Industry on Cocos Island. Mr Bill James was a stock inspector employed by the Department of Primary Industry on Cocos Island at the relevant time. Mr Haslem was the veterinary officer in charge of the Cocos Island Animal Quarantine Station.

Mr Darryl Graeme Low gave evidence that there was a crush on the island in which it is safe and easy to clip an animal. The veterinary officer in charge, Mr Haslem, and Mr Cornish the senior stock inspector, informed Mr Keeling that if an animal was being particularly uncooperative it was to be placed in the crush, at

all times, for clipping. [Evidence of Mr Low (transcript p290), Mr Cornish (transcript p311), Mr Haslam (transcript pp153-154). Mr Low was the stock inspector who had gone to North America to be with the animals prior to their coming to Australia. On his return to Cocos Island he provided advice to the other stock inspectors in relation to these animals. In particular, he had told Mr Keeling that the animal, which ultimately kicked him, was a very uncooperative flighty breed of bovine (p285).

On the day of the accident, Mr Low had been working in animal house 2, which is adjacent to animal house 3, where Mr Keeling was working and about 15 yards apart. At about 2.30 pm he noticed Mr Keeling having trouble clipping this particular animal. He went over to give Mr Keeling a hand. Mr Low came up on the left side of the animal to her rib cage and squeezed her against the side of the animal house. Mr Keeling was at the rump, at the left hand side of the animal. Mr Keeling was clipping the rump of the animal, he had finished clipping the flanks and the back. The animal was getting worked up into a state. Mr Keeling was clipping down the rump. Mr Low told Mr Keeling to leave the legs, they didn't matter. The main surface area for heat loss on the animal is the back and the flanks. Mr Low told Mr Keeling to leave the legs, they will look a bit awkward but the hair will fall off before they go to Australia. Mr Keeling responded "No, no, I'll do her" (transcript p288). Mr Low repeatedly told Mr Keeling "don't do the legs, she's getting really worked up". Mr Keeling was standing directly behind the animal. This is a very dangerous position in which to stand should the animal decide to kick out. Mr Low stated he said to Mr Keeling "don't go behind, she'll give you a kick". Mr Low told Mr Keeling, when clipping the rump to stand on the side because an animal can't kick forwards or sideways very well and it is relatively safe to stand at the side of the animal. Mr Low gave the following evidence (transcript p288):
"You told us that you told him to stand beside the animal. Did you give him any warning about not going behind the animal?---Yeah, I said, 'Don't go behind, she'll give you a kick. That's not the way to do it. Do it this other way'."

Mr Low saw Mr Keeling stand directly behind the animal facing the rear of the animal and the next thing he knew the animal kicked out and Mr Keeling went flying back against the other side of the raceway and hit the panel. After he saw Mr Keeling had been injured, Mr Low did not mention the fact that Mr Keeling had not taken Mr Low's advice. Mr Low gave evidence that prior to the accident he had heard Mr Cornish, the chief stock inspector, tell Mr Keeling "if you are having any trouble with the animal clip it in the crush" (transcript p290). Mr Low stated in his opinion the accident occurred because Mr Keeling stood directly behind the animal and was following the wrong procedure. Mr Low stated he showed Mr Keeling how to clip the animal. Mr Low himself did not clip the hind legs of the animals on Cocos Island. Mr Keeling did not follow the safe or correct procedure in clipping the animal.

I am satisfied on the evidence that Mr Keeling was kicked by the heifer when he took up a position behind the animal rather than to follow correct procedure by standing to the side of the animal when clipping. Despite advice being given to him at the time by Mr Low, Mr Keeling chose to clip the legs of the heifer from behind the animal which was obviously a dangerous place to stand, particularly when he knew the animal was distressed. The following evidence was given by Mr Low in respect of clipping the animal without a crush (transcript p307):
"You were about to say whether animals could be clipped safely or not. If correct procedures were followed and then you were cut off, what was it that you said?---If the correct procedures are followed an animal can be clipped safely. They are at rural shows all around Australia without a crush."

I found Mr Low to be a credible witness and I accept the evidence he has given. The evidence given by Mr Low conflicts in a number of material respects with the evidence given by Mr Keeling as to how the accident occurred.

