ACQ Pty Ltd v Cook - [2008] NSWCA 161

No judgment structure available for this case.

Reported Decision: 72 NSWLR 318

Appeal Outcome:
Special leave application granted by the High Court 1 May 2009 (S499/2008 & S500/2008)
ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 (S107/2009) Appeal dismissed by the High Court 5 August 2009 (S108/2009) Appeal dismissed by the High Court 5 August 2009

New South Wales

Court of Appeal

CITATION: ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook [2008] NSWCA 161

HEARING DATE(S): 7-8 April 2008

JUDGMENT DATE:
16 July 2008

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Campbell JA at 3

DECISION: Pilot of aircraft owes no duty of care, concerning manner in which he flies, to an electricity worker who is nowhere near the place where the flying occurs, but who is a type of person likely to come to the scene if negligent flying brought a power line down. Section 10(1)(d) Damage by Aircraft Act (DAA) extends to indirect or consequential results of an impact that falls within s 10(1)(a), (b) or (c). Aircraft owner and operator liable to plaintiff under DAA for injury he suffered in consequence of collision between aircraft and power line. Contributory negligence of plaintiff not a partial defence to an action under s 10(1)(d) DAA. No voluntary assumption of risk by plaintiff. No breach of employer’s duty of care by plaintiff’s employer.

CATCHWORDS: TORT – negligence – duty of care – linesman employed by power company injured by electric shock from power line dislodged from supporting pole when struck by aircraft – whether duty of care owed by employer – whether duty of care owed by pilot of aircraft – whether operator of aircraft vicariously liable for actions of pilot – whether direct application of notion of proximity is a safe guide to when duty of care exists – whether causal connection between impact and injuries – whether finding of causation is consistent with finding of no duty - AVIATION – Statutory liability of owner and operator of aircraft for personal injury caused by aircraft in flight – s 10 and s 11 Damage by Aircraft Act 1999 (Cth) – construction of expression “caused by” in s 10(1)(d) Damage by Aircraft Act – whether narrow construction of provision appropriate – whether common law concept of causation applicable – whether voluntary assumption of risk available as defence to action for damages under s 11 – whether contributory negligence available as complete defence or defence to action for damages under s 11 – whether circumstances falling within s 10(1) of Act amount to a “wrong” within s 8(a) Law Reform (Miscellaneous Provisions) Act 1965 – whether s 5A, s 5R, s 5S Civil Liability Act 2002 applicable to proceedings – circumstances in which defence of contributory negligence available at common law in respect of action to recover damages for injury, loss, damage or destruction caused by a wilful act of the defendant – whether owner and operator of aircraft can recover contribution from employer of linesman towards their liability to pay damages under the Act – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 - STATUTORY INTERPRETATION – Second reading speech – aid to construction – s 15AB Acts Interpretation Act 1901 (Cth) - JURISDICTION, PRACTICE AND PROCEDURE – Jurisdiction – Federal jurisdiction – claim for damages arising under Commonwealth Act – s 76(ii) Constitution – s 39(2) Judiciary Act 1903 (Cth) – whether provisions as to contributory negligence under State legislation applicable by State court exercising federal jurisdiction – Law Reform (Miscellaneous Provisions) Act 1965 – Civil Liability Act 2002 – s 79 Judiciary Act 1903 (Cth)

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth)
Air Navigation Act 1920
Civil Aviation (Damage by Aircraft) Act 1958 (Cth)
Civil Liability (Personal Responsibility) Act 2002
Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Compensation to Relatives Act 1897
The Constitution
Contributory Negligence (Statutory Duties) Act 1945
Damage by Aircraft Act 1952
Damage By Aircraft Act 1963 (Tas)
Damage By Aircraft Act 1964 (WA)
Damage by Aircraft Act 1999 (Cth)
Interpretation Act 1987
Judiciary Act 1903 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946
Law Reform (Miscellaneous Provisions) Act 1965
Statutory Duties (Contributory Negligence) Act 1945
The Rome Convention
Trade Practices Act 1974 (Cth)
Workers Compensation Act 1987
Wrongs Act 1958 (Vic)

CATEGORY: Principal judgment

CASES CITED: Australian Guarantee Corporation Ltd v Commissioners of the State Bank of Victoria [1989] VR 617
Bernstein v Skyviews & General Ltd [1978] 1 QB 479
Bhambra v Roet [2003] NSWCA 393
Bialkower v Acohs Pty Ltd (1998) 83 FCR 1
Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Reports 81-830
Bradley v Waterhouse (1828) M & M 154, 173 ER 1114, 3 Car & P 318, 172 ER 438
Butterfield v Forrester (1809) 11 East 60, 103 ER 926
Central Railway Co of Venezuelan v Kisch (1867) LR 2 HL 99
Commissioner for Railways v Schier [1964] NSWR 880
Daley v Gypsy Caravan Co Pty Ltd [1966] 2 NSWR 22
Davis v Nolras Pty Ltd [2005] NSWCA 379
Derry v Peek (1888) 14 App Cas 337
Donoghue v Stevenson [1932] AC 562
Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367
Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122
Glen v Korean Airlines Co Ltd [2003] EWHC 643 (QB); [2003] QB 1386
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Grant v Australian Knitting Mills Ltd [1936] AC 85
Hampic Pty Ltd v Adams [1999] NSWCA 455
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; (2002) Aust Torts Reports 81-673
Lane v Holloway (1968) 1 QB 379
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494
Monie v Commonwealth of Australia [2007] NSWCA 230
O’Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225
Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Piro v W Foster & Co Ltd [1943] HCA 32; (1943) 68 CLR 313
Prestige Property Services Pty Ltd v Choi [2007] NSWCA 363
Proctor v Jetway Aviation [1982] 2 NSWLR 264
Quinn v Leathem [1901] AC 495
Scholfield v Earl of Londesborough [1896] AC 514
Southgate v Commonwealth of Australia (1987) 13 NSWLR 188
State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
State Rail Authority of NSW v Watkins [2001] NSWCA 405
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514

TEXTS CITED: Clerk & Lindsell on Torts, 19th ed (2006) Sweet & Maxwell
F Trindale & P Cane The Law of Torts in Australia, 4th ed (2007) Oxford University Press
J C Campbell, “Contribution, Contributory Negligence and Section 52 of the Trade Practices Act” (1993) 67 ALR 87
J G Fleming, The Law of Torts, 9th ed (1998) LBC Information Services
P Vout (ed), Torts: The Laws of Australia, 2nd ed (2007) Thomson Legal & Regulatory Group

PARTIES:
40302/07
ACQ Pty Limited - Appellant
Gregory Michael Cook - First Respondent
Country Energy (formerly known as Northpower) - Second Respondent
40303/07
Aircair Moree Pty Ltd - Appellant
Gregory Michael Cook - First Respondent
Country Energy (formerly known as Northpower) - Second Respondent
40363/07
Gregory Michael Cook - Appellant
Country Energy (formerly known as Northpower) - Respondent
40454/07
Country Energy (formerly known as Northpower) - Appellant
Michael Gregory Cook - First Respondent
Aircair Moree Pty Limited - Second Respondent

FILE NUMBER(S): CA 40302/07; 40303/07; 40363/07; 40454/07

COUNSEL: B Walker SC; G Curtin; Y Cachia (ACQ Pty Ltd & Aircair Moree Pty Ltd)
P Menzies QC; G Giagios (Gregory Cook)
M Elkaim SC; P Khandhar (Country Energy)

