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Bus v Sydney County Council [1989] HCA 29; (1989) 167 CLR 78 (2 June 1989)

CATCHWORDS

HEARING

DECISION

2. The work on which the deceased and his co-shareholder and director, Robert Dickison, were engaged was an extensive upgrading of existing facilities, including substantial modifications to the installations in the switchroom. The work had been in progress for some weeks prior to 22 April. That morning Mr Messina, a technician in the employ of the Council, arrived at the premises in order to carry out the necessary work on the Council's equipment in the switchroom. He took with him a complete service fuse cabinet to house the Council's fuses, a set of current transformers and new metering equipment. He brought with him a cover for the fuse cabinet and fillets which needed to be shaped before they could be fitted into place around the cables, to form the top and bottom of the cabinet.

3. Mr Dickison removed the wedges from the existing service fuses fixed to a wooden panel on a wall in the switchroom. The consumer mains on the incoming or line side were still live but the removal of the fuse wedges meant that the equipment on the consumer or load side was isolated and could be worked on. Mr Dickison and Mr Bus, who were both licensed electrical contractors, removed the existing current transformers from the lower part of the switchbox which was isolated. Mr Messina prepared the new metering equipment for installation and worked on a link box.

4. In the meantime, linesmen of the Council arrived and disconnected the consumer mains from the point of attachment outside the factory, cutting off the supply of power and permitting the work in the switchroom to proceed with complete safety. It was arranged that the linesmen should return in the afternoon to reconnect the supply.

5. During the morning Mr Bus and Mr Dickison attached a batten to the wall above the wooden panel which had housed the old service fuses. To that panel, which stood out about six inches from the wall, and to the batten, they attached the frame of the new service fuse cabinet. Before affixing the cabinet, there were removed from it the bakelite insulating fillets which slid into runnels at the top and bottom and which were shaped around incoming and outgoing cables to enclose the cabinet. There was also removed the front panel door which was swung on pins at one side. When the cabinet was fixed to the wall its base stood about eight feet above the ground.

6. Mr Dickison ran the new consumer mains from the point of connection to the four terminals within the new service fuse cabinet, on the line side. These were connected by bolts and clamps to copper lugs. A short fillet was fitted behind the cables, but from the front the terminals remained exposed. There were other installations in the switchroom on which work was carried out. Mr Messina mounted three new current transformers beneath the cabinet on the wooden panel. Below this panel there was a larger cabinet in which the contractors had previously installed the new switchboard. Alongside this cabinet there was a separate panel on which Mr Messina mounted the new meters and a link box. On one side of the switchboard at about head height there was the main switchbox from which new conductors were to be run to the service fuse cabinet.

7. The various items of work to be undertaken in order to complete the connections required for the reconnection of the supply of power to the plant and equipment within the factory were undertaken by Mr Messina, Mr Bus and Mr Dickison and an apprentice employed by Mr Bus and Mr Dickison, each attending to his allotted area of responsibility. At approximately 1.15 p.m. the linesmen returned to reconnect the power to the point of attachment in the street. Wood J. found that each of the men in the switchroom assisted in this operation. When it was complete, one of the linesmen announced in the presence of Mr Bus and Mr Dickison: "All alive now". Wood J. found that, from that point, there was no doubt in the minds of those working in the switchroom that power was flowing to the line side of the service fuse cabinet. The power remained connected for the rest of the day.

8. The linesmen then departed, leaving Mr Messina, Mr Bus and Mr Dickison to continue their work. At that stage the load conductors had to be terminated on large studs within the bottom half of the service fuse cabinet. The contractors were to provide these conductors which were to run from the studs through the current transformers down to the main switch. But Mr Messina did not expect them to do any further work on the service fuse cabinet because it was his task to terminate the conductors on the load side of the cabinet.