Evidence of Mr Keeling

The evidence given by Mr Keeling is as follows:-

Mr Keeling stated that he was not given any specific information about any of the particular animals in his charge. Mr Keeling states he had been instructed to clip animals that had woolly coats and that it was presumed, because of his experience in being selected for the position, that he could do the job. The purpose of clipping the animals is to reduce the level of heat stress. Mr Keeling stated he spent time observing how stock inspector Jarman clipped animals to ensure that correct procedures were followed. He did observe stock inspector Jarman clip one animal in the pen. Mr Keeling was aware of the existence of the crush (transcript p21). He stated the purpose of the crush was a restraining device for animals, for veterinary inspection, veterinary injections and blood testing (transcript p 21) and other surgical procedures. He was never given any instructions to use the crush for clipping cattle (transcript p 22). Mr Keeling also gave evidence that, in his opinion, it would be dangerous to the animal and possibly the operator to attempt to clip the underbelly or legs of the animal in the crush (transcript p 22). He also stated, he considered it would be impossible because of the construction of the crush, to clip the legs of the animal. He states he was not instructed or supervised in respect of the clipping of the animals. This was the third animal Mr Keeling had clipped that day. It is Mr Keeling's evidence that earlier in the day, Mr Cornish had told him to clip the animal in the covered way because the animal was distressed. The animal broke away in a state of distress, it was caught and tethered by a head saw in the animal house but not in the pen. He attempted to clip the animal but the animal's movement became violent. Chief stock inspector Cornish, told him to take the animal away from the pens and after lunch to clip it in the covered way (transcript p 25). The animal was then either placed back in the pen or restrained adjoining to the pen. After lunch the animal was walked outside animal house 3 and tied to a rail in the covered walk way. Mr Keeling commenced clipping the animal. He asked the Malay assistant, Omal, to move in close to the animal and restrain it so that Mr Keeling could continue hand movements under the belly and leg area (transcript p 26). Mr Jarman, Mr Cornish and Mr Low were not there. When the shears hit the belly and leg area, the animal lashed out with its rear left hind leg and made contact with his right knee. Mr Keeling

states he was bodily thrown approximately 2 metres and hit the ground. Under cross examination, Mr Keeling stated it wouldn't be very sensible to clip an agitated animal (transcript p 77). Mr Keeling denied Mr Low ever discussed this particular animal with him prior to the accident and identified the animal to him as being fractious. Mr Keeling also denied that in the days prior to the date of the accident, he had difficulty in clipping an Angus heifer and that Mr Cornish took Mr Keeling and the animal to the crush and demonstrated how to clip the animal in the crush. Mr Keeling denied that on the day of the accident, he became upset when trying to clip the Simmental heifer. He stated he had no recollection of Mr Haslem speaking to him and telling him to return the animal to the pen and to clip it later. He denied Mr Haslem pointed to the crush on the morning of the day the accident occurred and told him to use the crush for fractious animals, where the animal could be adequately restrained rather than risking injury to himself and the beast. Mr Keeling also denied that on the day of the accident Mr Cornish had found the animal tied to the rail by the halter, that it had fallen over and was hanging by its tether. He denied Mr Cornish cut the animal free and directed Mr Keeling to clip the animal in the crush (transcript p 86). It is Mr Keeling's evidence Mr Cornish told him if the animal continued to give him trouble to clip it in the covered way. On the day of the accident Mr Keeling states he was calm. When he returned from lunch he led the animal from the pen into the covered laneway. He prepared to clip the animal. The animal was displaying signs of distress. Mr Keeling asked the Malaysian assistant, Omal, to come close and put his weight against the animal. Omal would not do this. Mr Keeling did not recollect Mr Low coming across to lean on the animal (transcript p 94). Mr Keeling denied that Mr Low had said to him "don't worry about the legs". Mr Keeling stated had Mr Low done that, he certainly would not have attempted to shear the legs (transcript p 95). He did not recall Mr Low saying words to the effect "leave the animal alone. You have done enough". He did not recall Mr Low warning him about getting behind the animal and stated Mr Low would not need to do that (transcript p 96). Mr Keeling demonstrated where he was in relation to the animal when he was kicked. Mr Keeling gave evidence under cross examination (transcript pp 97-99) that

he was on the left hand side of the heifer, facing the front of the heifer. He was moving in at an angle. He was in front of the back legs. He was half a metre from the animal, attempting to reach the animal by turning towards the animal to get his buttocks against its side, when the animal kicked him.

That concludes my summary of the evidence given by Mr Keeling relevant to the issue of liability.

