Kevin Geoffrey Hall v Mj Sherrin Pty Limited; the Australian Capital Territory Electricity Authority; Richard Bowning Ormsby Martin and Josephine Ormsby Martin [1986] ACTSC 80 (5 September 1986)

SUPREME COURT OF THE ACT

KEVIN GEOFFREY HALL v. MJ SHERRIN PTY. LIMITED; THE AUSTRALIAN CAPITAL
TERRITORY ELECTRICITY AUTHORITY; RICHARD BOWNING ORMSBY MARTIN and JOSEPHINE
ORMSBY MARTIN
S.C. No. 1794 of 1982
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Practice and Procedure - Application for leave to join occupiers as defendants - Claim that they had negligently allowed branches of trees to grow dangerously near to power lines - Electricity Authority alleged to have given notice requiring remedial action - Plaintiff, a tree surgeon, employed by sub-contract or engaged by Authority to remove branches - Whether facts alleged disclose negligence and duty of care to plaintiff.

General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125

Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562

Hackshaw v. Shaw [1984] HCA 84; (1985) 155 CLR 614

Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274

The Council of the Shire of Sutherland v. Heyman [1985] HCA 41; (1984) 59 ALJR 564

Papatonakis v. Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7.

Merrington v. Ironbridge Metal Works, Ltd. (1952) 2 All ER 1101.

Salmon v. Seafarers Restaurants Ltd. (1983) 1 WLR 1264.

HEARING

CANBERRA
5:9:1986

ORDER

THE COURT ORDERS THAT the appeal be dismissed.

DECISION

This is an appeal from a decision of the Registrar dismissing an application for orders that the plaintiff have leave to add Richard Bowning Ormsby Martin and Josephine Ormsby Martin as third defendants to the action without service of the writ and to amend the statement of claim to the form annexed to the notice of motion. The proposed third defendants are already third parties described in the title of the action as "Third Party". I propose so to describe them. The relevant parts of the statement of claim in the form proposed by the plaintiff are as follows:-

"2.B The thirdnamed defendants were at all

material times the owners of the whole
of the land comprised in Certificate of
Title Volume 24 Folio 2383 known as 6
Hackett Gardens, Turner, Australian
Capital Territory.

3. At all material times the plaintiff was
employed by the firstnamed defendant as
a Tree Surgeon and was required in the
course of his duties to operate on and
from a Travel Tower also known as a
Cherry Picker to clear branches of trees
from power lines.

4. On or about 7th April 1981 the plaintiff
was performing his duties as required by
the firstnamed defendant at or near 6
Hackett Gardens, Turner in the
Australian Capital Territory when he
came into contact with live electricity
wires and was electrocuted and thereby
sustained serious and permanent injury
loss and damage.

. . .

5. The plaintiff's said injuries loss and
damage were occasioned by the negligence
of the firstnamed defendant and/or the
secondnamed defendant and/or the
thirdnamed defendant.

. . .

PARTICULARS OF NEGLIGENCE AS AGAINST
THIRD NAMED DEFENDANTS

(i) Failure to maintain and control a tree
or trees growing in the vicinity of
power lines at or near 6 - 8 Hackett
Gardens, Turner in the Australian
Capital Territory.

(ii) Failure to comply with the notice given
by the Australian Capital Territory
Electricity Authority pursuant to the
Electricity Ordinance 1971 on or about
2.2.1981 or 3.2.1981."

2. Section 33(1) of the Electricity Ordinance 1971 (the Ordinance) provides that -

"Where any tree, shrub or other natural
growth growing on a parcel of land is
interfering or may interfere with a wire,
cable or other apparatus by which electricity
is transmitted, the Authority may, by notice
in writing under the hand of the Chairman, be
served on the owner of the parcel of land
and, if the owner of the parcel of land is
not the occupier of the parcel of land, on
the occupier of the parcel of land, on which
the tree, shrub or natural growth is growing,
require him or them to fell, lop, prune or
trim the tree, shrub or other natural growth
within such period, not being less than seven
days, as is specified in the notice."

3. As at 7 April 1981 the relevant part of s. 33(2B) of the Ordinance read:-

"If the requirements of the notice under
sub-section (1) of this Section . . . are not
complied with within the period within which
the person on whom the notice is served is
required to comply with the notice, the
Authority may, by its employees, enter upon
the parcel of land and fell, lop, prune or
trim the trees, shrubs or other natural
growth."