9. According to Mr Messina, whose evidence Wood J. accepted, Mr Bus requested that the supply be restored on the load side of the cabinet. This necessitated the installation of service fuses, so Mr Messina informed Mr Bus that he would telephone his supervisor with a view to having the fuses brought to the job. Mr Messina, who had been on an aluminium ladder in front of the switchbox and service fuse cabinet, came down the ladder and told Mr Bus that he was going to telephone his supervisor. At that time Mr Bus was taping a piece of cable to be used for the installation of the main earth conductor. When Mr Messina left to make the telephone call from the office of the factory foreman at approximately 3.15 p.m., that cable had not been threaded through the wooden panel immediately below the service fuse cabinet. The contractors also had to run cables, which had been connected by the Council to the bottom terminals of the service fuse cabinet, through the panel to the main switch. The Council had to install new meters and the contractors were to carry out some re-wiring.

10. Wood J. found that no further precautions were taken to insulate or cover the live incoming terminals at the top of the service fuse cabinet - the cover was not placed in position - and no additional warnings were given.

11. While Mr Messina was out of the room, Mr Bus climbed the ladder and started to run the earthing cable to the main earth conductor which was behind the wooden panel below the service fuse cabinet. One end of this earthing cable was to be sweated onto the main earth conductor behind the wooden panel and the other end was to be connected by Mr Messina to the main neutral bar at the bottom of the service fuse cabinet.

12. In order to carry out this operation it was necessary for Mr Bus to draw the earthing cable through a hole in the wooden panel just below the service fuse cabinet into the space behind the panel. Wood J. found that, in order to carry out this operation, Mr Bus stood with one foot on the second highest rung of the aluminium ladder and the other on the switchboard below the panel. In the course of the operation Mr Bus was electrocuted. His Honour found that Mr Bus placed his left hand behind the panel and stretched his right hand above him, possibly in order to get a better grip, to a point where he inadvertently made contact with one of the live terminals at the top of the service fuse cabinet. Mr Dickison described the contact in this way:
"His right hand was gripping one of the live
terminals in the box."
his left hand coming into contact with the main earth conductor is not clear from the evidence. All that matters is that a complete circuit was made and a fatal shock received.

13. The appellant's case at the trial was that the deceased's death was due to negligence on the part of the Council in reconnecting the power supply before all the work in the switchroom was completed, or, alternatively, in the failure of Mr Messina to fix the fillets and cover to the service fuse cabinet before he left the room to make the telephone call to his supervisor.

14. Expert evidence was called by both parties. Mr Dickison and Mr Messina gave evidence as to the frequency with which electricians worked in proximity to electrically charged apparatus and of the working practices adopted in such situations. Mr Dickison said that it was common practice for electricians to work on a switchboard with live terminals that are exposed while work proceeds and that it was part of the competence of an electrician to consider how he would carry out the task and avoid contact with the live terminals. On the other hand, Mr Laudams, an electrical design engineer, considered that it was good practice to defer connecting the mains power at the point of external attachment until the end of the work on the service fuse cabinet, though he agreed that sometimes work was done on part of a switchboard while power was connected to another part of that switchboard. He considered that it was bad practice to leave the terminals uncovered at any time and thought that little time or effort was involved in covering up the terminals. Mr Osman, a consulting electrical engineer, like Mr Laudams, considered that in a case such as the present there were two proper courses. First, if the connections were made to the incoming side of the cabinet and the work had not been completed within the cabinet, then the power should have been cut off until proper connections were made. Secondly, if the power supply was on for some reason, then the service fuse cabinet should have been covered and sealed. Again, like Mr Laudams, he considered that it was not good practice for Mr Bus to have attempted to do what he did standing on the second top rung of an eight foot ladder in close proximity to the live terminals. However, Mr Osman was of the view that in the circumstances it was enough for Mr Messina to warn the contractors that the terminals were charged. Mr Jobson, another consulting electrical engineer, was of opinion that it was good practice to leave the cover off the service fuse cabinet, while the terminals were live, until the completion of the connections to that service, provided the connections were made during working hours while some authorized person was in attendance.

15. Wood J. accepted that it would have been possible to postpone the restoration of power until all the work was finished, to have fitted the fillets to the service fuse cabinet as soon as the lines were activated, and for Mr Messina to have attached the cabinet door before he left to make the telephone call. Had the first or third of these steps been taken the accident would not have occurred. Had the second been taken, the accident might not have occurred. However, the primary judge considered that the decision of this Court in Sydney County Council v. Dell'Oro [1974] HCA 47; (1974) 132 CLR 97 required that attention be paid to the precise circumstances of the job and to what is common and proper practice for tradesmen in such a situation.