Having had the opportunity to hear the evidence and observe both persons give evidence, I prefer the evidence given by Mr Low to the evidence given by Mr Keeling. I do not accept the evidence of Mr Keeling that he was kicked when he was on the left hand side of the heifer facing the front of the heifer and in front of the back legs. I prefer the evidence of Mr Low, that at the time he was kicked Mr Keeling was immediately behind the animal, a position which Mr Keeling was well aware was a dangerous place to stand. Where the evidence of Mr Low conflicts with the evidence of Mr Keeling, I accept the evidence of Mr Low and reject the evidence of Mr Keeling. I am satisfied that when the animal kicked Mr Keeling, Mr Keeling was standing behind and facing the rear of the animal. This was a dangerous place to stand, and not in accordance with the correct procedures for clipping animals. I am also  satisfied that Mr Low repeatedly told Mr Keeling he did not need to clip the legs of the animal, not to do any more and not to stand behind the animal. Mr Keeling chose to ignore this advice and continued to attempt to clip the animal, which was completely unnecessary, and from behind the animal, which was not in accordance with the correct procedures and dangerous. Mr Keeling as a person experienced in handling cattle was well aware to stand behind the animal was dangerous.

Evidence of Mr William Cornish

Mr William Cornish has stated in his evidence that at the present time he is a self employed automotive engineer in Adelaide. At the relevant time he was employed by the Department of Primary Industry as a head stock inspector on Cocos (Keeling) Island. Mr

Cornish gave evidence as to an incident that occurred, either the day before or within a few days before the accident. Mr Keeling was having difficulty clipping an Angus heifer in the animal house laneway. The animal was tied up in a most unprofessional way. Mr Cornish suggested to Mr Keeling that animals that were temperamental should be taken to the cattle head crush, where it could be restrained. He then, with Mr Keeling, took the animal to the cattle crush and between them they clipped the animal and subsequently returned it to its pen. Mr Keeling was told by Mr Cornish that stud animals could be clipped in the laneway by being held by a halter. He was also told, if there was a problem with them, if they were temperamental or not halter trained, then the crush was to be used to restrain them to avoid injury to either party (transcript p 311). Mr Cornish identified Exhibit P5 as being photographs of the cattle crush on the island at the relevant time. Mr Cornish had taken Mr Keeling to the crush to demonstrate how the crush could be used. I accept this evidence given by Mr Cornish and find that such an incident occurred with the Angus heifer as he has described. I prefer the evidence of Mr Cornish to the evidence of Mr Keeling that Mr Cornish had never demonstrated how the crush was to be used. Mr Keeling denied that he had even been involved in an incident within a few days prior to his accident when he had trouble with the Angus heifer. I reject the evidence given by Mr Keeling and where his evidence conflicts with the evidence of Mr Cornish, I prefer the evidence of Mr Cornish.

Mr Cornish gave further evidence that on the day of the accident, 10.30 - 11.00 o'clock or thereabouts, certainly before lunch, he again had cause to speak to Mr Keeling. Mr Cornish gave the following evidence (transcript pp 311-312):

"What on that occasion caused you to talk to Mr Keeling? What did you see?---Mr Keeling had a Simmental heifer tied to the animal house laneway, a heifer that was not halter trained. It was tied to the top rail on the gate, which is about 1 1/2 metres. He was trying to clip the animal and it became startled and stumbled and fell. And because it had been tied too high and because it had been tied - not been tied with a slip knot, the rope pulled tight and the animal hung by its neck. I heard the commotion and saw what happened and came across and cut the rope with a knife. The beast then escaped from both of us and, as I recall, ran about. We retrieved it and put it

back in its pen and I then ordered Alan to take it to the crush to finish clipping it.

Did you order him to take it to the crush directly then or at some later time, or was not time mentioned?---No, the - as I recall, the beast was upset and in no condition to be worked on again immediately, and the clipping was delayed until after lunch.

So you told him to take the animal to the crush, was there any discussion between you as to the previous incident the few days before?---I don't recall the conversation, no.

Okay. So in the morning of the accident you have come across Mr Keeling with an upset animal and ordered him to use the crush. Did you then, after the animal was returned to its pen, did you then remain in the vicinity or did you go off doing other things?---I had quarantined procedures to perform at the airport after lunch."

I accept the evidence of Mr Cornish that, on the morning of the date of the accident, he gave a specific order to Mr Keeling to take the Simmental heifer - which subsequently kicked Mr Keeling
-	to the crush after lunch to finish clipping it.

I reject the evidence given by Mr Keeling that Mr Cornish had told him to clip the animal in the covered way. I found Mr Cornish to be a reliable and credible witness whose evidence I accept.

Mr Cornish stated in cross examination that bovines are potentially dangerous, but did not agree it was potentially dangerous to clip any animal other than in the crush (transcript pp330-331). It was appropriate to clip temperamental animals in the crush. Under cross examination, Mr Cornish gave this evidence (transcript p332):

"Having a procedure to put all animals in the crush would have eliminated any danger, wouldn't it?---No.

It would have eliminated any danger in relation to clipping the animals?---The actual process of clipping, yes."

