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Nomikos Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 (5 February 1985)

CATCHWORDS

Master and Servant - Safe system of work - Telephone linesman injured repairing faulty line - Climbing pole installed by occupier contrary to standing work instructions - Injury when line snaps.

HEARING

DECISION

It appears from the facts as stated by the primary judge that Northern had advised Telecom of a fault in a telephone service provided by Telecom and had requested that the fault be rectified. The appellant, who was classified as a grade 1 linesman and who was described by the primary judge as "competent and reasonably experienced", was sent with a more junior employee named Follett to Northern's premises to rectify the fault. Upon arriving at Northern's premises the appellant decided that it would be necessary to replace the telephone line in relation to which the fault had occurred. The line ran between two buildings on the premises; one of which was an office housing the switchboard and the other of which was used as a dry store.

It was found by the primary judge that the line had been installed by Telecom at the request of Northern in 1975 or 1976 but that at some time prior to the date of the appellant's injuries it was altered by Northern, probably using its own labour and probably because it was interfering with vehicular access to the premises. In the initial installation a standard telephone cable had been strung directly between the buildings with probably one pole for support. The cable consisted of two copper conductor wires together with a high tensile steel bearer wire designed to take the strain of the weight of the weaker copper wire. It is of some significance in this case that the bearer wire also had the effect of adding to the stability of the pole to which it was attached.

The alterations, which were carried out without the knowledge or approval of Telecom, involved raising the height of the cable and changing its direction so that it followed a right-angular course supported by one pole on the roof of a shed not far from the office building and two further poles between the buildings. These poles were constructed by attaching relatively thin metal pipes to existing metal gate posts. The poles were referred to in evidence as poles 1, 2 and 3 respectively, with pole 3 forming the apex of the right angle. Between pole 3 and the dry store a length of ordinary low tensile domestic flex was inserted, presumably to add to the cable following the lengthening of its course. There is no evidence that Telecom knew of the alteration before instructing the appellant to attend Northern's premises, though the trial judge accepted that the appellant was probably told by his supervisor that it might be necessary to re-run the line.

The appellant was not told of the alteration of the line at any stage. Before commencing the task of replacing the line he carried out a general survey to trace its path but he did not discover the existence of the flex. He then ran a new cable from the office to pole 1, situated on the shed, and attached it to that pole. In doing so he noted that the existing cable contained the usual steel bearer wire and evidently assumed that it was consistent throughout its length. The appellant then moved to pole 2 which he planned to climb with the use of a standard wooden extension ladder. There was some discussion between the appellant and Follett as to the stability of the pole but it responded adequately to an elementary "push test", which involved using the ladder to test its stability, and the appellant mounted the ladder against the pole and replaced the cable running to it without difficulty.

The appellant and Follett next proceeded to pole 3 where the fall which caused the appellant's injuries was to occur. They noted that the top of the pole was slightly bent. Follett placed the ladder against the pole in a position where it bisected the right angle formed by the lines. This was to maximise the bracing effect of the existing cable. The appellant then gave the pole a "push test". The evidence of Follett continues:

"Then, perhaps, you could just describe what happened after you had put the ladder up against the pole? What did Nick do?--- After I put the ladder against the pole I thought it wasn't - it didn't look, you know, right, but I mentioned to him that I didn't think it was real good, and he said, 'It's okay', you know. I think my own view was that the first pole was okay so, you know, the second pole was of similar structure, so there was no hassles, you know.
Was it your view then that pole number 3 was about the same as pole number 2?--- Yes.
He had already been up pole number 2, and there had not been any problems, is that right?---Yes, that's right.
HIS HONOUR: You just told me that it did not look right. Tell me what concerned you? Did it concern you at the time?--- As far as I can remember the bend of the pole didn't seem right, but it wasn't exactly the same as the first pole, but the way I'd put the ladder the wires should have taken that up, you know, because the wire's very strong.
You placed the ladder for that reason, did you?---Yes."

The appellant then mounted the ladder to a height of some three and a half metres. Before he had the opportunity of tying the ladder to the pole or applying his safety harness the flex used in substitution for the high tensile wire snapped under the strain, causing the wire attached to the pole to whip back and the top of the pole to bend. The appellant was dislodged from the ladder and thrown to the ground.

Although the primary judge found that the appellant was not aware of the addition of the flex before climbing the ladder and had not been negligent in failing to detect it, his Honour found that the pole was "quite obviously a 'home made' affair" and that, in view of the bend in the section of it, the appellant's decision to mount the ladder supported by the pole amounted to a failure to exercise reasonable care for his own safety. The appellant contended in evidence that he thought the pole was a "Telecom" pole. This the trial judge found hard to accept. His Honour said that if that was the appellant's belief "it was a belief formed on the most flimsy basis and without adequate inspection."

In the result Muirhead J. declined to find liability on the part of either Telecom or Northern. His Honour's judgment was upheld by the Full Court of the Federal Court unanimously with regard to the claim against Telecom and by majority (Franki and Fisher JJ., St.John J. dissenting) with regard to the claim against Northern.

With regard to the appellant's claim against Telecom, the critical findings of the primary judge are sufficiently set out in the following passages from his judgment:

"Not only was he not required to climb 'doubtful' poles; his training was to the contrary. In such circumstances he should have communicated with Telecom so that the pole could be tested. I am confident Telecom would not have permitted any linesman to mount using a single ladder system.
.....
I am well satisfied that the decision the (appellant) made (and the contrary to his training and to the practices which should have been adopted."

Mr Bennett Q.C. for the appellant submits first that the primary judge was not entitled on the evidence to make these findings. He points out that the only direct evidence on this aspect of Telecom training and practice was that of Mr Ambrose, a Telecom engineer, who stated that the clear instruction to all staff was that where a pole was not of Telecom construction it was to be left alone completely. Mr Bennett claims that this evidence was inconsistent with official Telecom instructions setting out safety precautions to be taken before climbing poles belonging to other government authorities and with certain evidence of the appellant himself. I am not persuaded that Mr Ambrose's evidence was inconsistent with the instructions. In the context in which his evidence appears it seems that his mind was directed specifically to poles erected on private property by private persons and that he was not speaking of non-Telecom poles generally. Nor am I persuaded that it was necessarily inconsistent with the evidence of the appellant who simply stated that he had been taught that extra care should be taken where a pole was not a Telecom pole and that he could not remember being taught that if it was not a Telecom or Northern Territory Electricity Commission pole he should contact an inspector. In any case very cogent reasons would be required at this stage to disturb conclusions of fact formed by the trial judge on the totality of the evidence and apparently unanimously accepted by the Federal Court.

Next Mr Bennett submits that Telecom failed to provide a safe system of work in that it did not give any instruction to the appellant about what he should do when there was a defective wire nor about the need to take precautions against defective wires and that in particular it failed to deal in any way in its system with the danger of the vibration of a pole due to the sudden removal of a wire. However, once it is acknowledged that the appellant's fall would have been avoided had he conformed to the Telecom practice of not climbing "doubtful" poles, it is beside the point that the fall could equally have been avoided had he followed some other practice involving taking precautions against the dangers of defective wires, unless Telecom knew or ought to have known that its instruction might be disobeyed. This was not suggested at the trial. It was the mounting of the ladder against the pole, placing strain on the wire, that caused the flex to snap.