16. His Honour noted that the only persons with access to the switchroom at the relevant time were competent and experienced electrical tradesmen who were aware of the risks present. Moreover, his Honour had regard to the expert evidence which satisfied him that it was not unusual for private electrical contractors to work in the near vicinity of council technicians who were carrying out work on electrically charged council apparatus. He was also satisfied that the danger presented was one with which an electrical tradesman should have been accustomed to deal in the course of his trade.

17. According to the primary judge, in these circumstances where all knew they were working in the presence of live equipment, it was reasonably to be expected that each would observe ordinary safety practices and exercise care not to come into contact with a live terminal. His Honour concluded that Mr Messina had no reason to suspect that while he was absent making the telephone call either Mr Bus or Mr Dickison would climb the ladder and work in a position exposing himself to contact with the live incoming terminals.

18. His Honour considered that the weight of expert opinion supported a finding that no additional precaution was required. Messrs Dickison, Osman and Jobson agreed that working within close proximity to electrically charged apparatus was a common experience for electrical tradesmen and one with which they were accustomed and trained to deal. And Messrs Osman, Laudams and Jobson agreed that in good practice electrical tradesmen should not place themselves in an unstable position when working within touch of an uninsulated live terminal. Further, Messrs Osman, Messina and Jobson said that, though it was good practice to cover and seal off apparatus exposing live terminals at the end of a work session, this was not necessary while work was continuing on the apparatus, even if interrupted for a brief time as long as there were no unauthorized persons in the area. This expert evidence persuaded Wood J. to find that neither the restoration of power, which merely brought about a situation with which a qualified electrician was accustomed to deal, nor the failure to insert the top fillet and attach the cover during the short period of Mr Messina's absence, amounted to negligence.

19. The findings of fact made by the primary judge were challenged in the Court of Appeal. The Court of Appeal, as appears from the reasons for judgment of Hope J.A., concluded that the findings of fact required some modification. Hope J.A. pointed out that there was no evidence that a skilled tradesman would be accustomed to deal with the particular problem that faced Mr Bus, namely, connecting an earth wire in an awkward position at a height out of reach in the near vicinity of a live terminal. His Honour also observed that, while it was reasonable to expect experienced tradesmen to observe safety standards in proximity to live terminals, that did not allow for the consequences of inadvertence on the part of a tradesman. And his Honour found that Mr Messina:

"should have known, not that the earth wire would
be connected during his absence, but that it might
be. He would also know that if the work was done,
it would be necessary for either Bus or Dickison to
climb a ladder and to work in a position not far
from the exposed live terminals."

20. On these findings, one might have expected that the appeal would be allowed, as McHugh J.A. thought it should be. Hope J.A. said that, had it not been for Dell'Oro, negligence might well have been found against the Council. Priestley J.A. agreed that but for Dell'Oro the appeal would have been upheld on the basis of breach of duty. But both their Honours considered that Dell'Oro required that the appeal be dismissed. This was because they viewed Dell'Oro as affirming the proposition that expert tradesmen are expected to look after their own safety in relation to known risks which are part and parcel of their daily work. In particular, their Honours regarded the case as deciding that qualified electrical tradesmen, knowing that they are working near a live terminal, are to be expected to take appropriate precautions to avoid the obvious danger presented by a live terminal. Although the decision recognized that expert evidence might establish particular circumstances entitling such a tradesman to rely upon someone else to take care for his safety, their Honours considered that there was no such evidence in the present case.

21. On the other hand, McHugh J.A. saw Dell'Oro as a decision on breach of duty, rather than as a decision turning on the absence of a duty of care. His Honour stated that breach of duty is a question of fact, though the question whether there is any evidence of breach of duty in a negligence action has traditionally been described as a question of law. His Honour characterized the statements made in Dell'Oro as observations concerning a particular factual category which did not amount to principles of law having the force of binding precedent: Conkey & Sons v. Miller (1977) 51 ALJR 583, at p 585; 16 ALR 479, at p 485.