Mr Cornish gave evidence under cross examination (transcript pp342-343), that a direction had been given to Mr Keeling and other members of staff, that clipping the legs of animals was not important. If the beast was temperamental and there was any trouble

experienced, it was not necessary to clip the legs. I accept this evidence given by Mr Cornish. I am satisfied that at the time he attempted to clip the hind legs of the Simmental heifer on the date of the accident, Mr Keeling had been previously directed by Mr Cornish, the chief stock inspector, that if an animal was being temperamental it was not necessary to clip the legs. I am satisfied Mr Keeling was again given this advice by Mr Low, another stock inspector, at the time he was attempting to clip the animal which kicked him. I am satisfied Mr Keeling had been made well aware that when an animal was being temperamental, it was not necessary to clip the legs. He chose to do so from a dangerous position directly behind the animal.

Evidence of Mr Bill Jarman

Mr Bill Jarman gave evidence that he is at present the quarantine officer in charge of the Torrens Island Quarantine Station. In 1986 he was employed by the Department of Primary Industry on Cocos Island as a stock inspector. Mr Jarman stated he disagreed with the evidence given by Mr Keeling, that he, Mr Jarman, had clipped an animal in a pen. It is Mr Jarman's evidence that he would not clip an animal in a pen and has not in fact ever done so. I accept the evidence of Mr Jarman on this aspect. Mr Jarman stated he has clipped between 700 to 1000 animals, on rare occasions he has used the crush. Mr Jarman stated he has suffered minor bruises and abrasions when clipping animals outside of the crush. He only uses a crush when an animal is a "fizzy animal" and does not settle down. In this situation, there is less chance of injury by taking the animal to the crush. Mr Jarman stated he did not clip the legs of animals on Cocos Island because the only purpose in clipping the legs was for show purposes and this was not a reason to clip legs on Cocos Island. Under cross examination Mr Jarman agreed all bovines are potentially dangerous. They are unpredictable and it is a question of judgment to assess them. Mr Jarman stated you should never stand directly behind an animal. Mr Jarman did not witness the accident. I accept the evidence given by Mr Jarman. I found Mr Jarman to be a truthful and credible witness.

Evidence of Mr James Young Haslem

James Young Haslem gave evidence that he is the veterinary counsellor for Australia based at the Australian Embassy in Washington, D.C. At the relevant time he was the veterinary officer in charge of the Cocos Island Animal Quarantine Station. At about 11.30, quarter to twelve, on the date of the accident, being 11 February 1986, Mr Haslem visited the yards.  Three stock inspectors, Mr Jarman, Mr Keeling and Mr Low were clipping animals. Mr Haslem became aware the animal Mr Keeling was attempting to clip was becoming somewhat fractious. The animal had a head halter and was tied to the upper rail of railings on the side of a laneway. Mr Haslem spoke to Mr Keeling and said "put the animal back in its pen for now. Have lunch and when you come back put it in the crush so that its properly constrained and there's no risk of injury to either, you know, the man or the animal" (transcript p153-154). Mr Keeling also appeared at the time somewhat frustrated. Mr Keeling responded to Mr Haslem's suggestion by saying "okay". The animal was put back in its pen. Mr Haslem had no reason to believe there was any specific objection to his suggestion that the animal be taken to the crush (transcript p154). The next time Mr Haslem saw Mr Keeling was after the accident when Mr Keeling was being helped through the showers. Under cross examination, Mr Haslem gave evidence that the quarantine station had two systems for the plaintiff to carry out the clipping of the coats of Simmental cattle. One was, the cattle could be clipped in the covered passageway with the beast haltered and tethered to the rail. The second system was if the beast was temperamental, restless, uneasy or causing difficulty, it was to be placed in the crush. There was no difficulty clipping animals in a crush. It was not necessary when clipping animals for them all to be constrained, some were happy to stand quietly and be clipped. Some get a bit fractious and it is appropriate to put them in the crush. Mr Haslem agreed that had it been considered appropriate, there would have been no difficulty logistically to direct that all animals be clipped in the crush. Mr Haslem's evidence is that he did not consider he was giving a specific direction to Mr Keeling to clip the animal

in the crush, but rather was making a suggestion. He did not consider this to be a matter to take disciplinary action against Mr Keeling. Mr Haslem stated he had not issued a specific direction that hind legs of animals were not to be clipped. However, clipping legs as a contribution to alleviating heat stress would not have achieved much. It is purely a cosmetic thing. I found Mr Haslem to be a credible witness and I accept him as a witness of truth. Where the evidence of Mr Haslem conflicts with the evidence given by Mr Keeling, I accept the evidence of Mr Haslem and reject the evidence of Mr Keeling.