With regard to the appellant's claim against Northern, the trial judge saw the primary issue as being whether the pole was to the appellant an "unusual danger" within the meaning of that expression as used by Willes J. in Indermaur v. Dames (1866) L.R. 1 C.P. 274, at p.288. He went on to decline to find liability on the part of Northern on the basis that he was not persuaded that Northern could reasonably foresee that a Telecom employee or any other person would mount the pole using a single ladder. In the Full Court of the Federal Court Franki J., with whom Fisher J. agreed, was prepared to accept that the insertion of the flex in the line constituted a danger but held, relying on a line of authority commencing with Christmas v. General Cleaning Contractors Ld. (1952) 1 K.B. 141, that Northern in requesting Telecom to repair the line was asking for that work to be done by a skilled person who must be deemed to have been properly instructed in relation to deciding whether or not a pole was safe to climb. Mr Bennett challenges the necessity of establishing that the mounting of the pole by the appellant was reasonably foreseeable by Northern and seeks to distinguish the cases relied upon in the Federal Court.

The argument for the appellant requires an examination of the relationship between the law relating to the liability of occupiers to invitees and the general law of negligence. The starting point is the well-known statement of Willes J., delivering the judgment of the Court of Common Pleas, in Indermaur v. Dames, at p.288, where it was said to be "settled law" that an invitee:

"... using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact."
In Indermaur v. Dames the plaintiff sued to recover damages for injuries which he sustained when he fell down a shaft at the defendant's place of business through the alleged negligence of the defendant and his servants. The jury returned a verdict for the plaintiff, having been instructed by Erle C.J. that it was for the plaintiff to establish a want of reasonable care on the part of the defendant. The Court of Common Pleas discharged a rule obtained by the defendant framed alternatively for a non-suit, arrest of judgment or a new trial. It has been said that, viewed in this context, the statement seems to be saying nothing more than that an occupier's obligation to an invitee with respect to dangers on his land should be measured by reference to the standard of reasonable care (see Fleming, The Law of Torts (6th ed., 1983), p.430).

An alternative early formulation was that of Brett M.R. in Heaven v. Pender (1883) 11 Q.B. 503, at p.508, where the duty of an occupier to an invitee was described as one "of using reasonable care so to keep his house or warehouse that it may not endanger the person or property of the person invited." His Lordship went on (at p.509) to state the general principle, which was later to be taken up and refined by Lord Atkin in Donoghue v. Stevenson [1932] UKHL 100; (1932) A.C. 562, at pp.580-581, that:

"... whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the property or person of the other, a duty arises to use ordinary care and skill to avoid such danger."

In Mountney v. Smith [1904] HCA 7; (1904) 1 C.L.R. 146, Griffith C.J., with whom Barton and O'Connor JJ. concurred, quoted with approval both the statement in Indermaur v. Dames and the general negligence principle in Heaven v. Pender, apparently regarding them as amounting to the same thing for the purposes of that case. Later, in South Australian Co. v. Richardson [1915] HCA 41; (1915) 20 C.L.R. 181, at p.185, Griffith C.J. regarded the rule enunciated in Indermaur v. Dames as a particular exemplification of a general principle of liability. Isaacs J., on the other hand, (at p.189) saw Indermaur v. Dames as "the recognized repository of the law on this subject" and continued later (at p.190) that it was "all important to adhere to the carefully-worded formulation of the rule." Preference for adherence to the Indermaur v. Dames formulation was similarly expressed in Bond v. South Australian Railways Commissioner [1923] HCA 50; (1923) 33 C.L.R. 273, at pp.278, 282-288, 292-293, 295.

In Donoghue v. Stevenson, at p.580, in proceeding to express the general concept of the duty of care, Lord Atkin referred to "some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances." It is clear that amongst the cases his Lordship had in mind were those dealing with the duties of occupiers at least to invitees, of which Heaven v. Pender was an example. However the independent status of the rules relating to those duties were and have continued to be the subject of controversy. See generally: Marsh, "The History and Comparative Law of Invitees, Licensees and Trespassers" (1953) 69 Law Quarterly Review, 182, 359; Lucke, "Towards a General Theory of Negligence and Occupiers' Liability" (1960) 2 Melbourne University Law Review 472; McMahon, "Conclusions on Judicial Behaviour from a Comparative Study of Occupiers' Liability" (1975) 38 Modern Law Review 39.

The difficulty of reconciling the traditional duties of an occupier with the general law of negligence was recognized by Dixon J. in Lipman v. Clendinnen [1932] HCA 24; (1932) 46 C.L.R. 550, a case decided almost contemporaneously with Donoghue v. Stevenson. His Honour said (at pp.554-555):

"The circumstance which annexes to occupation the duty of care, when it exists, is the presence or proximity of others upon or to the premises occupied. It is because the safety of such persons may be endangered that the obligation of care arises ... The circumstances in which one man may lawfully come upon premises in the occupation of another are infinitely various and as his lawful presence there must raise some duty of diligence, however slight, for his safety, it might be considered consonant with general principle to measure the standard of care required by determining as matter of fact what amount of care in all the actual circumstances of each particular case the reasonable man would exercise. But English law has adopted a fixed classification of the capacities or characters in which persons enter upon premises occupied by others, and a special standard of duty has been established in reference to each class."
The traditional classifications relating to the liability of occupiers were thus characterized as fixed applications of what would now be referred to as the rule in Donoghue v. Stevenson. It is of course unnecessary in the present case to have regard to all the various categories of duty which have developed in relation to different classes of entrant, the parties having fought the case on the basis that the appellant was an invitee.

In England the death knell for any general assimilation of the duties of an occupier to an invitee into the general law of negligence was sounded by the House of Lords in London Graving Dock Co. Ld. v. Horton (1951) A.C. 737, where an invitee's knowledge of a danger was held to be a conclusive answer to his claim against an occupier even though it was not shown that he had freely assumed the risk of injury. It was accepted that the reference by Willes J. in Indermaur v. Dames to the giving of notice by the occupier meant that notice was always a discharge of the duty so that if the invitee knew of the danger the injury suffered could not be said to be caused by a breach of duty. Lord MacDermott and Lord Reid dissented, Lord Reid stating (at p.785) that he saw "no reason to depart unnecessarily from the simple method of asking in any case what would a reasonable man in the shoes of the defendant have done."
Criticism of Horton led to the third report of the English Law Reform Commission, resulting in the Occupiers' Liability Act 1957 (U.K.) which enacted rules expressed to replace the rules of the common law regulating the duty of an occupier to his visitors, whether they would have been treated at common law as invitees or licencees. Section 2 imposed on the occupier the "common duty of care" being a duty:

"... to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."
See s.2(2). The actual decision in Horton was specifically abrogated by s.2(4)(a). Equivalent legislation was introduced in New Zealand shortly afterwards (Occupiers' Liability Act 1962 (N.Z.)).

An analysis of the decisions of this Court subsequent to Horton show a consistent trend away from the rigid approach which it exemplified. In Commissioner for Railways (N.S.W.) v. Hooper [1954] HCA 7; (1954) 89 C.L.R. 486, the Court refused to apply the Indermaur v. Dames formulation in an action to recover damages for the death of a man killed in operations at a railway yard merely because the relationship between the parties was that of occupier and invitee. Taylor J. pointed out (at p.504) that the rule in Indermaur v. Dames relates to liability for injuries caused to an invitee through unusual dangers on premises to which an invitee has come and that the liability of the occupier in circumstances unrelated to the safety of the premises might fall to be determined in accordance with the general principles of negligence. See also at p.495, per Dixon C.J.