SOLICITORS: Riley Gray-Spencer Lawyers, Sydney (ACQ Pty Ltd & Aircair Moree Pty Ltd)
Whitelaw McDonald, Erina (Gregory Cook)
Turks Legal, Sydney (Country Energy)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4202/04

LOWER COURT JUDICIAL OFFICER: Johnstone DCJ

LOWER COURT DATE OF DECISION: 14/5/07

CA 40302/07
CA 40303/07
CA 40363/07
CA 40454/07
DC 4202/04

BEAZLEY JA
GILES JA
CAMPBELL JA
16 JULY 2008

ACQ PTY LIMITED v GREGORY MICHAEL COOK

AIRCAIR MOREE PTY LTD v GREGORY MICHAEL COOK

GREGORY MICHAEL COOK v COUNTRY ENERGY (FORMERLY KNOWN AS NORTHPOWER)

COUNTRY ENERGY (FORMERLY KNOWN AS NORTHPOWER) v GREGORY MICHAEL COOK

Judgment

1 BEAZLEY JA: I agree with Campbell JA.

2 GILES JA: I agree with Campbell JA.

3 CAMPBELL JA:

4 This is a combined hearing of four appeals relating to verdicts and orders made by his Honour Judge Peter Johnstone in the District Court on 14 May 2007. Because different parties play different roles in these various appeals, I will refer to the parties by name rather than by their role in the proceedings.

The Decision Below

5 The plaintiff in the court below, Mr Gregory Cook, was a linesman employed by NorthPower. Country Energy was formerly known as NorthPower, and I will refer to it by its former name. On 28 December 2000 Mr Cook was very seriously injured through receiving an electric shock from a power line.

6 ACQ Pty Limited (“ACQ”) owned a particular light aircraft. That aircraft was operated by Aircair Moree Pty Ltd (“Aircair”).

7 In the very early morning of 28 December 2000 that aircraft was being used to carry out aerial spraying of a cotton field. The cotton field had a power line passing over it. At its lowest point the line was about 6.2m above the ground. The pilot of the aircraft, a Mr Stubbs, was an employee of Aircair. He carried out the spraying by flying underneath this power line.

8 On the tenth spraying run of the day the aircraft was flown underneath the line, but at a height insufficient to avoid colliding with it. The collision sheared off the top 150mm of the tailfin of the aircraft, and caused the line to be dislodged from one of its supporting poles. That in turn caused the line to drop. The trial judge found:

“It remained suspended, swinging over the field, but at a height that at the point of Mr Cook’s accident was then only 1.5m above the ground, at about throat level.”

9 NorthPower was notified of the incident. It sent Mr Cook and another linesman, Mr Buddee, to deal with the situation. They decided to isolate the line by de-energising it from the nearest links site, which was some 7kms further up the line. Mr Buddee drove towards the links site. Mr Cook then approached the line with a view to assessing what damage had been occasioned to the line and the supporting pole, to determine what repair work might be required. Some minutes later he received an electric shock from the line. The trial judge found:

“I am satisfied that Mr Cook never actually came into contact with the conductor as the evidence is that if he had done so, that would probably have resulted in his death. More probably than not, what occurred was a phenomenon known as ‘flashover’, whereby electricity passed across a charged ionised field, or corona effect, around the live conductor. Some part of Mr Cook’s body must have penetrated this ionised electric field resulting in electricity crossing the air gap to his body, and then to the ground. Such a flashover had an increased propensity to occur in conditions of humidity such as prevailed at this site, where the cotton crop and surrounding grain grasses were saturated. Mr Cook had travelled across the muddy field over wet cotton bushes to reach the point where he was injured.”

10 The trial judge found that Mr Cook’s injuries were caused by negligence on the part of NorthPower, and also by negligence on the part of Mr Stubbs. Mr Stubbs was not sued, but Aircair was sued on the basis that it was vicariously liable for his negligence.

11 Mr Cook also sued Aircair and ACQ on a statutory cause of action arising under the Damage by Aircraft Act 1999 (Cth) (“DAA”). It provides:

“ 10 Liability for injury, loss etc.

(1) This section applies if a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction caused by:

(a) an impact with an aircraft that is in flight, or that was in flight immediately before the impact happened; or

(b) an impact with part of an aircraft that was damaged or destroyed while in flight; or

(c) an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or

(d) something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c).

(2) If this section applies, the following people are jointly and severally liable in respect of the injury, loss, damage or destruction:

(a) the operator of the aircraft immediately before the impact happened;

(b) the owner of the aircraft immediately before the impact happened;

…

11 Recovery of damages without proof of intention, negligence etc.

Damages in respect of an injury, loss, damage or destruction of the kind to which section 10 applies are recoverable in an action in a court of competent jurisdiction in Australian territory against all or any of the persons who are jointly and severally liable under that section in respect of the injury, loss, damage or destruction without proof of intention, negligence or other cause of action, as if the injury, loss, damage or destruction had been caused by the willful act, negligence or default of the defendant or defendants.”

12 The trial judge held that the circumstances in which Mr Cook was injured fell within the ambit of section 10 DAA and that both ACQ and Aircair were liable to pay damages to Mr Cook pursuant to section 11 DAA.

13 ACQ and Aircair raised a defence of voluntary assumption of risk. The trial judge rejected that defence, on the facts. There was thus no need for the judge to decide whether voluntary assumption of risk was available, as a matter of law, as a defence to an action for damages under section 11 DAA.

14 The trial judge held that a defence of contributory negligence was not available to Aircair and ACQ concerning their liability under DAA. In that circumstance, he evidently took the view that there was no point in assessing the extent to which the damages that Mr Cook could recover from Aircair for negligence would be reduced on account of Mr Cook’s contributory negligence, as the judge did not make any such assessment.

15 The trial judge held that, as between Mr Cook and NorthPower, Mr Cook had engaged in contributory negligence, such that the damages Mr Cook could recover from NorthPower should be reduced by 40%.

16 Aircair and ACQ each sought indemnity or contribution from NorthPower under section 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 (the “1946 Act”). NorthPower also sought contribution, on that basis, from Aircair and ACQ. The trial judge held that contribution under the 1946 Act was recoverable only by one tortfeasor against another tortfeasor, that the liability of Aircair and ACQ under the DAA was not a liability as a tortfeasor, and hence Aircair and ACQ could not recover contribution from NorthPower towards their liability to pay damages under the DAA. However, because Aircair was a tortfeasor who had caused Mr Cook’s damage, NorthPower could recover contribution from it. The trial judge evidently took this view even though Aircair’s liability as a tortfeasor was not the liability in relation to which the judge entered a verdict against Aircair. The judge assessed the amount of that contribution at 50%.

17 The damages recoverable against NorthPower were assessed in accordance with section 151G Workers Compensation Act 1987 at $433,860.00. That sum was to be reduced by 40% for contributory negligence.

18 Damages against Aircair and ACQ were assessed in accordance with the Civil Liability Act 2002 (NSW) rather than in accordance with the common law. On that basis of assessment the trial judge arrived at a figure of $953,141.