22. The facts in Dell'Oro are similar to, but not the same as, those in the present case. An unlicensed contractor did work upon an electrical wiring system. An officer of the county council went to test that work. In the course of testing the work he removed the cover from a links box which contained uninsulated copper links carrying high voltage electricity. The box was normally locked and sealed, as was the room in which it was located. The council officer on leaving the room for a purpose connected with the work pointed out that the fuse board immediately below the links box had become displaced and asked that it be relocated. The contractor was electrocuted as he endeavoured to relocate the fuse board. The council officer believed that the contractor was a fully competent and licensed electrician. No expert evidence was adduced as to proper practice. The Court (with McTiernan J. dissenting) held that, in the absence of expert evidence that the leaving of the links uncovered was a departure from usual practice or exposed even a qualified person to a risk which was not part of his daily work, it was not open to the jury to find a breach of duty.

23. The majority in the Court of Appeal, by concentrating on the judgment of Jacobs J., extracted more from Dell'Oro than an analysis of the majority judgments properly yields. His Honour reached the conclusion that there was no breach of duty by closely confining the relevant duty of care. Thus, in speaking of breach of duty, his Honour said (at p 120):

"(T)hat inquiry remains subordinate to the general
inquiry whether the act or omission shows a lack of
that reasonable care which the relevant duty of
care imposes".

"When the duty of care is correctly formulated
in the instant case, it becomes clear that there
was no evidence of a breach of duty fit to be
considered by the jury."

"It is an expert field and before it could be said
that in the context of that expert field the
leaving of links exposed is unreasonable some
evidence would be necessary that to do so was a
departure from usual practice or exposed even a
qualified man to a risk which was not part and
parcel of the work which he did day by day."

"There was no evidence that the danger was unusual
or that it was not apparent to the deceased as an
expert. In these circumstances it was in my
opinion not open to a jury in the absence of
specific evidence on the matter to find that the
leaving of the links uncovered was something which
showed a lack of reasonable care for the safety of
the deceased man."

24. However, neither Mason J. nor Stephen J. agreed with the enunciation of the relevant duty of care by Jacobs J. Mason J., though agreeing with the reasons given by Jacobs J. for the conclusion that in the circumstances there was no evidence of lack of reasonable care towards the deceased on the part of the council officer, a Mr Briody, stated (at p 112) that the real issue was:

"as to the standard of care which ought to have
been expected of Briody having regard to his
relationship with the deceased in the circumstances
which prevailed".

"the precise manner in which the deceased met his
death was not foreseeable. The means by which the
deceased chose to suspend the fuse board above the
meters, by suspending them by wires from the steel
pipes, was an entirely unexpected mode of
compliance with Briody's request."

25. Stephen J. stated (at p.111) that for the reasons given by Jacobs J. "the evidence did not disclose the absence of reasonable care on the part of the appellant" and his Honour expressed his agreement "with all that has been said by my brother Mason in separate reasons".

26. Barwick C.J. also emphasized (at p.100) that it was not foreseeable that a qualified tradesman would place himself in fatal proximity to the conductors. Nothing which the deceased had to do was likely to take the deceased into a dangerous relationship with the conductors.

27. In the result there was not majority support in Dell'Oro for Jacobs J.'s formulation of the duty of care and, accordingly, there was not a majority for the further proposition that the duty of care, correctly formulated, necessarily determined that there was no breach of duty. It seems that Jacobs J. was alone in his formulation of the duty of care, though there are passages in the judgment of Barwick C.J. that might tend to provide some support for his view. Once it is accepted that the decision turns on failure to observe the standard of care appropriate in the particular circumstances of the case, rather than on the precise scope of the duty of care, then it is impossible to regard the case as formulating a statement of principle which binds this Court in such a way as to compel a decision for the Council in the present case. If, accordingly, we view Dell'Oro as a decision on its own facts, then the present case is distinguishable on the ground that Mr Messina ought to have known that the earthing cable might be connected during his absence. And he would have known that if that work was to be done, it would be necessary for Mr Bus or Mr Dickison to climb a ladder and work not far from the exposed terminals.