Later, in Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 C.L.R. 274, Windeyer J., after observing that the cases concerning the liability of an occupier to those entering his land decided between Heaven v. Pender and Donoghue v. Stevenson "seemed to have reduced this branch of the law to a formulary", said (at p.316) "The duty of the occupier is, however, rooted at bottom in his duty to his neighbour in Lord Atkin's sense." He then quoted the first two sentences in the passage already set out from the judgment of Dixon J. in Lipman v. Clendinnen and stated (at p.317):

"The formulary rules really do no more than state what the law has determined a reasonable man must do to discharge a duty of care arising in particular circumstances. And they are decisive only in cases where the plaintiff's case is founded upon the duty of the defendant as occupier for the safety of his premises. A plaintiff who can rely on a duty of care arising in particular circumstances is not to be defeated merely because the defendant is the occupier of the land on which he came to harm. His presence upon the land and the circumstances in which he came there may be merely elements in a total situation from which a duty of care arises, and not the foundation of the defendant's duty of care."
See also at pp.294-295, per Fullagar J.

In Commissioner for Railways (N.S.W.) v. Anderson [1961] HCA 38; (1961) 105 C.L.R. 42, a case of direct importance to the present, the Court held that the decision in Horton was limited to the situation where the invitee undertook the risk with full appreciation of the danger. The issue in the case of most relevance here, however, was whether, in the circumstance that the plaintiff struck his head on a beam as he entered a railway station occupied by the defendant, there was evidence upon which a jury could find a breach of duty on the part of the defendant. The Court held by a majority that there was.

While McTiernan J., adhering closely to the Indermaur v. Dames formulation, approached the issue by asking whether there was evidence that the structure of the entrance constituted an "unusual danger" and by saying that it was sufficient that the defendant knew or ought to have known the structure of the entrance, the other members of the Court pursued a different inquiry. Fullagar J., who was in dissent, but with whose exposition of the law Kitto J. agreed, explained that the statement of Willes J. in Indermaur v. Dames was not intended to lay down a special rule apart from the general law of negligence and that the expression "unusual danger" was to be read with the words "which he knows or ought to know". Fullagar J. said (at p.57):

"It is impossible to say that a defendant knew or ought to have known of an 'unusual danger' unless he not only knew or ought to have known of the existence of a thing but also knew or ought, as a reasonable man, to have known that the thing was dangerous."
Fullagar J. went on to say that the "ultimate test must be foreseeability" and to state his conclusion in terms of whether there was evidence to support a finding that a reasonable man in the position of the defendant would have foreseen and guarded against the occurrence of an accident of that type. Taylor J. asked whether the presence of the beam created "an unusual danger" to persons in the position of the plaintiff but paraphrased that expression with the expression "any real risk of injury". This expression, when read in conjunction with his Honour's earlier statement (at p.61) of the obligation of the occupier "to use reasonable care to safeguard an invitee coming on to the premises", indicates clearly that Taylor J. had in mind the same general test of foreseeability as did Fullagar and Kitto JJ. As Barwick C.J. explained later in Caterson v. Commissioner of Railways [1973] HCA 12; (1973) 128 C.L.R. 99, at p.101, expressions such as "of real risk" and "of real danger" are often used in tort cases in relation to foreseeability. Similarly Menzies J., although separating the questions whether there was evidence upon which the jury could have found (a) that the defendant knew or ought to have known that the beam was dangerous and (b) whether the beam constituted an unusual danger, answered the former question in the affirmative (at p.65) "because the (defendant) was through its servants aware of the physical facts which a reasonable man would appreciate constituted a danger in a thoroughfare".

Thus, in Anderson a majority of the Court subordinated the Indermaur v. Dames formulation to the general law of negligence. Significantly, the Court in Voli v. Inglewood Shire Council [1963] HCA 15; (1963) 110 C.L.R. 74, in holding the occupier of a hall liable to an invitee for injuries caused through the collapse of a stage, approached the case according to general negligence principles rather than according to the standard formulations of the rules of occupiers' liability. Windeyer J., with whom the other members of the Court agreed, said (at p.89):

" ... the trend of judicial authority has been to treat the liability of an occupier for mishaps upon his premises as governed by a duty of care arising from the general principles of the law of negligence. The special rules concerning invitees, licensees and others are ultimately subservient to those general principles. Instead of first looking at the capacity in which the plaintiff comes upon the premises, and putting him into a category by which his rights are measured, the tendency now is to look at all the circumstances of the case, including the activities of the occupier upon, or in respect of, the premises, and to measure his liability against the conduct that would be expected of a reasonably careful man in such circumstances."

The general applicability of this statement in the light of the reaffirmation of the rules relating to the traditional categories of entrant by the Privy Council in Comr. for Railways v. Quinlan (1964) A.C. 1054, Comr. for Railways v. McDermott (1967) 1 A.C. 169 and Southern Portland Cement Ltd. v. Cooper [1973] UKPCHCA 1; (1973) 129 C.L.R. 295, is not here in issue (see Public Transport Commission (N.S.W.) v. Perry [1977] HCA 32; (1977) 137 C.L.R. 107, at pp.115, 121, 130-133, 138-139, 146). In relation at least to a person in the position of an invitee, Anderson and Voli must be taken as settling that the duty of an occupier, even as it is expressed in the Indermaur v. Dames formulation, is no more and no less than the ordinary duty of reasonable care. Whether it also amounts to a duty to ensure that reasonable care is taken is a matter which may fall for consideration at some later time (see Thomson v. Cremin (1953) 2 All E.R. 1185; Kondis v. State Transport Authority [1984] HCA 61; (1984) 58 A.L.J.R. 531, at pp.536-537). I do not regard the view at times expressed in cases such as McDermott, at pp.186-187, Herrington v. British Railways Board [1972] UKHL 1; (1972) A.C. 877, at pp.913, 929, and Perry, at pp.131-132, 138-139, that the relationship between the parties may impose upon the occupier a duty of care existing concurrently with the duty of care arising by virtue of his status as occupier as inconsistent with the duty of an occupier to an invitee being itself a duty to exercise reasonable care.

The content of the occupier's duty to exercise reasonable care for the safety of an invitee must, of course, vary with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises. It is in this context that I would place Christmas v. General Cleaning Contractors Ltd., Bates v. Parker (1953) 2 Q.B. 231 and Pinborough v. Minister of Agriculture (1974) 7 S.A.S.R. 493, the cases relied upon by the majority in the Federal Court. Those cases, which have denied the liability of occupiers to skilled independent contractors injured when encountering risks ordinarily incident to the work they were invited onto the premises to perform, should not be seen as establishing any exception to the normal duty of an occupier to an invitee but rather as particular applications of that duty. In the language of Indermaur v. Dames they simply decided that the risks were not to those invitees "unusual dangers" which the occupiers knew or ought to have known, an "unusual danger" being a danger "not usually found in carrying out the task or fulfilling the function which the invitee has in hand" (Horton, at p.745). By way of alternative explanation, it might be said that reasonable men in the position of the occupiers would not have foreseen, or if they had foreseen would not have thought it reasonably necessary with regard to the knowledge and skill of the invitees to guard against, the occurrence of those injuries to those invitees.

In my opinion therefore the primary judge was correct in concluding that Northern was not liable to the appellant because he was not persuaded that Northern could reasonably foresee that a person in the position of the appellant would mount the pole using a single ladder. Mr Bennett submits, however, that the test of foreseeability adopted by the primary judge was too narrow and that if a person interferes with technical equipment without warning a visiting linesman there is opened up a broad field of danger flowing from that interference which is in the realms of foreseeability even though the particular circumstances of the injury may not have been readily contemplated.