This concludes my summary of the evidence given by Mr Haslem.

As a witness I found Mr Keeling's evidence most unsatisfactory and I did not find him to be either a credible or reliable witness. Mr Keeling gave evidence that particularly after his return to work at Cocos Island in September 1986, he had considerable communication difficulties with Mr Cornish and found Mr Cornish very difficult to work with. Mr Keeling gave evidence to the effect that Mr Cornish was a know all, arrogant, inflexible, was an alcoholic and had unresolved problems arising from Vietnam. Mr Keeling's assessment of Mr Cornish is not supported by any of the other witnesses in this case. Mr Haslem gave evidence in respect of Mr Cornish as follows (transcript p158):

"Could you tell Her Honour how you found him as an officer and a man?---He is a man for whom I have the highest regard, both as a person and as a professional who tackles his job with the greatest commitment and dedication. It was a pleasure and a privilege to work with him.

It has been suggested that he wasn't a man who could get on with his fellow workers, in particular his underlings. What would you say about that?---I would say it was nonsense, if I can use such a word.

It has also been suggested that he was arrogant and a know-all. What would you say about that?---Well, I would merely repeat the previous statement. I say he is a man for whom I have the highest regard."

Mr Low gave evidence (transcript pp291-292) that Mr Cornish was his immediate superior. Mr Low found Mr Cornish easy to get

along with, very competent and very serious about his job. Mr Low gave evidence that Mr Cornish did not have a problem with alcohol, had not mentioned Vietnam, was neither a know-all or arrogant. Mr Jarman stated (transcript p 356) that Mr Cornish was quite a fair person to work under. Cocos was a team-work orientated  work-force with Mr Cornish as the supervisor. Mr Cornish would instruct them if anything out of the ordinary needed to be done. They would have round table discussions about carrying out various duties. Mr Jarman did not find Mr Cornish arrogant, overbearing or a know-all. Mr Jarman was not aware of any alcohol problems Mr Cornish may have had or any problems arising out of Vietnam. I accept the evidence of Mr Haslem, Mr Low and Mr Jarman and reject the assessment of Mr Cornish arrived at by Mr Keeling.

During the course of cross-examination, Mr Riley elicited evidence from Mr Keeling that on previous occasions Mr Keeling had made a false statement, or, at least was hiding the truth. This included failure to disclose employment with Woolworths whilst receiving Comcare payments (transcript p 64), failure to disclose employment whilst receiving unemployment benefits (transcript  p 66), failure to disclose to the taxation office his earnings with Mt Bundy Station in 1985 (transcript pp234-235) and the false declaration in the taxation returns that he had earned no income in that period (transcript p 234). Mr Keeling, when cross examined on these issues, gave evidence to the effect he was in difficult financial circumstances and had no alternative.

I do not accept Mr Keeling's evidence (transcript pp 45 and
46) that following the accident he was not permitted to return to the Island and was only allowed to return after the intervention of the Administrator. Mr Keeling conceded in cross examination, that he was offered a flight to the Island on 28 April 1987 and on 12 May 1987 (transcript pp 244 and 245) and on each occasion he declined.

Mr Keeling gave the following evidence under cross-examination (transcript p244):

"Like refreshing your memory in relation to the tax matter?---Well, I don't know what the relevance is - the fact that it's 5 or 6 years have gone by - a very nasty time. I have tried to put it all behind me - I don't like to remember unpleasant things.

So that's your excuse for not telling the truth, that you don't like to remember unpleasant things?---I think anybody that has been through what I have been through - you put the most unpleasant things out of your mind. It's a defence mechanism."

Mr Keeling, when it emerged under cross examination, that he had seen the counselling notes (Exhibit D3) many years before, which contradicted his previous evidence that he was unaware of such a document (transcript pp 105, 106 and 107), he explained this by stating he had blocked this out of his mind because it was distressing and he wanted to get on with the rest of his life and put the bad years behind him.

My most important reasons for rejecting the evidence of Mr Keeling is because his evidence is in conflict with evidence given by the four witnesses called for the defendant, which I have already summarised. The basis on which I reach my conclusion as to Mr Keeling's lack of credibility and his unreliability is the number of occasions which I have already detailed where his evidence completely contradicted the evidence of Mr Haslem, Mr Cornish, Mr Low and Mr Jarman on some very material issues. I considered the four witnesses called for the defence gave very credible evidence. Where Mr Keeling's evidence is in conflict with the evidence of these four persons, I reject the evidence given by Mr Keeling.  I formed the opinion where there was a conflict, that Mr Keeling's evidence was not truthful or reliable. It may be because he had blocked some matters out of his mind as being distressful and was now reconstructing the events surrounding the accident.