28. Having recognized that the decision with respect to negligence in Dell'Oro was one based upon the particular facts of that case and that the facts of the present case, though similar, are not identical, it necessarily follows that the Court of Appeal was not bound, as Hope and Priestley JJ.A. had thought, to follow Dell'Oro in the present case. In Teubner v. Humble [1963] HCA 11; (1963) 108 CLR 491, Windeyer J. observed (at p 503):

"(D)ecisions on the facts of one case do not
really aid the determination of another case.
Observations made by judges in the course of
deciding issues of fact ought not to be treated as
laying down rules of law. Reports should not be
ransacked and sentences apt to the facts of one
case extracted from their context and treated as
propositions of universal application ... That
would lead to the substitution of a number of rigid
and particular criteria for the essentially
flexible and general concept of negligence."

29. Mr Handley Q.C. challenged the correctness of the finding that Mr Messina ought to have known that the earthing cable might be connected during his absence, but in our view that finding is amply justified. When Mr Messina left the switchroom, Mr Bus was working on the earthing cable. It was obvious that Mr Bus would connect the cable some time that afternoon while the incoming terminals were live. Although the point of connection of the earthing cable was not adjacent to those terminals, the task of connecting it would require the contractor to mount the eight foot aluminium ladder in the constricted space of the switchroom. The aluminium ladder did not provide a stable foundation and the task of connecting the cable behind the wooden panel might well require some effort endangering the stability of the person on the ladder. These elements in the situation obviously exposed the contractor to the danger of losing his balance or of finding himself in a position in which inadvertently, in using his hand for support, he might come into contact with a live terminal. This evidently is what happened. As Hope J.A. stated, the relevant risk was touching a terminal through inadvertence. The effective protection against that risk was the placing of the cover on the cabinet, an action which could only have been carried out by Mr Messina.

30. It was suggested that Mr Bus should have placed the cover of the service fuse cabinet in position before seeking to connect the earthing cable. But, as mentioned earlier, the cover was the property of the Council and Mr Bus had no authority to use it. It was for Mr Messina to place it in position and in the circumstances his failure to do so amounted to a want of reasonable care for the safety of Mr Bus. If Mr Bus had attempted to replace the cover he would arguably have exposed himself to dangers similar to those he faced in seeking to connect the earthing cable. The same consequences of inadvertence may have followed.

31. Since the decision in Dell'Oro the law has progressed by placing an increased emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom a duty of care is owed. That possibility is now recognized as being relevant to the standard of care owed by an employer to an employee and as well generally in situations in which a duty of care exists. As was observed by Mason, Wilson, Brennan and Dawson JJ. in McLean v. Tedman [1984] HCA 60; (1984) 155 CLR 306, at pp 311-312:

"(I)t is not an acceptable answer to assert that an
employer has no control over an employee's
negligence or inadvertence. The standard of care
expected of the reasonable man requires him to take
account of the possibility of inadvertent and
negligent conduct on the part of others. This was
acknowledged even in the days when contributory
negligence was a common law defence ... The
employer is not exempt from the application of this
standard vis-a-vis his employees ... (T)he
possibility that the employee will act
inadvertently or without taking reasonable care may
give rise to a foreseeable risk of injury. In
accordance with well settled principle the employer
is bound to take care to avoid such a risk."

32. Having reached this conclusion, we do not need to consider the appellant's alternative case of negligence resting on the claim that the Council was negligent in failing to disconnect the mains supply while work was still proceeding or about to proceed in the vicinity of the service fuse cabinet.

33. We would allow the appeal, set aside the orders of the Court of Appeal and the primary judge, allow the appeal to the Court of Appeal and enter a verdict for the appellant, and remit the matter to the Supreme Court for the assessment of damages.

GAUDRON J. The relevant facts are set out in the joint judgment of Mason C.J., Deane, Dawson and Toohey JJ. in which their Honours conclude that failure to place the cover on the fuse cabinet constituted negligence on the part of the respondent. I am of the same opinion but my opinion proceeds from a different view of the decision in Sydney County Council v. Dell'Oro [1974] HCA 47; (1974) 132 CLR 97. It is necessary that I set forward that view and explain the basis of my conclusion.