Where a person takes it upon himself to perform a task in circumstances where a reasonable man would think it necessary to call in an expert the standard of care and degree of foreseeability the law will require of him may well be that of an expert (Caminer v. Northern & London Investment Trust, Ld. (1951) A.C. 88, at pp.108, 111-112). Here this consideration would apply with particular force as interference with a telephone line by an unauthorized person may be an offence under the Telecommunications Act 1975 (Cth) (see ss.88, 90). But I am unable to see that it can be of any help to the appellant. Both the layman, because of his observation of the obvious flimsy nature of the pole, and the skilled Telecom linesman, because of his knowledge of accepted procedures in relation to "doubtful poles" even though he would have been aware of the bracing effect of the Telecom cable in contrast to the flex, would not only have not reasonably foreseen the circumstances of the appellant's injury but would have positively thought it out of the question for a person to attempt to mount the pole in the manner adopted by the appellant.

Since writing this judgment, I have had the advantage of reading the judgment of this Court in Hackshaw v. Shaw (unreported, delivered 11 December 1984). It is sufficient to say that a consideration of that case, which dealt with the liability of an occupier to a trespasser, has not caused me to alter the views I have expressed.

I would dismiss the appeal.

WILSON J. I have had the advantage of reading the reasons for judgment prepared by Mason J. and by Deane J. As their Honours have outlined the facts and the history of the case they have relieved me of any necessity to cover that ground again.

Each of their Honours has considered the appellant's case against the first respondent, the Australian Telecommunications Commission and concluded that the appeal should be dismissed. I entirely agree with that conclusion and have no need to contribute anything to the reasons which are advanced in support of it.

It remains for me to address myself to the appellant's case against the second respondent, Northern Research Pty. Ltd. ("Northern Research") and the question of his alleged contributory negligence.

In the Statement of Claim, the appellant framed his alleged cause of action against Northern Research both in ordinary negligence and in occupier's liability. The learned trial judge rejected the claim in both respects although he concentrated on what he described as "the primary issue", namely, whether the pole from which the appellant fell was an unusual danger as that term is used in defining the duty of an occupier to an invitee. I pause to remark that the primary issue, at least as pursued in the appeal in this Court, is not whether the pole itself was an unusual danger but whether such a danger was constituted by the presence of weak household flex in a telephone line thought by the appellant to consist wholly of high tensile Telecom wire.

In the course of argument, Mr. Bennett, counsel for the appellant, was pressed by a member of the Bench to approach the case from the viewpoint of the ordinary principles of negligence adumbrated by Lord Atkin in Donoghue v. Stevenson [1932] UKHL 100; (1932) A.C. 562. While not abandoning such an approach, Mr. Bennett submitted that the invitor-invitee approach was more advantageous to the appellant because he did not then have to prove that the occupier knew or ought to have known that the condition of the wire was dangerous. This is an overly favourable view of the burden resting on the appellant. The classic statement of the duty is that the occupier will use reasonable care to prevent damage from unusual danger of which he knows or ought to know: Indermaur v. Dames (1866) L.R. 1 C.P. 274, per Willes J. at p. 288. The words in which the test is expressed plainly require some knowledge, actual or imputed, on the part of the occupier that his premises contain some condition which is in fact dangerous. As Fullagar J. said in Commissioner for Railways (N.S.W.) v. Anderson [1961] HCA 38; (1961) 105 C.L.R. 42, at p. 57:

"The Commissioner must be taken, of course, to have known of the existence and position of the wooden bar. He put it there. But mere knowledge of the physical facts is, in my opinion, clearly not enough to bring the Commissioner within the language of Willes J. - any more than the plaintiff's mere knowledge of the physical fact is enough to preclude him from recovering. It is impossible to say that a defendant knew or ought to have known of an 'unusual danger' unless he not only knew or ought to have known of the existence of a thing but also knew or ought, as a reasonable man, to have known that the thing was dangerous."
In the present case, I find it impossible to distinguish between the burdens resting on the appellant in relation to the two causes of action alleged against Northern Research. It is no more onerous for him to succeed on one than on the other. I would expect that this will always be the case where the particular facts do not import any relevant relationship other than that of occupier to entrant. This is because the common law, in enunciating the duty of reasonable care that is owed by an occupier to different classes of entrant to his property is particularizing one aspect of the field of the general law of negligence. It seeks to express what the general duty of care will require of an occupier in particular circumstances: Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 C.L.R. 274, at p. 317; Anderson, at p. 56. If in a particular case there is more involved that a mere relationship of occupier to entrant, as I thought there was in the dynamic situation involved in Hackshaw v. Shaw (unreported, delivered 11 December 1984), then one is not confined to the traditional characterization of the duty in terms of that relationship. From this perspective, I see no reason to dismiss as of no assistance the formulations of the duty of an occupier towards the different classes of persons who may enter his property. The community's natural desire for certainty in the law is best served by their retention, so long as their relationship to the fundamental principles of the law of negligence is recognized and maintained.

The history of this case shows that it has consistently been argued by the appellant and approached by the trial judge and by the Full Court of the Federal Court as a case which falls to be determined by reference to the duty of care expressed in terms of the relationship of an occupier to his invitee. In my respectful opinion, that is the approach which is most appropriate to the facts of the case. This is a classic example of an allegation of liability of an occupier for damage suffered by an invitee by reason of an unusual danger on the premises. It was not a dynamic situation, in the sense that there was any positive act of misfeasance on the part of the occupier towards the invitee contemporaneous with the accident such as would bring them into a different "neighbour" relationship. The appellant suffered personal injury by reason of an allegedly dangerous condition of the premises of which the occupier knew or ought to have known. The fact that the dangerous condition was caused by some positive conduct of Northern Research at a time prior to the entry of the appellant does not create a dynamic situation any more than if an occupier had on a prior occasion dug a hole on the property such as would constitute an unusual danger and had neglected to cover it. In either case the property is in a static condition which by reason of earlier conduct confronts an entrant with a dangerous situation.

The trial judge dismissed the action against Northern Research because, having held that the appellant was negligent in mounting the pole by means of a single ladder, being conduct which his Honour found the occupier could not reasonably have foreseen, he rejected the submission that the pole itself was an unusual danger. This being thought to be the primary issue, the result followed.

On the appeal to the Federal Court, Franki J., with whose judgment Fisher J. agreed, was prepared to accept that replacement of the Telecom wire with domestic flex constituted a danger but he relied on the line of cases beginning with Christmas v. General Cleaning Contractors Ld. (1952) 1 K.B. 141 and Bates v. Parker (1953) 2 Q.B. 231 to absolve Northern Research from liability on the ground that it had engaged skilled contractors and was entitled to leave to them the manner of performing the work. As with the trial judge, the appellant was made to pay dearly for having negligently mounted the pole. The third member of the Federal Court, St. John J., dissented, holding that the substituted flex constituted an unusual danger of which Northern Research knew and that by failing to inform the appellant of its presence Northern Research was in breach of its duty of reasonable care.