4. By s. 2 of the Electricity (Amendment) Ordinance 1982, s. 33(2B) was amended by the omission therefrom of the words "the Authority may, by its employees," and the substitution therefor of the words "a person authorised by the Authority for the purposes of this section may".

5. The application for leave was contested before the Registrar, the notice of motion and supporting affidavits having been served upon the solicitors for the third party.

6. During the course of the hearing before me the plaintiff was given leave to amend the form of the proposed statement of claim annexed to his notice of motion by the addition of the words "and occupiers" immediately after the word "owners" appearing in paragraph 2.B.

7. It was the first defendant who joined the owners of the land as the third party, alleging that the plaintiff's injuries, loss and damage were caused by the third party's negligence. Particulars of their alleged negligence were given as follows:-

"(a) Failure to lop, prune or trim a plum
tree in the vicinity of power lines near
the boundary of premises numbered 6 and
8 Hackett Gardens, Turner.

(b) Failure to comply with a notice given by
the Australian Capital Territory
Electricity Authority pursuant to the
Electricity Ordinance 1971."

8. It appears that before the learned Registrar the application was dealt with as though it were an application under 0.29, r. 4 to strike out that part of the proposed statement of claim alleging negligence against the third party on the ground that it disclosed no reasonable cause of action. That was a sensible, time saving and cost saving procedure.

9. The learned Registrar referred first to the test to be applied by the Court when considering an application to strike out a pleading for failure to disclose a cause of action. He referred to the test enunciated by Barwick CJ in General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125 at p 129. The test is well known. A plaintiff is not to be denied access to the Court unless his lack of a cause of action is clearly demonstrated.

10. He then dealt with a submission made on behalf of the plaintiff that his proposed action against the third party was not based on occupier's liability but was simply an allegation that the third party owed a duty of care to the plaintiff. It was foreseeable, so the submission went, that, if the third party did not properly control the trees growing on their land to ensure that they did not grow close enough to the power lines to become a hazard, the person who eventually came to clear away any branches creating the hazard might be injured while doing so. The third party's failure to ensure that the branches did not become a hazard and to comply with a notice from the firstnamed defendant requiring them to deal with the encroaching branches rendered them liable to the plaintiff in negligence because it was as a result of their inaction that the plaintiff was required to remove the hazardous branches and was injured in the process.

11. One would have thought that matters such as these would have been pleaded as facts in the statement of claim to link the alleged acts of negligence with the damage allegedly occasioned the plaintiff. Order 23, r. 4 of the Rules of Court and see, for example, Atkin's Court Forms, 2nd edn., Vol. 29, 1985 issue, Precedents 33 and 37.

12. Before me counsel for the plaintiff adopted the same line of argument. His argument may be summarised, using generally his own words, as follows:-

"If an occupier of property allows trees and
shrubs to grow into the power line and then
ignores notice to do something about it, it
is foreseeable that the Authority would be
obliged to authorise a person to come onto
the land and carry out the work. There would
then be a foreseeable risk of injury to the
person so authorised, a risk which could be
categorized as a real rather than a fanciful
risk and that being the case an action lay."

He referred to Turner v. The State of South Australia (1982) 56 ALJR 839.

13. Although, as I have indicated, the case sought to be made against the third party by the plaintiff is, in my opinion, as a matter of pleading, defective, I am prepared to assume that the plaintiff by his proposed statement of claim is alleging sufficiently that -

(a) the third party failed to maintain and control a
tree or trees growing in the vicinity of power
lines at or near 6-8 Hackett Gardens, Turner so as
to prevent them from coming into contact with or
dangerously near the power lines in question;

(b) there was a failure to comply with a notice given
by the A.C.T. Electricity Authority pursuant to
the Electricity Ordinance 1971 (in its then form)
on or about 2 or 3 February 1981;

(c) the notice gave warning that if no or inadequate
steps were taken to abate the encroachment of the
trees into an area where they might make contact
with or be dangerously close to the power line the
Authority by its employees might enter upon the
land and carry out the necessary abatement;

(d) the plaintiff went upon the third party's land
following a failure by the third party to comply
with the notice;

(e) the plaintiff was lawfully on the land or at least
might be expected to be there in due course under
a claim of right for the purpose of dealing with
the trees and may be treated as though he were an
employee of the Authority;