19 The trial judge delivered reasons for judgment on 20 April 2007, in which he expressed his conclusions and gave his reasons concerning all the topics I have mentioned so far. However, he did not enter verdicts on that occasion. This was because he recognised the possibility that adjustments may need to be made to the assessments of damages by reason of section 151Z Workers Compensation Act. He therefore said:

“Given the findings I have made, it is in my view appropriate that the parties be given the opportunity to either reach agreement on the adjustments, and the verdicts to be entered as a consequence, or to make further submissions as to the proper application of the section.”

20 At a further hearing on 9 May 2007 counsel for ACQ and Aircair sought to re-open the question of whether ACQ and Aircair could recover contribution from NorthPower. Counsel sought to argue that contribution was available, by referring to some additional authorities relating to section 5(1)(c) 1946 Act, and also sought contribution pursuant to the general law independently of statute. The judge was not persuaded that the additional authorities made any difference. The cross-claim that ACQ and Aircair brought against NorthPower seeking contribution specifically sought contribution on the basis of the 1946 Act, and said nothing about seeking contribution under the general law. The possibility of there being contribution under the general law had not been mentioned at the earlier hearing. The trial judge declined to permit the case to be re-opened to explore contribution under the general law.

21 The trial judge held that, because neither ACQ nor Aircair had a right of contribution from NorthPower, there was no scope for the damages that Mr Cook could recover from ACQ and Aircair being reduced pursuant to section 151Z(2)(c) Workers Compensation Act.

22 Thus, the trial judge entered verdicts as follows:

· “For the plaintiff against Aircair Moree Pty Limited and ACQ Pty Limited for $953,141.00.

· For the plaintiff against Country Energy for $260,316.00.

· For Country Energy on its cross-claim against Aircair Moree Pty Limited for $130,158.00.

· For ACQ Pty Limited on the cross-claim brought by Country Energy.

· For Country Energy on the cross-claim brought by Aircair Moree Pty Limited.

· For Country Energy on the cross-claim brought by ACQ Pty Limited.”

Issues on the Appeal

23 On this appeal no party disputes the figures arrived at by the trial judge in assessing, using the two statutory regimes for calculation of damages contained in the Workers Compensation Act and the Civil Liability Act, the damages sustained by Mr Cook. The issues that were argued in the appeal relate to:

(i) Whether Aircair owed a duty of care to Mr Cook, and breached it.

(ii) Whether the construction of sections 10 and 11 DAA is such that, on the facts of this case, they gave a cause of action to Mr Cook against ACQ and Aircair.

(iii) Whether the judge was right in finding that Mr Cook’s injuries were caused by a breach of duty of Mr Stubbs, or by “something” that falls within section 10(1)(d) DAA .

(iv) Whether contributory negligence is available as a defence to any action brought pursuant to DAA .

(v) Closely related to the causation issue, whether the trial judge should have found that contributory negligence was a complete defence for both ACQ and Aircair pursuant to section 5S Civil Liability Act 2002 , or that Mr Cook had voluntarily assumed the risk of his injury.

(vi) If contributory negligence is available as a defence to an action under DAA , but is not a complete defence, what assessment of contributory negligence should be made.

(vii) Various related issues concerning whether ACQ and Aircair are entitled to contribution from NorthPower, including:

(a) whether contribution is recoverable under the 1946 Act by ACQ from NorthPower, in circumstances where ACQ is not a tortfeasor liable for the same damage;

(b) whether contribution is recoverable under the 1946 Act by Aircair from NorthPower, in circumstances where Aircair has been held to be a tortfeasor liable for the same damage, although the verdict entered against it is based on its liability under DAA rather than its liability as a tortfeasor;

(c) if contribution is recoverable under the 1946 Act by ACQ or Aircair from NorthPower, what contribution should be ordered;

(d) whether the trial judge should have permitted, or this Court should now permit, argument to be raised about whether contribution is available under the general law to a person who has a liability under DAA , from a tortfeasor whose negligence has caused the same damage;

(e) if such argument ought have been permitted, or is now permitted, what, if any, contribution is each of ACQ and Aircair entitled to recover under the general law from NorthPower.

(viii) Whether the trial judge was right in holding that NorthPower was entitled to recover contribution under the 1946 Act from Aircair, notwithstanding that he held that Aircair was not entitled to recover contribution under the 1946 Act from NorthPower.

(ix) Whether the trial judge was right in holding that section 151Z Workers Compensation Act did not operate to reduce the damages payable by either ACQ or Aircair.

(x) Whether the judge was right in assessing the liability of both ACQ and Aircair to give contribution to NorthPower at 50%. ACQ and Aircair assert that they should bear less than 50%, while NorthPower contends that Aircair should bear considerably more than 50%.

(xi) Whether the trial judge correctly found that NorthPower had breached its duty of care to Mr Cook.

(xii) What assessment should have been made of the contributory negligence attributed to Mr Cook concerning his claim against NorthPower? Mr Cook contends he should not have been found guilty of contributory negligence at all, or if he is guilty of contributory negligence that the proportion should have been considerably less than 40%. NorthPower contends that the proportion should have been considerably greater than 40%.

24 The cotton field that was being sprayed is field 19 at a rural property called “Milo”. That property is reached by travelling 20.8kms north of Moree on the Newell Highway, then 7kms west from the Newell Highway. Field 19 is crossed by an access road that runs in a north-south direction. The field was planted with cotton plants that were planted in rows 1 metre apart, with those rows running in a north-south direction. The cotton bushes were knee-high or more – some evidence put them as being 600mm tall, other evidence put them as being 750mm tall, and there is no basis for choosing between those figures. Individual bushes in a row were planted so that they grew into each other, giving any row the appearance of a low hedge. The rows had irrigation ditches between them. These are troughs or depressions in which water collects when the field is irrigated. The ground in profile had a crest and trough configuration, akin to corrugations spaced one metre apart.

25 The power line that traversed the field was a 22,000-volt line. It consisted of two separate conductors running parallel to each other. Those conductors were connected to insulators on the crossbeams of poles located in the field. One of those poles was located immediately adjacent to the access road, others were in the field. The line ran diagonally across the field from the northwest corner in a southeast direction. It ran at an angle of about 60º to the line of the rows of cotton bushes.

26 Mr Stubbs took off at 5:10am on 28 December 2000 from an airstrip about five miles from Milo for the purpose of conducting the spraying operations. Mr Stubbs did not give evidence at the trial, but some statements he made in a Bureau of Air Safety investigation and a WorkCover investigation were in evidence. His account was:

“On approaching the property of Milo I contacted irrigators to confirm spraying of field 19 which I am familiar with and its wire hazard. I commenced spray operations on which I came into contact with the overhead wire on about the tenth run. I then immediately contacted my operations manager concerning the incident and proceeded to Moree airport landing without further incident.”

27 In carrying out the spraying, Mr Stubbs was assisted by a “spotter”, Mr Matt James. Mr Stubbs described the spotter’s job as to:

“Keep an eye on weather conditions, put out ground markers to identify shape of the field and for any other information I require concerning ground activities.”

28 Aircair has stated that the wind speed at Milo at 5:30am was 13kms per hour. That wind was blowing roughly at right angles to the direction in which the power line ran.

29 The aircraft’s tailfin came into contact with the wire at about 5:30am. That timing is consistent with some automatic tripping devices having been activated in the line at 5:32am, but then resetting themselves.

30 A WorkCover inspector who investigated the accident, Mr Gary Mason, gave evidence that around 5:30am on the day of the impact “it would have been pretty dark because of daylight saving”. Apart from meteorological evidence that the sun rose at 6:01am that day, that was the only evidence about the light conditions at the time of the impact.