With all respect, I think that both the trial judge and the majority in the Federal Court allowed too much weight to the fact that the appellant used only a single ladder to mount the pole. It may be accepted that it was negligent of him to do so, but in these days when contributory negligence is no longer an absolute bar to recovery of damages for negligence the occupier cannot shelter behind such a finding. If the proper question was whether the pole itself presented an unusual danger in respect of which the occupier was under a duty of care then the decisions below would be clearly correct because the condition of the pole was obvious. No skilled contractor who chose to mount such a pole and suffered injury in the event that the pole collapsed could hope to lay the blame at the door of the occupier. But in this case the pole was not the source of the danger and in any event the pole did not collapse. The proper conclusion is that the pole itself was not the cause of the appellant's injuries. The cause of his injuries lay in the fact that he climbed the ladder, resting as it was against the pole, relying on the fact that the pole would be stabilized and supported by the admittedly strong Telecom bearer wire extending at right angles from either side of the pole. Reliance on the bearer wire in this way is accepted as proper practice by Telecom, even where its own poles were concerned. Unfortunately, the appellant's reliance on the bearer wire was misplaced because unknown to him the wire had been tampered with, resulting in the presence in the line of a length of ordinary household flex which contained no bearer wire at all. As his weight went on the ladder and thence to the pole, the incomplete bearer wire was unable to take the strain; it snapped, presumably in the vicinity of the flex, causing the Telecom wire to whip back and around the pole. The sudden release of the wire while under strain caused the top of the pole to rock violently and in the result the appellant fell and was seriously injured. The trial judge expressly found that it was not negligent of the appellant to have failed to detect the presence of the flex before proceeding to climb the ladder. His Honour also found that had he become aware of it he would not have attempted to perform his task by mounting the pole in the manner he did. In the light of these facts, the significance to the course of events of Northern Research's failure to warn the appellant of the state of the wire is manifest. It was clearly an unusual danger. Having regard to the fact that Northern Research was responsible for its creation, it cannot be heard to say that it was not aware of the existence of the danger and of the dangerous significance it held for the appellant in the task he was invited to perform. It is no answer to say that a layman may not have appreciated the importance of a continuous bearer wire to the performance by Telecom of its functions because having chosen to interfere in a matter calling for technical skill Northern Research will rightly be fixed with knowledge of the significance of its conduct: cf. Caminer v. Northern & London Investment Trust, Ld. (1951) A.C. 88; Wells v. Cooper (1958) 2 Q.B. 265. Finally, in this regard, the line of cases beginning with Christmas upon which their Honours in the Federal Court relied cannot apply to the facts of this case where the interference with the Telecom wire was not discoverable by a competent skilled workman proceeding without negligence.

In my opinion, therefore, St. John J. was correct in the view he took of the matter and the appellant is entitled to succeed in his claim against Northern Research.

It remains to consider the question whether the appellant was guilty of contributory negligence. I have found the question difficult. The starting point for its consideration must be the finding of the trial judge that it was negligent of the appellant to climb the third pole. To do so was probably contrary to Telecom instructions although I do not find the evidence in that regard to be altogether satisfactory. But there are competing considerations that operate in favour of the appellant. There was some discussion between the appellant and his assistant before the second pole was climbed because its makeshift appearance was recognized. However, the pole was subject to the standard "push-test" to which all poles must be subjected, whereby the ladder is placed against the pole and pressure exerted against the line of the bearer wire. It is plain from the manner of carrying out the test that reliance upon the bearer wire to stabilize the pole is a crucial part of the system, including the system applicable to standard Telecom poles. Having passed the push-test, the appellant climbed the ladder and successfully attached the new line to the second pole. With that experience behind him, the appellant went to the third pole where he himself applied the push-test with apparent satisfaction. It is said that the appellant should not have proceeded to work on that pole; he should have suspended the operation and reported back to his superiors so that an inspection could be carried out by senior staff and a decision made. It is easy with hindsight to know what should have been done but I do not think one should judge too harshly a worker who while not being foolhardy takes what proves to be an overly optomistic view of matters pertaining to his safety. To have returned to the depot would have caused delay to the work and it is not difficult to understand why, the pole having been given a successful push-test, he should have thought that it would be all right. The trial judge, in reaching his conclusion that the appellant was negligent in mounting the pole, relied upon the evidence of Mr. Pulleine, a storeman employed by Northern Research. Mr. Pulleine expressed the view that it was "perfectly ridiculous to put a ladder up to a pole like that ... it was a free standing piece of pipe that, you know, was just prone to accident". But as St. John J. observes, Mr. Pulleine was not an expert, he had no knowledge of the existence of the bearer wire and the reliance upon it for which the system provided. His evidence was of little value.

In any event, I do not find it necessary to pursue to a conclusion the question whether in climbing the ladder when set against the third pole the appellant should be found to have failed to take reasonable care for his own safety. Consideration of that question serves only to distract attention from the real issue. With respect, I think the trial judge misdirected himself when he stated that the primary issue was whether the pole itself presented an unusual danger to a trained linesman. That misdirection infected not only his consideration of the question of the alleged negligence of Northern Research but also of the question of any negligence on the part of the appellant. Let it be assumed that the appellant was negligent in climbing the ladder when placed against the third pole. That negligence was not responsible for his injuries. As I have said, the pole did not collapse. At all times the ladder remained upright against the pole. If the wire had not snapped, there is no reason to think that the appellant would have suffered any damage at all. He fell because of the whiplash effect of the parting of a heavy wire under tension, causing the broken wire to be flung back at speed resulting in the pole rocking violently. The likelihood is that, given the weakness in the wire consequent on Northern Research's unlawful interference with it, it would have snapped and thereby caused the appellant to fall whatever the state of the pole. In my opinion, therefore, the appellant ought not be found to have relevantly failed to take reasonable care for his own safety.

I would dismiss the appeal against Telecom and allow it against Northern Research. The matter should be remitted to the Supreme Court for an assessment of the damages payable by Northern Research.

BRENNAN and DAWSON JJ. An occupier of land is under a general duty of care to a person entering on the land, whether as invitee, licensee or trespasser, independent of any special duty, where there are circumstances giving rise to the general duty. That is now the settled law of this country: see Hackshaw v. Shaw (unreported, 11 December 1984). It is also settled that any special duty owed by an occupier does not restrict the scope and burden of the general duty (see Public Transport Commission (N.S.W.) v. Perry (1977) 137 C.L.R.107, per Gibbs J. at p.131; Hackshaw v. Shaw, per Deane J. at pp.45-46). In Hackshaw v. Shaw, the majority of the Court did not go as far as Deane J. who held (at p.48) that -

" the so-called 'special duties' owed by an occupier to a person lawfully upon his land are instances of the duty of care arising under that general law in the circumstances of the relevant category of case."

Nevertheless, it will usually be a barren exercise to consider whether the special and general duties are distinct but co-existing or whether the special duty is subsumed under the general duty. We would not resolve this question until it is necessary to decide whether the special duty may, in some circumstances, impose a higher or more exacting burden than the general duty, or whether the special duty can arise in circumstances where the general duty does not. It is clear that the general duty does not restrict the scope and burden of the special duty and, until it is necessary to decide and it is decided that the limits of the special duty are within the limits of the general duty, we would not depart from the theory of co-existing duties. The rules relating to the duties owed to invitees and licensees are concerned with laying down the standard of care appropriate to two special classes of case (per Fullagar J. in Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 C.L.R.274, at p.295) and they may be instructive in cases where the tribunal of fact can find no relevant relationship between the defendant and the plaintiff save that of occupier and person entering. This is not such a case, although the appellant was an invitee of the second respondent ("Northern").

Northern had installed the poles and wires on which the appellant was to do his work, it had reported a fault that was likely to require the doing of work by a Telecom employee on the installation, it knew that the wire which ran between the third pole and the shed included a length of domestic flex that contained no bearer wire capable of bracing the pole and it gave permission for the appellant to start work. If those circumstances gave rise to a duty of care (and in our opinion they did), it is not merely Northern's occupancy of its premises that established the relevant relationship between it and the appellant. Its actions - installing the wires on the poles and on the shed, reporting the fault, and giving permission to start work - established a relevant relationship with the plaintiff apart from, or in addition to, its occupancy of the premises.