On my finding of fact, Mr Low had previously informed Mr Keeling about the unpredictable and flighty nature of the heifer which Mr Keeling was clipping and which subsequently kicked him. At the time he started clipping the Simmental heifer, Mr Keeling knew the animal to be in a stressed condition. Mr Keeling had been advised by his superior, ie Mr Cornish, and again reminded by his co-worker

Mr Low, that it was not necessary to clip the legs of the animal. Mr Keeling had been fully instructed by Mr Cornish on the use of the crush. Within a few days prior to the accident Mr Cornish had demonstrated the use of the crush and he, together with Mr Keeling, had clipped an Angus heifer in the crush which had previously been giving Mr Keeling some trouble.

On the morning of the day of the accident, Mr Cornish had observed Mr Keeling was having difficulty clipping the Simmental heifer which was in a distressed state. Mr Cornish had specifically instructed Mr Keeling to return the heifer to the pen until after lunch. Mr Cornish had specifically instructed Mr Keeling that after lunch he was to take the Simmental heifer from the pen to the crusher and clip her in the crusher. Mr Haslem also observed the  difficulties Mr Keeling experienced in clipping the Simmental heifer during the morning prior to the accident. Mr Haslem suggested that Mr Keeling take the animal to the crush after lunch. Mr Keeling deliberately disobeyed the instruction given by Mr Cornish, who was his immediate superior, and ignored the advice given by Mr Haslem. Mr Keeling did not take the Simmental heifer to the crush after lunch. Instead he removed the animal from the pen and tied it to the rail outside the pen and commenced clipping. The animal was in a state of distress, as it would appear was Mr Keeling himself. Mr Low, who was working in the pen nearby, observed the difficulties and came to Mr Keeling's assistance. Mr Low, a fellow stock  inspector, advised Mr Keeling it was not necessary to clip the animal's legs. Mr Low specifically warned Mr Keeling about standing behind the animal and suggested Mr Keeling stand to the side of the animal where he would be safe. Mr Keeling continued to clip the animal's legs. Mr Keeling took up a position immediately behind the animal and facing the rear of the heifer. Mr Keeling was in this position when the Simmental heifer kicked out striking Mr Keeling in the knee. Mr Keeling was well aware it was dangerous to stand behind the animal in this way.

I am satisfied on the evidence that the defendant/employer had provided a safe system of work. The heifer could be clipped outside the pen in accordance with normal procedure which was safe,

provided the person clipping stood to the side of the animal. The employer had provided a crush where animals that were in a state of distress or causing difficulty could be clipped with ease and in safety. Mr Keeling acknowledged that he had been trained to recognise a distressed animal and to be careful of it (transcript p92).

Mr Keeling gave evidence that in his opinion it was not appropriate to use the crush and he decided not to do so (transcript pp277-278). This was in disobedience to the direction given earlier that day by Mr Cornish to take the animal to the crush to clip it. Mr Keeling gave evidence he was aware of the existence of the crush and how it operated (transcript p78).

The employer has provided a crush where stressed animals could be clipped. Mr Keeling had been shown how to clip animals in the crush and given specific directions by Mr Cornish to take this particular animal to the crush.

I am satisfied the employer had fulfilled its duty of care to the plaintiff.

SUBMISSIONS BY COUNSEL FOR THE PLAINTIFF

It is the submission of counsel for the plaintiff, that all bovines are potentially dangerous and this was known to the defendant. The use of the crush on all occasions would totally eliminate the risk of injury. The system of work was that the defendant left it to the discretion of new employees when to use the crush. This was contrary to the defendant's legal obligation. There was an alternate system of clipping animals that was entirely safe i.e. place them in the crush. The defendant is liable in damages for negligence because a safe system of work required a direction that the "crush" was to be used as the exclusive method for performing the subject work. It also called for the taking of reasonable steps to enforce the direction (Bankstown Foundry Pty Ltd v Braistina 160 CLR 301 @ 304). Once it is accepted that such use would eliminate the risk of injury, it necessarily follows

that a prudent employer exercising reasonable care would require that it be used for clipping (Bankstown Foundry Pty Ltd v Braistina (supra) @ 308-310).