31 The contact occurred between the pole closest to the road, and the next pole west. One of the conductors was torn from its insulator on the cross arm of the pole closest to the road, breaking the end of the cross arm in doing so. Because it had been elevated by that pole, the conductor then hung low to the ground, but above the cotton growing under it. The other wire was torn from its insulator on the pole nearest the road, but came to rest on the cross bar of that pole, so did not drop.

32 Mr Greg Cartwright was a farm worker at Milo. He was in field 19 at this time, and heard the noise as the plane clipped the line. Mr Cartwright did not give evidence, but parts of a statement that he gave to Mr Mason were established through cross-examination.

33 Mr Cartwright’s account was:

“The Aircair Marker then told me that the plane had hit the powerline. I then went down and inspected what happened. The line was swinging across the field. I then rang up Don McKay to tell him what had happened. I then stayed with the line while Don McKay contacted NorthPower.”

34 Mr Don Mackay worked as a supervisor at Milo. Mr Mackay had died by the time of the trial, but a statement that he made on 15 January 2001 in the WorkCover inquiry was in evidence. Mr Mackay said that Mr Cartwright

“… told me that an airplane had hit the power line on field 19 and the line was down. I rang NorthPower about 6:20 am and informed them that the power line was down.”

35 A NorthPower report into Mr Cook’s injury puts the time that the call was received reporting that the line had been struck as being 6:04am. That account of the time is likely to be more accurate than Mr Mackay’s recollection.

36 The closest the evidence comes to a contemporaneous record of the terms of Mr Mackay’s telephone report appears in a facsimile that NorthPower sent to WorkCover on the day of the accident. It describes it as a “report of a wire brought down by an aircraft on a rural property 21.5kms north of Moree …”.

37 Some relevant parts of the operations of NorthPower around Moree were controlled from Port Macquarie. A NorthPower investigation report records:

“At 6.17 am, Greg Cook was called out by Port Macquarie Dispatch with Ray Buddee being called at 6.18 am. Both employees proceeded separately to the accident site near the house on the property “Milo”.”

38 Mr Buddee arrived at the property at about 6:45am, and parked his vehicle near the pole from which the wire had been torn. Mr Cook arrived shortly after. The day was fine, but there was almost complete cloud cover.

39 Mr Buddee’s statement, made on the day of the accident, about what happened before Mr Cook arrived was:

“Aircair arrived at site on other side of line and came over to me ducking under line, I told him I needed a Do and Charge signed before any work would commence. He went back to his truck and radioed in and I came over to him ducking under the line and we filled out the paperwork.”

“paperwork”

40 After Mr Cook arrived he or Mr Buddee “talked to Milo person that was there”. This person was Mr Cartwright. Mr Cartwright told Mr Buddee and Mr Cook that there may be some possible damage to the pole in the field, and that he had irrigated the section of the field that the lines were swinging over, so that it was wet. He described that portion of the field to Mr Cook as “sloppy”.

41 Another document in evidence records:

“Mr Cartwright suggested to Mr Buddee and Mr Cook that they use an aircraft to inspect the overhead distribution line and the power pole because of the muddy state of the field over which the overhead distribution line passed and in which the power pole was located.”

42 Mr Buddee and Mr Cook discussed what should be done. They decided between them that Mr Buddee would drive to the links site, 7kms up the line, and isolate the line. They agreed that Mr Cook would “walk the line”, to assess what damage had been occasioned to the conductor and the supporting pole, and thus to determine what repair work might be required. They set out on their respective tasks. Mr Cook entered the cotton field, walking towards the place where the plane had run into the line.

43 At this time Mr Mackay arrived on the scene. He saw one NorthPower vehicle driving away and the other parked near the power pole. Mr Mackay’s statement continued:

“As I was driving on the road north of Field 19, I seen a NorthPower worker walking in the field. He appeared to have lost his balance, one arm went up I don’t know which one, then there was a flash and bang a loud bang. With that he fell forward onto his face. I then turned and headed for the NorthPower Ute parked at the power pole. I then called the other NorthPower vehicle and told him that his partner was down. I ran across the field keeping away from the downed line. The injured worker was lying face down in mud.”

44 Mr Cook was unable to give any account of how the accident happened, as he has no memory of the day of the accident, or the two days before it.

45 Mr Buddee’s account is that as he was driving toward the links he:

“Got a radio call from someone saying NorthPower man get back here your man’s gone down. I turned around and got back there. When I got there I found a man out in the field who told me that Greg had touched the line and was lying face down in the mud. I radioed PanPan to Port Control and told them to turn off supply, and told another person to stay by the truck and let us know when it was off.”

“other person”

46 Mr Cartwright’s account of events after Mr Buddee had driven off towards the links was:

“I then asked Cookie if he was right because it was the end of my shift. I then drove around to the shed. When I was back at the shed getting ready to leave Don called me on the two-way to get back because there was a man down. When I got back to the field Don was out with Cookie telling me, ‘We have got to do something’. At that stage the other NorthPower worker turned up and said, ‘The power is still on.’ He told me to stand by the radio while he went in to help Don and to confirm to them when the power had been turned off.”

47 Mr Buddee ran to where Mr Cook was lying in the field, cleaned his mouth and face of mud, found that there was no breathing or pulse, and gave him cardiopulmonary resuscitation until pulse and breathing were restored. In the course of this an ambulance and senior people from NorthPower were summoned by mobile phone. The place where Mr Cook fell was approximately 65m from the place his truck was parked.

48 A NorthPower internal report on the accident, dated 27 February 2001, gives a somewhat fuller account of Mr Buddee’s version of the conversation between himself and Mr Cook:

Ø “They were aware the cotton field was very wet and “walking the line” would be hard going.

Ø They understood the line was alive.

Ø The low wire did not appear to be blown out sideways or moving about.

Ø They realised one of them should stay in the vicinity in case a farm worker approached.

Ø They needed to find out exactly where the wire had been contacted by the plane, the extent of that damage to the wires and the next pole so they could plan and carry out the repair work safely.

Ø They decided that Ray Buddee would travel to the nearest set of pole mounted isolating links No 1292 located about 7 km back towards Moree in order to isolate supply from the faulty section and Greg Cook would start to “walk the line” to visually check for physical damage to the conductors and to adjacent pole No 82 120101115.

Ø Ray Buddee drove off to do the switching and Greg Cook entered the cotton field to inspect the line.”

49 NorthPower described the situation the men encountered as:

“Both conductors probably damaged and with the potential to break completely and drop or recoil or have a strand break, unravel and stick out some distance.

Mild cross breeze able to move the 567 m span no more than 0.5 metres to one side but also back and forth if some variation in wind speed was occurring.”

50 The NorthPower internal report also attributes to Mr Mackay the observation that Mr Cook:

“… was having considerable difficulty walking in the recently irrigated cotton field. Watching Cook proceed he noted that he got into what must have been a particularly boggy patch and was having great trouble removing his feet from the mud. At this stage Cook appeared to overbalance and throw his arms up in the air and Mackay stated that he saw a flash and Cook immediately fell out of sight, screened by the 750 mm high cotton bushes.”

51 The NorthPower internal report states that when Mr Buddee returned to the site he:

“… quickly made a Pan Pan Pan call to Port Macquarie System Control for immediate isolation of the entire Gingham Road Feeder. Mackay had already called for an ambulance.