The fact that the third pole was, as Muirhead J. found, "quite obviously a 'home made' affair" must have brought home to the appellant that the installation on which he was working was not of original Telecom design. But the appellant saw that there was Telecom bearer wire used on those parts of the installation on which he had worked before he reached the third pole. Although climbing a ladder resting on the pole was "contrary to his training and to the practices which should have been adopted", the appellant assumed, as he mounted the ladder, that the pole was braced by bearer wire which joined it on one side to the second pole and on the other to the shed. That assumption was unfounded. As the appellant neared the top of the ladder, about 14 or 15 feet from the ground, the wire between the third pole and the shed snapped at a join between a length of domestic flex and the bearer wire. As the bracing tension was relieved the pole shook and dislodged the appellant. Muirhead J. found:

" Had the plaintiff known that a section of tie wire had been substituted by copper wire flex of a type used for ordinary domestic fittings he would not have attempted to mount the pole.
He was not in my view negligent in failing to detect the addition of flex before he climbed the ladder."
Those findings were open on the evidence.

The appellant suffered his injuries because the third pole was unstable unless it was adequately braced and because the wire running from the pole to the shed contained a length of domestic flex which was incapable of providing the bracing needed as the appellant climbed the ladder. It was negligent of the plaintiff to climb the pole even on the assumption that the bearer wire ran from the pole to the shed, but that is not the end of the matter. The immediate cause of the accident was the snapping of the wire at the join of the bearer wire with the length of domestic flex. Had Northern known that the appellant proposed to place his ladder against the pole in such a position as to require bracing of the pole by the wires as he climbed, it would have been obvious that Northern should have warned the appellant that the wire running to the shed could not be relied on. But Northern did not know how the appellant would go about his work. Muirhead J. thought that the danger of mounting the pole with a single ladder was so obvious that Northern could not reasonably foresee that it would be attempted by a Telecom employee. Accordingly, the appellant's claim against Northern was dismissed. The majority in the Full Court of the Federal Court (Franki and Fisher JJ.) dismissed an appeal, holding that it was a case where Northern had left it to the Telecom employees to decide how the work was to be done and what safeguards should be taken. Their Honours referred to a line of cases where independent contractors who had been invited by occupiers to undertake work had failed to recover damages when they were injured because the premises proved to be unsafe in some respect: Christmas v. General Cleaning Contractors Ld. and Caledonian Club Trust Ld. (1952) 1 K.B. 141; Bates v. Parker (1953) 2 Q.B.231; Archer v. Hall (1967) 1 N.S.W.R.107; Wright (W.H.) Pty.Ltd. v. Commonwealth (1958) V.R.318; Pinborough v. Minister of Agriculture (1974) 7 S.A.S.R.493. 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.

That principle does not conclude the present case. The appellant's accident was caused not only by climbing a pole that was obviously a home-made affair - a danger against which the appellant should have safeguarded himself - but by assuming that the bearer wire ran between the pole and the shed. If the appellant had known that his assumption was wrong, he would not have climbed the pole. It is one thing to leave it to an independent contractor to decide for himself how to do his work; it is another thing to leave him in ignorance of a fact that is material to his decision if he, using reasonable care, might not discover that fact. Even if one accepts the finding by Muirhead J. that it was not foreseeable that a Telecom employee "would mount that flimsily constructed pole by using one ladder", it was entirely foreseeable that the appellant might mount the pole by using one ladder. The appellant was engaged in attending to a fault in the telephone line between the switchboard and the shed, and it was foreseeable that he might have to work on the line attached to the poles and might use a single ladder to do so. At all events, the risk that he might do so was not so small that a reasonable person would in all the circumstances have felt justified in neglecting it, and that is enough to give rise to the duty: see per Lord Reid in C.Czarnikow Ltd. v. Koufos (1969) 1 A.C.350, at pp.385-386; Wyong Shire Council v. Shirt (1980) 146 C.L.R.40, at p.45. Foreseeability does not necessarily stop short at the point where a plaintiff runs a risk. The limit of foreseeability is a question of fact and degree. In our opinion, the facts found by Muirhead J. warrant the inference that the risk of the appellant's climbing the pole in the way he did without discovering the defect in the wire was foreseeable. That is sufficient to give rise to a duty of care. Northern ought to have warned the appellant that the wire running to the shed was defective.

As Northern's failure to warn was negligent, it is liable in damages to the appellant. In climbing the pole, he too was negligent. Northern's omission and the appellant's act contributed concurrently to the appellant's injuries. It does not appear that one bore more responsibility than the other, and we would reduce the appellant's damages against Northern by one-half. For the reasons given by Mason J., we would dismiss the appeal against Telecom. The appeal against Northern should be allowed and the action remitted to the Supreme Court of the Northern Territory to assess the appellant's damages and to enter judgment in accordance with the judgment of this Court. The appellant must pay Telecom's costs and Northern must pay the appellant's costs here and in the Courts below.

DEANE J. The appellant Nomikos Papantonakis ("the appellant") was a linesman employed by the first respondent ("Telecom"). He was injured when he fell from the top of a ladder which was leaning against a make-shift telephone pole on land occupied by the second respondent ("Northern") near Darwin. He sued both Telecom and Northern for damages for negligence. His action against both respondents was dismissed by the Supreme Court of the Northern Territory (Muirhead J.). An appeal from that judgment was dismissed by the Federal Court of Australia. The Federal Court's decision dismissing the appeal against Telecom was unanimous; that dismissing the appeal against Northern was by majority (Franki and Fisher JJ., St. John J. dissenting). The appellant now appeals from the Federal Court to this Court.

The appellant's case against Telecom was based on the claim that Telecom had breached the ordinary duty of care which it owed to him as an employee in that it had failed to provide a safe system of work. In my view, the evidence quite failed to establish that Telecom was guilty of any such breach of duty. The appellant was adequately trained and had been provided with the necessary equipment. Under the system of work which had been established, it was mandatory that a linesman should not climb a "non-standard" pole - at least one on private land and not belonging to another Government authority - until he had communicated with a Telecom supervisor and the pole had been "tested". The appellant was aware of the directive to that effect. If he had complied with it, the accident would almost certainly not have occurred since, as Muirhead J. found, he would not have been permitted to mount the pole using a single ladder system: indeed, normal Telecom practice in such a case would have been to replace the obviously "non-standard" poles with standard poles or to run the wire underground. Telecom could not reasonably be expected to have a system under which all telephone poles were checked by a supervisor or senior linesman before sending an experienced and proficient linesman out to work on or about them. The learned trial judge rejected the appellant's equivocal evidence suggesting that he believed the pole had been inspected by a Telecom supervisor and there was plainly no basis upon which the appellant could have entertained a reasonable belief that the pole was a standard Telecom pole. In the circumstances, the learned trial judge's conclusion that the evidence failed to establish any negligence on the part of Telecom which contributed to the accident was correct. The appeal from the unanimous decision of the Federal Court dismissing the appeal from the verdict in favour of Telecom must accordingly be dismissed.