(f) accordingly the plaintiff was a person in respect
of whom the third party had a duty of care so as
to satisfy the first requirement of Lord Atkins'
statement of the "neighbour principle" in Donoghue
v. Stevenson [1931] UKHL 3; (1932) AC 562 at p 580 or,
alternatively,

(g) the third party as occupier owed the plaintiff as
invitee (or his equivalent) a general duty of care
because of the mere relationship of occupier and
invitee. (This I assume on the basis that the
plaintiff's position when he entered the third
party's land may be taken to be equivalent to that
of an invitee. I make this assumption purely for
the purposes of this application, expressing no
opinion as to whether in fact it may or not have
been the case.) Hackshaw v. Shaw [1984] HCA 84; (1985) 155
CLR 614 at p 663, per Deane J.

14. It seems to me that whichever of the two alternatives be adopted there is little if any difference between the duty of care applicable in the circumstances. See the discussion of the question by Deane J in Hackshaw v. Shaw (supra) at pp 641-658. I refer in particular to his discussion of the judgments of Fullagar J in Rich v. Commissioner for Railways (N.S.W.) [1959] HCA 37; (1959) 101 CLR 135 and in Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274. Accepting that there is now a complete absorption of the "special duty" of an occupier qua occupier to a person lawfully upon premises into the ordinary duty of care set forth by Lord Atkin in Donoghue v. Stevenson, I think that duty may be defined in words respectfully adapted from the judgment of Dixon CJ in Commissioner for Railways (N.S.W.) v. Cardy at p 286. (He was there referring to a trespasser.)

"In principle a duty of care should rest on a
man to safeguard others from a . . . danger of
. . . harm if knowingly he has created the
danger or is responsible for its continued
existence and is aware of the likelihood of
others coming into proximity of the danger
and has the means of preventing it or of
averting the danger or of bringing it to
their knowledge."

15. Of course, it may well be the case that the duty of care is applicable in respect of a danger so great that merely to bring it to the attention of those who might reasonably be expected to come on to the land to deal with the danger might not be enough. I instance the danger which might be negligently created in a nuclear power station.

16. Granted that it was foreseeable that a suitably qualified employee of the Authority might come upon the land to deal with the encroaching branches and might thereafter suffer injury as a result of his activity since all things are possible, it seems to me that it was, nevertheless, not foreseeable in the relevant legal sense that a suitably qualified employee should be injured in the circumstances. See The Council of the Shire of Sutherland v. Heyman [1985] HCA 41; (1984) 59 ALJR 564. See also Merrington v. Ironbridge Metal Works, Ltd. (1952) 2 All ER 1101 at p 1104, (C) and Salmon v. Seafarers Restaurants Ltd. (1983) 1 WLR 1264 generally and particularly at p 1272.

17. The plaintiff described his occupation in some detail in paragraph 3 of the statement of claim. On its face that paragraph indicates that he was employed generally, inter alia, to clear branches of trees from power lines working on and from a travel tower. His description of himself is exactly that of the employee of the Authority whom the third party might have expected (had they given the matter any thought) to come upon their land to clear the encroaching branches.

18. In these circumstances it seems to me that since the plaintiff must be taken to have known the danger which he had to meet, at least so far as the matter might reasonably be taken to be within the contemplation of the third party, he had appropriate warning of it.

19. In the absence of an allegation of special danger which might pitch the duty of care residing on the third party at a higher level, the matter seems to me to be dealt with decisively by the decision in Papatonakis v. Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7.

20. The learned Registrar referred to a passage in the joint judgment of Brennan and Dawson JJ where they said, at p 30:-

"The principle which these cases illustrate
is this: where an independent contractor
carrying on a particular trade is engaged by
an occupier to work on his premises, the
occupier is not under a duty to give warning
of a defect in the premises if tradesmen of
that class are accustomed to meeting and
safeguarding themselves against defects of
that kind."

21. In my opinion, if one accepts that there was an implied engagement by the occupier of an employee of the Authority or his equivalent to clear the branches the very nature of the engagement of the employee by the Authority and hence notionally of the plaintiff was enough to give warning to the plaintiff of the precise defect in the premises which he was called upon to deal with and the third party was entitled to assume, had they given the matter any thought at all, that tradesmen of that class were accustomed to meeting and safeguarding themselves against defects of that kind.

22. The appeal is therefore dismissed.