The Pan Pan Pan call was received at 6.56 am and the feeder was isolated from supply at 6.57 am by Port Macquarie System Control.

By this time another farm worker had arrived and Buddee asked him to get more help.

Mackay was with Cook at the accident site when Buddee arrived back. Buddee made his way across the rows of cotton as quickly as he could towards Mackay and Cook. Mackay noticed Buddee getting close to the low wire as he approached and warned him to move away from it. Cook was face down in the mud when Buddee reached him. He was lying about one metre to the side of the low hanging wire.”

Condition of the Field

52 The field was being irrigated just before Mr Stubbs started spraying. Photographs of the field taken later on the day of the accident show that even at that time water was still lying in the irrigation ditches between the rows.

53 While the field across which Mr Cook walked has been described as “muddy” and “boggy” those words do not adequately convey its state.

54 The NorthPower investigation report records that:

“Ambulance staff attended Cook at the accident site despite being hampered by 100-150 mm deep mud.”

55 Mr Mason attended Milo in the afternoon of the day of the accident. He requested Mr Mackay to take him to the site where Mr Cook had been electrocuted. Mr Mason reports:

“On stepping down from the tractor my feet had sunk to a level just below my knees making it hard to walk without falling over. I decided to return to the site when the area had dried.”

56 The conductor in question was 6mm (which is around 0.25 inches) in diameter. An expert witness, Professor Stillman, identified it as made of steel, and that it “would probably have degraded as a result of the time it had been in the air”. That degradation results in its surface no longer being shiny, but dull.

57 Mr Mason explained his observations of the day of the accident:

“I was there – this was between 1 o’clock and, say, 3 o’clock in the afternoon, and I found it very hard to actually make the wire out against the horizon, okay, even when I was – prior to going out there. When I was taking measurements and notes adjacent to where the vehicles were parked, I found myself checking myself there too because the wire went across the road at, as I said before, 1 and a half metres, and I kept losing it, and it was very easy. When you’re looking at other things, it was very easy to miss it.”

58 On 10 January 2001 Mr Peter Hyde, a member of the team investigating the accident for NorthPower, tried to re-enact Mr Cook’s journey from the access road to the spot where he was electrocuted. The NorthPower investigation report records:

“Hyde found it extremely difficult to keep a set distance from the line route as he set off from the track across the rows. He had to focus on trying to negotiate the rows particularly where to place his feet. As the mud on his boots built up (from 1 kg clean to 3.5 kg each) he found he was getting snagged on the roots and stalks of the cotton bushes and having difficulty maintaining his balance. He was sinking into the mud to about 150 mm. He also found that the resistance of the cotton bushes to his moving through them was substantial.

Ray Buddee also commented that when he was hurrying out to where Cook was lying, it had been difficult to focus on the low wire and its distance from him, as he had to concentrate on negotiating the rows of cotton bushes. It was very fortunate for Buddee that Mackay, at Cook’s side and near the low wire, had seen Buddee getting close to the wire as he headed towards them and had warned Buddee to move away from it.”

59 Mr Mason also re-enacted Mr Cook’s journey on 2 January 2001. He reports:

“I walked from the road and under the power line towards the site of the accident. This required me to cross over the rows of cotton in slightly diagonal direction. Every 10 to 12 paces I found myself looking up at the power line and correcting the direction I was walking. I observed both Jim Crawford and Garry Brady (NorthPower) who were walking with me were having the same directional problem.”

60 Mr Mason explained in oral evidence why he kept looking up at the power line and correcting his direction:

“A. Well, I took it on board that it was because the rows of cotton were diagonal, and it’s just, I suppose, human instinct that you try and walk a straight line, and I found myself veering off.

Results of NorthPower’s Investigation

61 The conclusion that NorthPower came to in its accident investigation was:

“Cook must not have realised how close he had got to the live wire. The cotton rows he was crossing are at an angle of about 60 degrees to the line, Cook would have been concentrating on where to place his feet relative to the cotton bushes, trying to avoid stepping into the troughs of the rows, trying to avoid stumbling as he dragged his mud-caked boots from row to row. In concentrating on this and periodically looking up at the quite thin wire and with nothing to aid his judging the distance to the wire, the path he took must have brought him much closer to the low wire.”

62 Even after the accident had occurred, NorthPower did not criticise Mr Cook’s decision to start walking through the field while Mr Buddee was still on his way to turn the electricity off. NorthPower’s accident investigation report states:

“It appears Buddee and Cook undertook an initial workplace risk assessment in that:

· They identified the live wire as a hazard and agreed that isolating supply testing and earthing the line was the required control measure to eliminate this risk.

· They realised that the low live wire was a public hazard and one of them needed to stay in the vicinity.

· They recognised the muddy field as a hazard and that walking through the field would be difficult but had to be done to determine the extent of damage to both wires and the pole some 300 metres in the cotton field. They needed this information to be able to plan the work and do it safely.” (Emphasis added)

63 After Mr Cook’s accident, NorthPower issued a “hazard alert” to its staff relating to the situation that Mr Cook had encountered. The “hazard alert” included in the “Lessons to be learnt” from Mr Cook’s accident:

minimum

The importance of doing a full worksite Risk Assessment at the very start of a job. Note that a mental/visual risk assessment allowed for emergencies involving immediate danger to human life does not mean a partial or cursory assessment.”

The Judge’s Finding on How Mr Cook Fell

64 The trial judge found:

“There is no evidence that Mr Cook voluntarily placed himself or any part of his body inside the proscribed one metre clearance, nor can such an inference be drawn. It is more probable that he lost his balance in the muddy conditions and breached the clearance as a consequence of stumbling or falling, from a distance in excess of one metre. I am satisfied that by reason of his training and experience, Mr Cook would not have risked breaching the required clearance.”

By the time of the appeal that finding was not contentious.

65 Mr Cook started working for NorthPower in 1995 as a trainee linesman. He did a series of courses over the years until, by the time of the accident, he had qualified as a grade 6 linesman, the highest grade of linesman that NorthPower employed.

66 Operating staff of NorthPower were assessed annually, in writing. Mr Cook’s last assessment prior to the accident had been on 28 June 2000. To the question “Who should be the prime consideration when operating in the system?” he gave the correct answer, namely “self”. He accepted in cross-examination that if somebody else had authorised him to do some work, but he considered it unsafe, it was his duty not to proceed with the work.

67 He was well aware that the minimum safe operating distance prescribed by the NorthPower safety rules was one metre for a 22 thousand volt conductor, and that the reason for prescribing the minimum clearance was because of the possibility of flashover. He was also aware that pools of water near a conductor, moisture vapour and humidity could affect flashover, by making it more likely to occur. (The evidence established that moisture did not increase the distance over which flashover could occur, just the likelihood of it happening.) Mr Cook agreed that when he arrived at a work site he assessed the risk of injury to himself from the moment he got out of his truck, and that he assumed that a conductor is energised until he has personally tested it with a device that all electrical linesmen carry.

68 Though in cross-examination Mr Cook could not provide a reason why he could not wait until the line was isolated before undertaking his assessment of what repairs were necessary, in circumstances where Mr Cook had no memory at all of the day in question I would not place weight on that answer.