The appellant's action against Northern was based on alleged ordinary negligence and on an alleged failure by Northern to discharge the duty which it owed as occupier of the relevant land to the appellant who was present upon the land as an invitee. For the reasons which I gave in my judgment in Hackshaw v. Shaw (unreported, delivered 11 December 1984), it should now be again accepted in this country that the so-called "special duty" which an occupier of land owes to an invitee is, on analysis, properly to be seen as the ordinary common law duty to take reasonable care: "The duty is a duty to take reasonable care. The standard is the standard of the reasonable man" (per Fullagar J., Commissioner for Railways (N.S.W.) v. Anderson [1961] HCA 38; [1961] HCA 38; (1961) 105 C.L.R. 42, at p.56). In that regard, the dissenting judgments of Lord MacDermott and Lord Reid in London Graving Dock Co. Ltd. v. Horton (1951) A.C. 737 accord better with subsequent developments in the law of negligence and are to be preferred, at least in this country, to the judgments of the majority of their Lordships which were largely rendered inoperative in England by subsequent statutory provision (see Occupiers' Liability Act 1957 (U.K.), s.2(4)(a)). That being so, the question of the liability of Northern is not to be determined by some rigid formula made applicable by reference to the fact that the appellant came upon the land as an "invitee". In accordance with the general principles of the law of negligence, it must be determined by consideration of all the circumstances including the capacity in which the appellant came upon the land and by measuring the conduct of Northern "against the conduct which would be expected of a reasonably careful man in such circumstances" (per Windeyer J., Voli v. Inglewood Shire Council [1963] HCA 15; (1963) 110 C.L.R. 74, at p.89).

There was plainly a relationship of proximity between Northern as occupier of the land and the appellant who was present on the land as invitee attending to a malfunctioning extension line of Northern's telephone system pursuant to a complaint which Northern had made to Telecom. Unknown to Telecom and the appellant, Northern had tampered with the actual telephone cable. In the absence of any applicable overriding statutory provision or common law rule, the question whether Northern was under a relevant duty of care to the appellant depends upon whether it was reasonably foreseeable that Northern's action in tampering with the telephone cable and failing to inform Telecom or the appellant of what it had done would give rise to a real risk that injury of the kind sustained by the appellant would be sustained by him or by a member of a class which included him (cf. Jaensch v. Coffey [1984] HCA 52; (1984) 58 A.L.J.R. 426, at p.442). I have come to the firm conclusion that there was, in all the circumstances, reasonable foreseeability of a real risk of such injury with the result that Northern was under a relevant duty of care to the appellant. While that conclusion is essentially one of law, it is founded upon matters of fact. Since it differs from that reached by the learned trial judge and by the majority of the Federal Court, it would seem desirable that, at the cost of some repetition, I identify the findings of Muirhead J. and the other factual matters upon which it is essentially based.

The cable used by Telecom in the extension line between the "office" building containing Northern's main switch board and a storage shed included, as did all Telecom's standard cables, a high tensile bearer wire of considerable strength. The Telecom method, when conveying a cable past a supporting post, was to cut the bearer wire and, after removing insulation from each section, to attach each end to the post by wrapping it around the appropriate components: the conductor wires were not severed and they by-passed the post without taking strain. Because of the strength of the bearer wire, such a standard cable added stability to the poles which supported it and, in particular, provided resistance to a force exerted against a telephone pole in the opposite direction to that from which the cable came. The unauthorized alterations effected by Northern involved the use of metal piping as two rough "posts" (the "second" and "third" poles) between the building and the shed. They also included a lengthening of the line of the Telecom cable by the insertion of ordinary domestic flex which did not contain any high tensile wire. In the words of Muirhead J., this had the effect of adding "a weak flex to strong tie wire" with the result that the posts adjoining the length of cable constituted partly by the weak flex no longer enjoyed the support which they would enjoy if standard Telecom cable had alone been used. The flex had become a weak link in the chain of the cable.

Northern's alteration to the Telecom extension may have caused interference with its working since Muirhead J. found that difficulties with the connection regularly occurred thereafter. The receptionist at Northern's premises reported the fault to Telecom without any detailed disclosure of its nature though, as his Honour found, the appellant was probably informed by his superior that it might be necessary to "re-run" the existing cable. When the appellant and a more junior Telecom employee ("Follett") arrived at the premises, they obtained the approval of a person in Northern's office to start work. That (unidentified) person took the appellant outside the main office and pointed out the faulty cable. Nothing was said to inform Telecom, the appellant or Follett that Northern had altered the actual cable which had been installed by Telecom. The appellant carried out a cursory inspection (from the ground) of the existing extension line but did not notice that flex had been added to the Telecom cable. In that regard, it is relevant to note that the line was, apparently, up to approximately 4.5 metres above the ground.

When the appellant and Follett commenced to replace the line from the first pole situated on the roof of Northern's main office, the appellant found that the existing cable had a different cross-shape from that of the Telecom cable with which he was personally familiar but that it contained the usual strong bearer wire. Although the appellant was himself unfamiliar with the particular cross-shape, the evidence indicated that it was in fact, as the appellant obviously assumed it to be, Telecom cable. Having connected the new cable to the first pole, the appellant moved to the second pole which was probably welded to a cyclone fence. The third pole was free-standing. The learned trial judge described this pole as "basically and quite obviously a homemade affair": as has been said, both consisted of metal piping. Its top section was slightly bent away from the vertical. Follett expressed some doubt about the pole to the appellant, who replied: "It's O.K". Follett did not object further because, as he stated, the third pole was similar to the second which the appellant had mounted without incident. Follett, whose evidence was accepted by the learned trial judge, added that: "It (i.e. the third pole) wasn't exactly the same as (the second pole), but the way I'd put the ladder the wires should have taken that up, you know, because the wire's very strong". The evidence indicated that the cable made a right angle turn at the point of the third pole, and Follett had placed the ladder inside this right angle, more or less dissecting it, so that the ladder would push against the forces exerted by the cable in each direction. The stability of the pole depended upon the strength of both lengths of cable: the strength of one length of cable had been destroyed by Northern's insertion of the flex between the third pole and the fourth or last pole which was on the storage shed.

The appellant climbed the third pole, carrying a safety belt, to a height of about 4.5 metres. Follett held the base of the ladder. Before the appellant could tie the ladder or apply his safety harness, the wire (leading to the store shed, as the trial judge found) snapped due to the strain caused by the appellant. Presumably, the breakage was in or at the join of the weak flex. The top of the pole whipped wildly around, dislodging the appellant who fell and sustained his injuries. Follett managed to hold the ladder upright and the pole remained standing, although the bend in the top section became more pronounced. Without the breaking of the flex, the "whipping" effect would not have occurred. The clear inference is that, had the pole been stabilized and strengthened by standard cable, it would have withstood the appellant's weight and the appellant would probably not have fallen.

The final factual ingredient of the appellant's case against Northern is the importance which Telecom linesmen place in the ordinary course of their work, and which the appellant in fact placed, upon the strength of standard Telecom cable. The evidence illustrated that importance in a number of ways. When the "push test" was applied to test the second pole, pressure was exerted in a direction which was perpendicular to the line of the cable in accordance with standard Telecom procedure which reflected the accepted belief that the bearer wire in the ordinary cable added support to the stability of the pole. When the appellant mounted the second pole, he, in accordance with accepted Telecom practice, connected the new cable and attached the bearer wire while the old was still in place so as to ensure that the pole was constantly supported by a strong bearer wire. The learned trial judge accepted that the appellant, as a trained linesman, would foresee the risk of injury if he had climbed a free-standing pole made of piping which was not supported by standard strong cable in that his Honour expressly found that, if the appellant had known of the weak flex added to the cable, he would not have climbed the pole. As has been seen, both the appellant and Follett assumed that the ordinary Telecom cable would support the third pole.