2. The facts in Dell'Oro were very similar to the facts in the present case. In both cases an employee of the County Council and an electrical tradesman were working in physical proximity, each separately performing work in connection with the same electrical equipment. In both cases the equipment was uncovered and the tradesman was performing work upon or in the near vicinity of that equipment at a time when a live current was passing through it. In Dell'Oro it was held that, in the absence of expert evidence that there was a departure from usual practice or that the acts or omissions in question exposed a qualified electrician to a risk which was not part of his ordinary work, there was no evidence of a breach of duty of care.

3. The decision in Dell'Oro, expressed by reference to the absence of expert evidence, is explicable on either of two bases. The evidence might be necessary to establish circumstances in which there was a foreseeable risk of injury giving rise to a duty of care. On the other hand, the evidence might be necessary to establish what precautions a reasonable person would take to avoid the risk of injury, i.e. to establish the standard of care.

4. Neither in Dell'Oro nor in the present case is there room to debate the standard of care. Covering the equipment was a simple and effective measure by which the risk would have been eliminated. A cover was present as part of the cabinet to house the equipment. Placing the cover over the equipment involved no interruption (other than that involved in the act of covering) to the activities of the Council or its employees. Both in Dell'Oro and in this case, if there was a foreseeable risk of a relevant injury by reason of the equipment being uncovered, a reasonable person in the position of the Council's employee would cover it. Thus, the principle to be discerned from Dell'Oro is necessarily to be identified in terms of the duty of care.

5. In my view the principle to be discerned from Dell'Oro, expressed in the terms of the decision, is this: where electricians are working on the same electrical equipment the duty of care owed by one to the other extends only to those foreseeable risks which will not be avoided by the pursuit of usual practice and which are over and above those risks which a qualified tradesman is accustomed to deal with in the ordinary course of his work. The rationale for the exclusion of risks to which a qualified tradesman is ordinarily exposed must lie in the assumption that those risks will be avoided by the adoption of tradesmanlike work practices. Accordingly, I would prefer to express the relevant foreseeable risk giving rise to a duty of care as between electricians working on the same electrical equipment as a risk of injury that would not be avoided by the pursuit of usual and tradesmanlike practices.

6. On the above view, if there is a foreseeable risk of injury, even if usual and tradesmanlike practices are followed, there is a duty of care to take reasonable precautions to avoid that risk. Whether or not there is a foreseeable risk of that nature may depend on expert evidence as to usual and tradesmanlike practices. But it will not so depend if the evidence otherwise discloses circumstances in which a risk of that nature is foreseeable.

7. In the present case the electrical equipment upon which Mr Bus was working was so located as to necessitate Mr Bus placing himself in an awkward position in a confined space. It was foreseeable that in those circumstances there was a risk of his inadvertently coming into contact with the live equipment. That risk existed even if Mr Bus followed usual and tradesmanlike practices.

8. Where inadvertence, even inadvertence amounting to contributory negligence, is itself a foreseeable possibility the duty of care extends to the foreseeable risk of injury by inadvertence. So much is clear from McLean v. Tedman [1984] HCA 60; (1984) 155 CLR 306, at p 311. In the present case inadvertence was a foreseeable possibility and there was a foreseeable risk of injury by inadvertence even if usual and tradesmanlike practices were followed. Accordingly, there was a duty to avoid that risk by covering the equipment in the vicinity of which Mr Bus was working. That not having been done, there was a breach of the duty of care owed by the Council to Mr Bus.

9. The appeal should be allowed. The orders of the Court of Appeal and of the primary judge should be set aside. There should be a verdict for the appellant. The matter should be remitted to the Supreme Court of New South Wales for the assessment of damages.

ORDER

Set aside the order of the Court of Appeal. Order that the appeal to that Court be allowed with costs, that the orders of Wood J. be set aside and that in lieu thereof there be judgment for the appellant with costs.

Remit the matter to the Supreme Court of New South Wales for the assessment of damages.