69 Mr Cook explained the point of checking on the wire itself as being to make sure it wasn’t going to break at any stage before work was done on the conductors or the poles or the cross arms. This was part of assessing the method by which the job should be done, and deciding what parts and equipment were needed for the job.

70 He said it would probably not be possible to assess the condition of a 22 kv conductor that was 6mm in diameter from a distance of five or ten metres away. He said:

“You’d probably want to get to around about your clearances to see if there was any broken strands in the wire or anything like that, so around about 2 to 3 metres.”

71 The trial judge made no explicit finding concerning the existence of a duty of care owed to Mr Cook by Mr Stubbs. His reasons suggest that he simply assumed that a duty of care existed. The written submissions of Aircair at the trial had contested the existence of a duty with reference to authority, but the judge made no reference to any of those authorities.

72 Aircair submits that where one has an experienced tradesman:

(a) experienced in the task he was performing when injured;

(b) who knew of the relevant danger;

(c) who was accustomed to meeting and safeguarding against that danger;

(d) who had time to assess and overcome the danger; and

(e) was suitably equipped,

73 Aircair bases that submission upon O’Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225; Commissioner for Railways v Schier [1964] NSWR 880; Daley v Gypsy Caravan Co Pty Ltd [1966] 2 NSWR 22 and Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7.

74 In O’Connor v Commissioner for Government Transport an experienced plumber died after falling from an awning on which his employer had instructed him to work. His task was to remove, cut and replace some of the corrugated iron sheeting on the awning, so that the awning would overhang the footpath to a lesser extent. While on the roof of the awning, and in the process of disassembling some of it, the corrugated iron buckled, causing him to fall. The cause of the buckling was that some of the rafters were affected by dry rot. The party of workmen sent to the site had been sent there equipped with trestles and a plank, that would have enabled the work to be performed without going on the roof of the awning, but they were not used. The presence of the dry rot was as easily ascertained by the workmen as by anybody, however skilled. Though a jury had awarded the widow of the workman damages in a claim against the employer under the Compensation to Relatives Act 1897, the Full Court had set that verdict aside. The High Court (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ) in a joint judgment upheld the Full Court’s decision.

75 The question at issue in the case was breach of duty, not existence of a duty of care. That was recognised when their Honours said, at [5], 230,

“The standard of care for an employee’s safety is not a low one, but in a case such as this the question must be whether any suggested course that was omitted could really be regarded as reasonable.”

76 Their Honours pointed out that the awning was the very thing to be worked at, and thus the defect in it was not a defect in the premises provided by the employer as the place where the employee was to do his work. Their Honours continued, at [5], 230:

“It was an ordinary question for a plumber to decide for himself how he would do the work. Obviously any experienced plumber would see that there must be a question whether a structure like the awning supported not by posts but by brackets was strong enough to bear his weight as he dismantled it. It was not made for that purpose and neither the deceased nor any of his companions can be supposed to have thought that it had been specially tested to see if it was strong enough. It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job.”

77 Even though O’Connor turned upon questions of breach of duty rather than existence of duty, when both questions depend upon reasonable forseeability of a risk eventuating the types of considerations that their Honours regarded as decisive in O’Connor are capable of influencing whether a duty of care exists in situations, like the present, where any relationship between plaintiff and defendant is not an ongoing one but rather one that arises by virtue of the particular circumstances in which the plaintiff comes to be injured.

78 In Commissioner for Railways v Schier an employee of AIS sued the Commissioner for Railways when the employee sustained an injury while uncoupling two railway trucks the property of the Commissioner. A device on the trucks which would enable the uncoupling to occur from the side of the trucks, in safety, was not working. The employee went between the trucks to uncouple them manually, doing so while the engine was still engaged in a “bumping-up” operation. The procedure of going between the trucks while the “bumping-up” was still underway

“… was a dangerous one, forbidden by AIS’s traffic regulations, which had been issued to the plaintiff, contrary to the instruction which the plaintiff had received when he was being trained as a shunter, obviously dangerous in itself, and understood by the plaintiff to be dangerous.” (per Sugerman J at 882)

79 Manual uncoupling by going between the trucks once “bumping up” had stopped was quite safe.

80 Sugerman J at 883 said that while the uncoupling lever was defective:

“The defect was not latent or concealed. It was obvious in a significant sense, in that the lever was situated at, and designed to be worked from, a position of safety at the side of the truck, so that discovery of its defectiveness must occur on the initial attempt to uncouple the truck made from a situation in which no danger could ensue, from the circumstance that the lever turned out to be, in fact, defective. This is an entirely different situation from that of a latent or concealed defect, such that the danger becomes apparent, and injury or other harm may result, only during or after use or consumption. The lever may be denominated a safety device. But it is not one of those safety devices whose unexpected failure may endanger the lives or limbs of those who rely upon them. If it fails to work, the position merely remains as it was. The trucks remain to be uncoupled, and may be uncoupled by another method, which is safe, even if it is not so convenient as use of the lever.”

81 Indeed, it was precisely because the defect in the lever had been discovered by the plaintiff that he attempted the dangerous alternative method of carrying out the job.

82 The Court also held that the defective state of the lever was not the cause of the plaintiff’s injuries. Sugerman J quoted the portion of the speech in Grant v Australian Knitting Mills Ltd [1936] AC 85 at 105 that said that the principle of Donoghue v Stevenson [1932] AC 562:

“… can only be applied where the defect is hidden and unknown to the consumer, otherwise the directness of cause and effect is absent; the man who consumes or uses a thing which he knows to be noxious cannot complain in respect of whatever mischief follows because it follows from his own conscious volition in choosing to incur the risk or certainty of mischance.”

83 As applied to the circumstances in Schier’s case, Sugerman J said, at 885, that the plaintiff

“… was not injured because of some mechanical or physical sequel of the defect in the lever which he had discovered; the defect in the lever did not of itself, in that or any other sense, give rise to any danger to the plaintiff. He was injured because, of the courses which were then open to him, he elected that which was dangerous. The existence of a defect, such as this, might be thought of as a temptation to the impatient or the imprudent to attempt a short cut, even though dangerous. And the plaintiff says that he was instructed by his foreman to take this short cut. But, of whatever significance considerations such as these may be, in a contest between an employee and his employer, it is not to their like that Lord Evershed’s reference to no practical alternative should be applied, as against a third party supplier of the truck.”

84 Walsh J was “in general agreement” with the reasons of Sugerman J, and added, at 886:

“If there are two courses which may be taken, one of which will avoid any risk of injury resulting from the situation created by the existence of the obvious and known defect, and the other of which will create a risk, then unless the latter choice is seen to be forced upon the plaintiff by the practical necessities of the situation itself, as viewed by a reasonable observer, then I think that the taking of that choice, with resultant injury, will not expose the supplier to liability. Even if the plaintiff can legitimately claim, as against his employer, that the urgencies of the employer’s business activities or its system of work or its express instructions, made the choice a reasonable one for the plaintiff to adopt, I think that this will not suffice, as against a stranger to that employment, to establish a relevant breach of the latter’s duty or the requisite causal relationship between the defect and the injury which the plaintiff sustains.”