I do not disagree with the submission of counsel for the plaintiff on the law. However, I consider the facts as I have found in this matter are distinguishable from Bankstown Foundry Pty Ltd v Braistina (supra). I am satisfied the employer did provide a safe procedure for the clipping of the animals and had taken steps to ensure a reasonable standard of care for the employee's safety. I am not persuaded that it would be reasonable to make a direction that every animal be clipped in the crush. However, even if I am wrong on this aspect, Mr Keeling was clearly given a direction by his superior to clip this particular animal in the crush and he disobeyed such direction. Whether or not Mr Keeling was to place this particular animal in the crush was not left to his discretion. Mr Keeling failed to comply with an order to clip the animal in the crush. In particular, I found the plaintiff was aware he was not required to clip the legs of the animal and was reminded of that by Mr Low at the time he attempted to clip the animal's legs. The plaintiff had disobeyed a direction of the chief stock inspector, Mr Cornish, to take this particular animal to the crush. The direction given by Mr Cornish was on the morning of the day the accident occurred and related to this particular animal. The plaintiff knew how the crush could be utilised. He was an experienced stock inspector and trained in the management of animals. In addition, Mr Cornish had demonstrated the use of the crush within a few days prior to the day of the accident. The day Mr Cornish demonstrated the use of the crush to Mr Keeling was on the day Mr Keeling was having difficulties with an Angus heifer. It was a safe procedure to clip the animal standing to one side of the animal. Mr Keeling, as an experienced stock inspector, knew the dangers of standing directly behind the animal. Despite his own knowledge of the danger and the additional warning being given by Mr Low, Mr Keeling stood directly behind the Simmental heifer and attempted to clip its hind legs.

Where a worker has acted contrary to immediate instructions "in a conscious or foolhardy defiance of realised danger", the employer will not be liable, the worker is the author of his own misfortune (Seeley v Gray & Ors (1987) 48 SASR 130 at 147).

I accept the argument of counsel for the plaintiff that there is plainly a foreseeable risk of injury when clipping an animal. However, I am satisfied the defendant foresaw the risk and took all reasonable steps to ensure the safety of Mr Keeling.

On those findings, the plaintiff has failed to satisfy me that the defendant breached a duty of care owed to the plaintiff.

Counsel for the plaintiff submits the documentary evidence is absolutely inconsistent with the oral evidence. The first documentary mention of the allegation that Mr Keeling disobeyed an order of Mr Cornish on the date of the accident, is not made until 11 March 1987 (Exhibit D8). This letter is a reply written to Mr Haslem in response to an official complaint lodged by Mr Keeling against Mr Cornish on 6 March 1987 (Exhibit D7). The letter from Mr Cornish (Exhibit D8) details a great many instances when he had cause to complain about the actions of Mr Keeling during the period of Mr Keeling's employment. It was a letter prompted by an official letter of complaint from Mr Keeling on 6 March 1987 (Exhibit D7). Submissions were also made by counsel for the plaintiff to the effect that there was a statutory obligation pursuant to s61 of the Public Service Act, see also s56. No such disciplinary action was ever taken. It is the submission of counsel for the plaintiff, that failure to document the disobedience of a direction at the time and to subsequently take disciplinary action, indicates the incident did not occur in this way and no such direction was given.

I do not place this interpretation upon the lack of documentary record of Mr Keeling's disobedience of an order given by Mr Cornish on 16 February 1986 until 11 March 1987.

I consider the explanation given by Mr Haslem and Mr Cornish on this aspect, to be extremely credible. Mr Haslem gave the

following evidence on this aspect in cross examination (transcript p162):

"As the veterinary officer in charge on Cocos Keeling it is a serious matter, is it not, if a direct instruction is disobeyed?---I think that would apply for any workplace.

And in fact as the senior officer, there was a statutory requirement, was there not, for you to lay charges if there had been direct disobedience of an order?---I think how any disciplinary action would be taken in the rather rarefied atmosphere of Cocos Island would have been something for my personal judgment.

In your personal judgment, what kind of action would have required disciplinary proceedings?---I would have to be faced with a particular situation to give an answer to that. If the inference is that Mr Keeling was instructed to use the crush; failed to do so and that I should have brought charges for disobedience, my view would have been that it was singularly inappropriate to do something like that when a man has an injury which has required his evacuation from the island, and his hospitalisation."

Mr Haslem gave further evidence on this aspect under cross examination (transcript pp 170-172). Mr Cornish gave evidence on this aspect also in cross examination (transcript pp 347-348):

"It was only when Mr Keeling made his complaint on 6 March 1987 that you raised it?---That's correct.

I am going to suggest to you that it was invented at that time, Mr Cornish?---No. I said no.

There is no explanation, Mr Cornish, is there, as to why this matter had not been raised before?---There is an explanation, if you will allow me.

Yes, Mr Cornish, give me the explanation?---Mr Keeling was injured, we all thought rather seriously on the day of the accident. The fact that he had gone out to have treatment, we felt it inappropriate to persecute - so to speak - an individual who had already suffered an injury. I was not aware that he was returning because 6 months went by I would - I was under the assumption that a broken leg was something like
8 weeks to, you know, perhaps 10 or 12 weeks away. But it was 6 months later and we didn't find out until just before he returned that he was actually returning.