In the present case, the question of foreseeability of a real risk of injury does not fall to be determined by reference merely to whether the ordinary reasonable man of the law could be expected to know of the importance which a Telecom linesman was likely to place upon the strength of Telecom's standard cable. The evidence indicated that the installation of a Telecom extension line is a skilled function for which special materials are required, together with some understanding of the properties of those materials. Having interfered with such an installation with which an unskilled person was not properly qualified to tamper, Northern is not entitled to claim immunity from liability for the likely consequences of its meddling on the ground that the ordinary person would not foresee them. A reasonably prudent occupier does not rely merely on his own judgment and skill in a situation where technical expertise which he does not possess is required. He should obtain and follow proper technical advice or employ a qualified person to perform repairs requiring expert skill (see, e.g., Haseldine v. C.A. Daw & Son Ltd. (1941) 2 K.B. 343, at p.356; Wells v. Cooper (1958) 2 Q.B. 265, at p.271). If he meddles himself, he cannot complain if the standards of care and foreseeability of injury which the law exacts of him are not those of the hypothetical person on a hypothetical Bondi tram or Clapham omnibus but those of the "ordinary skilled (person) exercising and professing to have that special skill" (per McNair J., Bolam v. Friern Hospital Management Committee (1957) 1 W.L.R. 582, at p.586). The question whether the unauthorized and uncommunicated insertion of a length of ordinary weak flex in the strong Telecom cable was foreseeably a cause of injury in the present case accordingly falls to be determined by reference to the standard of the person with sufficient expertise to know of trade skills and practices including the reliance which telephone linesmen are likely to place upon the strength of standard cable in the ordinary course of their work. The case is analogous to that where a claim in negligence depends upon whether some defect in a complicated piece of machinery was foreseeably a cause of injury and in which, as Lord Bridge of Harwich observed in McLoughlin v. O'Brian (1983) 1 A.C. 410, at p.432, "the judge will decide that question on the basis of the expert evidence of engineers".

As has been said, neither the post nor the ladder on which the appellant was standing fell down when the accident occurred. The appellant was thrown from the ladder when the post whipped back after the weak flex had broken. Follett managed to keep the ladder itself upright. The strong Telecom cable added stability to the post while it was intact. It produced the foreseeable and dramatically opposite effect when the weak link, which should not have been there, broke. To one with knowledge of the stabilizing effect the standard cable had on a telephone post and of the reliance that linesmen placed on it, it was reasonably foreseeable that to insert weak flex in the line of cable would create a real risk of injury to a linesman who was unaware of the insertion and who might assume and rely upon the standard cable's strength and stabilizing effect. That being so, Northern was under a duty of care towards those who might subsequently work upon the extension line when it interfered with the Telecom installation. The appellant was one of the class of persons to whom that duty of care was owed. Northern was in breach of that duty of care to the appellant when it destroyed the strength and stabilizing effect of the cable and failed to tell Telecom or the appellant of what it had done before the appellant, as a result of Northern's own complaint to Telecom, commenced to work upon the extension line. It is true that the appellant should not have climbed the post and that he was obviously guilty of contributory negligence in so doing. That does not alter the position however that, in terms of the standard to be applied, it would have been reasonably foreseeable to a skilled person that to destroy the strength of the cable by inserting a length of weak flex might cause injury in a variety of ways to a linesman who had not been told of the insertion and who relied upon the strength of the cable to support either the post if he or his ladder was to lean against it or himself if he had cause to grab it. On the evidence and on the learned trial judge's findings, the appellant and Follett both relied upon the strength of the cable to support the post: the appellant would not have climbed the post if he had been told of the insertion of the weak flex and, as has been seen, the inference from the evidence is that the accident was actually caused by the breaking of the weak flex. The accident which occurred and the injury which the appellant sustained were of the very kind which it could be reasonably foreseen might result from breach of the duty of care which Northern owed to the appellant.

It should be mentioned that the majority in the Federal Court placed particular reliance upon the decisions of the United Kingdom Court of Appeal in Christmas v. General Cleaning Contractors Ltd. and Caledonian Club Trust Ltd. (1952) 1 K.B. 141 and Bates v. Parker (1953) 2 Q.B. 231. Those cases did not however involve circumstances in which the occupier had, by interfering with technical equipment, created a risk of injury to one who might fail to appreciate the existence or extent of the non-expert meddling that had occurred. In my view, they should be seen as involving no more than instances of the application of the ordinary principles of the law of negligence to the particular circumstances there involved. To the extent that they are properly to be seen as denying the application of those ordinary principles to the case of an occupier of land (cf. Christmas v. General Cleaning Contractors, at pp.148-149 and 150; Bates v. Parker, at pp.235 and 238), they were based on the majority judgments in London Graving Dock Co. Ltd. v. Horton which denied the applicability of the general principle of negligence to determine the duty of an occupier of land to an invitee and should not be followed in this country. To the extent that they support the proposition that, in the ordinary case where there has been no undisclosed non-expert meddling with a technical installation, an occupier is entitled to rely upon an expert to work out the appropriate method of dealing with a technical matter calling for expert skill, they represent no more than common sense. So seen, they provide no answer to the appellant's claim against Northern in the present case.

There remains to be considered the question of contributory negligence. It was, as I followed the argument, common ground that, if the appeal should succeed against Northern, the question of contributory negligence should be determined in this Court to avoid the need to remit the matter to the Supreme Court for further argument on liability as distinct from assessment of the quantum of damages. In the circumstances, that is the course which should be adopted. The appellant was plainly negligent in climbing the ladder leaning against the make-shift pole to a height of some 4.5 metres. As has been seen, that negligence was a cause of the accident: but for it, the accident would not have occurred. For its part, Northern was guilty of negligence in interfering with the actual Telecom cable and inserting the length of weak flex. The breaking of that flex was a direct cause of the accident: but for it, the accident probably would not have occurred. Northern compounded its negligence when it failed to tell Telecom or the appellant of what it had done. But for that, on the learned trial judge's finding, the appellant would not have climbed the pole at all. Weighing the negligence of the appellant against the negligence of Northern, it appears to me that they should be held to have been equally responsible for the accident and that the amount of the damages to which the appellant would otherwise be entitled against Northern should be reduced by one half by reason of his contributory negligence.

The appeal against Northern should be allowed. The appeal against Telecom should be dismissed. The action against Northern should be remitted to the Supreme Court of the Northern Territory for assessment of and the making of an order for damages in the appellant's favour against Northern in accordance with these reasons for judgment. The appellant should be ordered to pay Telecom's costs of the appeal in this Court and the orders for costs in Telecom's favour in the courts below should not be disturbed. Northern should be ordered to pay the appellant's costs of the proceedings to date against it in the Supreme Court of the Northern Territory and of the appeal against it in the Federal Court and in this Court.

ORDER

2. Appeal allowed as against the second respondent.

3. Order of the Full Court of the Federal Court of Australia set aside in so far as it dismisses the appeal to that Court against the second respondent and, in lieu of the part of the order so set aside, order -
(a) that the appeal to the Federal Court against the second respondent be allowed with costs against the second respondent except so far as the appellant's costs were incurred by reason of the appeal against the first respondent;
(b) that the judgment of the Supreme Court of the Northern Territory for the second respondent against the appellant be set aside;
(c) that the matter be remitted to the Supreme Court of the Northern Territory to assess the appellant's damages and to enter judgment for the appellant against the second respondent for the damages so assessed adjusted to allow for the appellant's contributory negligence and for the appellant's costs of the action in the Supreme Court except so far as they were incurred by the joinder of the first respondent.

4. Appellant pay the costs of the first respondent.

5. Second respondent pay the appellant's costs except so far as they were incurred by reason of the appeal against the first respondent.