85 Wallace J agreed with both Sugerman and Walsh JJ.

86 In Daley v Gypsy Caravan Co Pty Ltd the plaintiff was a qualified electrician who was requested by the owner of a caravan to investigate a slight electrical tingling that had been noticed in it. That caravan had been manufactured by the defendant. At the time of the investigation the caravan was in a caravan park, and connected to a 240-volt electrical supply. It would have been possible for the plaintiff to turn the supply off, but he decided to leave it on, to enable him to use a voltmeter that he had with him. He seized what he thought to be a piece of rubber flex that protruded below the floor of the caravan, believing it to be insulated. In fact, the object was copper pipe, connected to the frame of the caravan, into which a 240-volt current was passing. The plaintiff then suffered the injuries for which he sued. The plaintiff agreed that he knew that the cause of the fault was that 240 volts was getting into the caravan frame. The Court of Appeal (Wallace P, Jacobs and Asprey JJA) held that the defendant owed no duty to the plaintiff.

87 Their Honours recognised, at 26, that a manufacturer of products can owe duties to persons other than the purchaser, but that not everyone that is injured by a defect in the article manufactured, is necessarily within the class of “neighbour”. After quoting the statement of Lord Wright in Grant at 104-5 that “the duty cannot at the time of manufacture be other than potential or contingent” they said

“[t]he duty becomes vested (or, as it were, crystallised) when some person who is injured falls within the classification of ‘neighbour’. The question whether any particular person is within that class is one of fact and degree.”

88 The reference to “neighbour” was, of course a reference to Lord Atkins’ statement in Donoghue v Stevenson at 580:

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

89 In Daley their Honours applied that principle at 26-27, saying:

“A manufacturer of caravans, so constructed as to contain electrical wiring for the conduct of high voltage electricity, who sells such caravans with the knowledge that they would, in the ordinary course of use, be coupled to a high voltage electrical main could be found, in our opinion, to have in contemplation the fact that purchasers of those caravans would call in aid electricians to perform adjustments or repairs to the electrical system and that, as undoubtedly such caravans would in the contemplation of the manufacture be used over a substantial period of time, an electrician would be called to execute work thereon within a period certainly extending over two years from the date of its original purchase.”

90 That it was foreseeable that electricians might be involved in repairing the product in this way does not, of course, address all the elements of Lord Atkins’ test for existence of a duty. In Daley their Honours went on, at 27, to explicitly rely upon

“… the principle of proximity, that is to say the situation in which the potential duty of care would arise or vest.”

91 They adopted Lord Atkins’ statement in Donoghue v Stevenson at 581 that it would

“extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care could know would be directly affected by his carelessness act.”

92 At 28, their Honours accepted that there could be some circumstances in which a manufacturer might owe a duty of care to a fully qualified person called in to repair a fault when the effects of the fault had become apparent though the precise nature of the fault itself was still unknown. They contemplated the possibility:

“If an item of machinery ceased to function and an expert engineer was called in to ascertain and remedy the fault and for the purpose of his examination started the engine, the fact that the engine thereupon exploded and injured him through some hidden defect of manufacture may not enable the manufacturer, so long, at any rate, as the starting up of the engine was in all the circumstances a reasonable step in the expert’s process of examination, to shelter behind the knowledge of the expert knowledge of the engineer so as to claim that he was not the neighbour in law of the manufacturer.”

93 The critical matters that their Honours took into account in deciding whether a duty of care existed in the case before them were that the plaintiff was both qualified and licensed to investigate the cause of the electrical leakage, he was aware that the caravan was connected to 240-volt power and that it was escaping into the framework of the caravan,

“… and he must be taken to be aware of the danger attaching to any person coming into contact with an electrical current of such high voltage. The fact that the plaintiff believed that the leakage was a minor one is not to deny that a major leakage was still possible. It appears to us that in those circumstances it could not be contended successfully, that the defendant could reasonably anticipate that the plaintiff was a person who would be directly affected by its carelessness.

…

The plaintiff’s error, whilst the current was still being supplied to the caravan from the council’s main, of mistaking a copper pipe for a piece of electrical flex was unfortunate but that was an error of judgment on his part and in no way attributable to the defendant.”

94 They concluded, at 29:

“risk of mischance”

95 Papatonakis v Australian Telecommunications Commission involved a Telecom linesman who was sent to repair a fault in the telephone system of a land occupier. The land occupier had extended the telephone line using cabling not as strong as Telecom’s usual cable. The linesman was injured when he placed his ladder against a makeshift pole that the occupier had used in extending the line. The force thereby exerted on the line caused the weak section of it to break, throwing the workman from the ladder. For the workman to rely on the makeshift pole as a support was contrary to his training by Telecom. However, it was not the substandard condition of the pole that caused his injury, it was the substandard condition of the added cable, a matter of which the workman did not know, and could not reasonably have been expected to know or find out for himself. Brennan and Dawson JJ at 30 recognised an applicable principle as being:

“… 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 premise if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind.”

96 See, to similar effect, Mason J at 20-21 (dissenting), and Wilson J at 24. Deane J at 38 said of the cases that establish that proposition:

“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.”

97 The essence of the reason why, in Papatonakis, the majority held that the occupier was liable to the linesman was expressed by Brennan and Dawson JJ at 30:

“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.”

98 The statement of Brennan and Dawson JJ in Papatonakis that I have quoted at [95] above has been relied on by Santow JA (with whom McColl JA and Davies AJA agreed) in Bhambra v Roet [2003] NSWCA 393 at [34] in finding that a home owner owed no duty of care to provide handrails on the building site to an experienced carpenter engaged to do work on the home, even when those handrails would have prevented the carpenter from being injured in the manner in which he was actually injured. See likewise Davis v Nolras Pty Ltd [2005] NSWCA 379 at [39]-[49] per Ipp JA, [64] per Brereton J; State Rail Authority of NSW v Watkins [2001] NSWCA 405 at [55]-[57] per Mason P (with whom Heydon JA and Sperling J agreed); Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; (2002) Aust Torts Reports ¶81-673 at [52].

99 I recognise that Mr Stubbs may well have owed duties of care to people other than Mr Cook concerning the operation of the aircraft. He may have owed a duty to people on the ground who might be injured if the plane or anything dropped from it struck them or caused them to injure themselves while taking evasive action. Particularly when he knew he was flying in close proximity to high voltage electricity cables, he may well have owed a duty to people on the ground who might be struck or come into the immediate vicinity of a wire as it fell, to inexperienced people who approached too close to the fallen wire, to people who might come near a fallen wire without realising it was there, or to property owners who it was reasonably foreseeable may suffer damage in consequence of the fall of the wire. But that A owes a duty of care to one person, or people who fit within a particular description, does not necessarily mean that A owes a duty of care to anyone else.

100 In deciding whether Mr Stubbs owed a duty of care to Mr Cook, it is necessary to bear in mind that all of the cases on which Aircair relies come from times when the understanding of the circumstances in which a duty of care rises was not quite the same as it is today. In particular, it is to be observed that in Daley their Honours explicitly relied on “the principle of proximity” (though with an explicit statement of what they understood by it). Direct application of the notion of “proximity” can no longer be seen as a safe guide to when a duty of care exists: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [7]-[10] 193-194 per Gleeson CJ, [25]-[27] 197-198 per Gaudron J, [70]-[82] 208-212 per McHugh J, [191] 251 per Gummow J, [245]-[247] 268-270, [255] 273, [259] 275, [267] 277-278, [279]-[287] 283-286, [292]-[296] 288-289 per Kirby J, [330]-[335] 300-303 per Hayne J, [389] 318-319, [393] 321-322, [398]-[400] 323-324, [406] 326 per Callinan J. More recent High Court authority has referred to proximity as a doctrine that is “rejected” (Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [29]-[30], 563-564 per McHugh J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [236], 624-625 per Kirby J) “no longer … the criterion of a duty of care” (Graham Barclay Oysters Pty Ltd v Ryan at [99], 583 per McHugh J), “one that has not served as a unifying doctrine” (Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at [53], 341 per Gaudron J), and “not only difficult to define but difficult to apply” (Tame at [257], 405 per Hayne J). In Prestige Property Services Pty Ltd v Choi [2007] NSWCA 363 Mason P (with whom Hodgson JA and Handley AJA agreed) said at [36] that a submission that a duty of care was based on proximity “had an old-fashioned and unhelpful ring about it.” In my view, it is necessary to decide whether a duty of care was owed by looking in a more particular fashion at facts relating to the particular relationship in which Mr Stubbs and Mr Cook stood.