But it was a serious matter that you had an obligation to inform your employer about?---I thought that the individual wasn't returning, so the incident was irrelevant.

Well, I suggest to you, Mr Cornish, that that is not true because you were aware of the time that it was a serious matter and it should be raised and advised to your superiors and you failed to do so, didn't you?---What I said was true, that it was irrelevant at the time.

But it wasn't irrelevant immediately after the accident, was it?---As I said, we were not in the business of persecuting individuals.

It was a safety issue, Mr Cornish, it was a safety issue?---In my opinion it wasn't a safety issue.
Somebody was injured?---That's correct.
Doesn't that make it a safety issue?---It makes it a question of competence.
It makes it a question of safety, Mr Cornish, doesn't it?---No."

If there was a breach of s61 of the Public Service Act then so be it. I consider the explanations given by Mr Haslem and Mr Cornish as to why no action was taken at the time, to either document or take disciplinary actions against Mr Keeling, to be consistent with the reasonable men they both appeared to be and entirely credible. Mr Keeling was the only person to suffer as the result of the accident. He was the author of his own injury. There was no safety issue that needed to be addressed. Disciplinary action did seem singularly inappropriate in view of the serious injury Mr Keeling sustained. I accept the submission of Mr Cornish that he did not consider it relevant at the time of the accident to document the fact that Mr Keeling had disobeyed his direction.

There has, during the course of the hearing, been a considerable amount of evidence as to the perceived conduct and aptitude of the plaintiff for the job he had been employed to do. I do not consider it necessary to the real issues in this case to canvas all of this evidence and to make detailed findings. Suffice it to say, that I accept the evidence of Mr Haslem and Mr Cornish that Mr Keeling was an unsatisfactory employee. I accept the purpose of the report on the discussion/counselling session on 29 October 1986 (Exhibit D3), the counselling report dated 27 March 1987 (Exhibit P16), the supervisor's report by Mr Haslem dated 20 March 1987 (Exhibit D4) and the referees report of Mr Haslem dated 17 March 1987 (Exhibit

P17), were all documents brought into existence after Mr Keeling returned to Cocos Island to resume employment following his injury in February 1986. These reports substantially deal with Mr Keeling's performance as an employee after the accident. I accept it was not relevant to the purpose of those reports to canvas the reasons for the accident in February 1986. Similarly, the monthly reports prepared by Mr Haslem, February 1986 to April 1987 (Exhibit P15), made no reference to the reasons for the accident in February 1986. These reports are brief factual statements which were obviously a summary of what was happening on Cocos Island. The fact of the injury to Mr Keeling on 11 February 1986 is reported. I accept it was not relevant in these reports to go into greater detail.

Counsel for the plaintiff submits that it is inexplicable that if there were such major problems with Mr Keeling, his employers did not just let him go when his contract expired in December 1986 (Exhibit D1). No doubt there is an explanation to which this court is not privy. This does not affect my finding that, I accept the truth of the reports prepared by Mr Haslem and Mr Cornish referred to above. I also accept the oral evidence of both Mr Haslem and Mr Cornish given to this court as to the unsatisfactory performance of Mr Keeling as an employee.

Counsel for the plaintiff also points to other documentary evidence. The injury report dated 12 February 1986 (Exhibit P13), statement by witness to the accident, Mr Low 12 February 1986 (Exhibit P10), report by immediate supervisor dated 25 March 1986 (Exhibit P14). Each of these reports are documents providing fairly limited space for completion of answers to certain questions. Each of them is a brief statement by the person signing the report to the effect that Mr Keeling was injured when an animal kicked him in the right knee. They are an accurate statement in a limited sense and obviously do not give the complete background or causes of the accident.

I do not accept the submission of counsel for the plaintiff that this supports a finding that the accident did not occur in

the way described by witnesses called to give oral evidence for the defence. Neither do I accept the submission that the absence of a more detailed written report is evidence that the events did not occur.

I am fully aware as to the state of the documentary evidence tendered in these proceedings and the absence of a report prepared at the time detailing how this accident occurred. I nevertheless accept the oral evidence given by the four witnesses called for the defence and found them each to be honest and straightforward witnesses whose testimony I accept.

The plaintiff has failed to satisfy me that the defendant was negligent or that the accident was due to the defendant's breach of duty and/or breach of a contractual duty of care to the plaintiff.

Accordingly, I enter judgment for the defendant on the plaintiff's claim.

The parties have liberty to apply on the question of costs.