Lindsay-Field v Three Chimneys Farm Pty. Ltd. [2010] VSC 436


J. Forrest J. delivered judgment on the 29th September, 2010 in Lindsay-Field v Three
Chimneys Farm Pty. Ltd. [2010] VSC 436.

The Plaintiff suffered injury during the course of her employment when she was kicked in the head by a mare at a stud farm when the Plaintiff was undertaking the task of removing the afterbirth from a mare who had just foaled.

The critical issue was whether the employer should have provided an extra person to assist in dealing with the mare and her foal after its birth. The Judge held that a reasonable employer would have been aware that there was a real risk of potentially significant injury to an employee engaged in tying up the afterbirth. The question was what a reasonable employer would have done by way of response to that risk. 

At paragraph 59:-

“First, in determining what is a reasonable response to a risk one must not look backwards. The fact that a foreseeable risk has eventuated, does not bespeak lack of adequate response. The reasonable response must be evaluated in the context of the perceived risk as it existed immediately prior to the subject injury.

Second, it may be that notwithstanding the risk and the availability of remedial measures that an employer acts reasonably by taking no steps. This is because underpinning the exercise is a determination of what is reasonable in all the circumstances, not just the ticking of a number of boxes resulting in a conclusion that the employer has acted reasonably or unreasonably.

Third, the question of the relevance of current industry practice may be of significance in determining whether a response is reasonable or otherwise.”

The Defendant placed considerable reliance upon evidence as to industry practice and argued that, in particular, industry practice was to remove the afterbirth without a second person holding the brood mare. The Judge reviewed the relevant authorities, concluding that industry practice was not of itself decisive: see for example Bank of Montreal v Dominion Greshan Guarantee Co. (1930) AC 659, Rogers v Whitaker (1992) 175 CLR 479 and Hammond v Heath [2010] WASCA 6 as well Hookey v Paterno [2009] 22 VR 362.

The Judge summarised the position as follows:-

(a) the primary rule is that the evidence of industry practice is not determinative – the test remains: what is a reasonable response to the identified risk in all the circumstances;
(b) however, industry practice is relevant in assessing the adequacy of the response of the employer to the perceived risk. In this context, it assists in determining whether the employer,
being aware of the risk and being aware of industry practice, acted reasonably in not responding to the risk;
(c) in determining the adequacy of the employer’s response, it is necessary to pay particular regard to the potential danger posed by the work activity. A risk of minor injury may mean industry practice is an acceptable response; however, the greater the risk of significant injury then the greater the need to consider closely whether industry practice represents a reasonable response to that risk.

The Judge reviewed the evidence ultimately concluding that the Defendant was negligent.
At paragraph 92:-

“There are times when industry practice falls behind the demands of occupational health and safety – this is a classic example. Just because a task has been carried out for decades (or perhaps centuries) in a certain way does not, as the circumstances of this case demonstrate, mean that this is an adequate response to the risk of significant injury. This is particularly so when requiring an employee to deal with unpredictable livestock placed in a stressful situation with the attendant risk of a defensive reaction to any perceived threat ... the failure to have a system in place that provided for a second attendant to be on call and then available ... constituted a breach of duty ...” on the part of the Defendant. 

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