101 In the present case, a person in Mr Stubbs’ position ought reasonably have foreseen that careless flying in the immediate vicinity of the power line might bring the power line down. He should reasonably have foreseen that a power line that was brought down was capable of inflicting very serious injury or death on a person who came near it. However, Mr Cook was not on the ground anywhere in the vicinity at the time the plane was flying. It is reasonably foreseeable by an aircraft pilot that if he flies the plane in such a fashion as to bring down a power line, power workers will come to repair the damage. It is reasonably foreseeable that, once such a power worker had come, he could injure himself as a consequence of his own inadvertence. However, to the extent that a reasonable person considering the matter can know in advance, a power worker sent to repair a damaged power line is likely to be properly trained and experienced, and likely to be able to take care of himself so far as avoiding electric shock is concerned. Those likelihoods are such that it would not seem to be a realistic possibility that a power authority would send a person who was not properly trained, experienced, and capable of protecting himself. In that circumstance, the taking of reasonable care for the interests of the hypothetical electrical power worker does not result in the imposition of a duty of care to that power worker on the pilot. I conclude that Mr Stubbs did not owe a duty of care to Mr Cook to operate the aircraft with reasonable care.

102 In these circumstances, no questions arise of whether a duty was breached, or whether Mr Cook’s injuries were caused by a breach of duty.

DAA

103 The trial judge’s reasons for holding that liability arose under DAA were:

“… there was an impact of the type contemplated by s 10(d), and an uninterrupted causal relationship between that impact and the injuries. Mr Cook, whilst on land, suffered personal injury caused by ‘something’ that was a result of the impact of the aircraft, in flight, with the conductor. That ‘something’ was the dislodgement of the conductor from a supporting pole, which created the foreseeable risk of injury to persons in the vicinity, or who might approach the live conductor, such as linesmen from North Power.”

104 Aircair and ACQ submit that there are two separate errors in that reasoning process. The first is that it accords too wide a construction to section 10(1)(d) DAA. The second is that the factual finding of causation is mistaken.

Construction of Section 10(1)(d)

105 Aircair and ACQ submit that sections 10(1)(a)-(c) DAA apply where an aircraft, a part of an aircraft, or something falling strikes the plaintiff or the plaintiff’s property, and that section 10(1)(d) is confined to situations such as where either an aircraft, a part of an aircraft, or something falling from an aircraft strikes an object that then strikes the plaintiff or his property with no opportunity for the plaintiff to avoid an injury. These appellants give examples of section 10(1)(d) applying where a part of an aircraft falls onto a roof, which then falls onto and strikes the plaintiff, or where a fire results from a crashed aircraft, and burns the plaintiff.

106 I do not agree that the construction of section 10(1)(d) is so limited. Explaining why involves examination of the history of this legislative topic.

107 The Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface ("the Rome Convention") was agreed between various countries in Rome on 7 October 1952. Article 1, 1 provided:

"Any person who suffers damage on the surface shall, upon proof only that the damage was caused by an aircraft in flight or by any person or thing falling therefrom, be entitled to compensation as provided by this Convention. Nevertheless there shall be no right to compensation if the damage is not a direct consequence of the incident giving rise thereto, or if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations."

108 Articles 2-4 identified on whom that liability fell. Article 6 provided:

"Any person who would otherwise be liable under the provisions of this Convention shall not be liable for damage if he proves that the damage was caused solely through the negligence or other wrongful act or omission of the person who suffers the damage or of the latter's servants or agents. If the person liable proves that the damage was contributed to by the negligence or other wrongful act or omission of the person who suffers the damage, or of his servants or agents, the compensation shall be reduced to the extent to which such negligence or wrongful act or omission contributed to the damage."

109 Articles 11 and 12 provided that, save in the case of a person who suffers damage caused by a deliberate act or omission of the operator, his servants or agents, done with intent to cause damage, the liability for damage was limited in accordance with a scale provided by the Convention. The limitation of liability was imposed by fixing a sum that was the total amount of compensation that could be paid for each aircraft and incident. The amount so payable was calculated on a sliding scale depending on the weight of the aircraft, and in a monetary measure that depended upon the value of gold from time to time. Article 21 provided for a period of limitation of two years from the date of the incident that caused the damage. That period could be suspended or interrupted under the law of the court trying the action, but in any case would be extinguished on the expiration of three years from the date of the incident which caused the damage. Article 23 stated that the Convention applied to damage contemplated in Article 1 caused in the territory of a Contracting State by an aircraft registered in the territory of another Contracting State.

110 The Civil Aviation (Damage by Aircraft) Act 1958 (Cth) was passed to give effect in Australian law to the Rome Convention, to the extent that the Federal Parliament was then conceived as having power to do so. It gave approval to the ratification by Australia of the Convention (section 7). Part II of the Act provided that the provisions of the Convention have the force of law in Australia (section 8). In this way, it allowed an action for damages to be brought in Australian courts in those circumstances in which the Convention itself established a liability in international law. Thus, the action for damages created by Part II applied only to the limited class of aircraft that fell within Article 23 of the Convention. Part III of the Act provided for liability to arise for damages caused by certain aircraft that were not covered by the Convention, in the same circumstances as the Convention would cause liability for damage to arise for an aircraft to which it applied. The aircraft to which Part III extended that liability were, broadly, aircraft engaged in trade and commerce between Australia and another country and that were in flight in Australia.

111 Some Australian states have enacted legislation to give effect to principles somewhat similar to those of the Rome Convention. In New South Wales, section 2 Damage by Aircraft Act 1952 (“the 1952 NSW Act”) provides:

Air Navigation Regulations

(2) Where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owner of the aircraft.”

112 It expressly provides that loss or damage includes, in relation to persons, loss of life and personal injury. That State legislation was not, however, inspired by the Rome Convention – as Brownie J explained in Southgate v Commonwealth of Australia (1987) 13 NSWLR 188 at 190:

Damage by Aircraft Act

Air Navigation Act

Civil Aviation Act

113 A significant difference between this New South Wales legislation and the Rome Convention is that there is no limitation on liability under the New South Wales statute.

114 The DAA repealed the Civil Aviation (Damage by Aircraft) Act 1958 (Cth). Clause 3 DAA provides:

“facilitate”

115 The purpose of the legislation was explained by the Minister in the second reading speech (House of Representatives, Parliamentary Debates (Hansard), 24 March 1999, 4163 ff) as being "… to improve compensation for members of the public who suffer personal injury or property damage as third parties on the ground involved in an air accident". Other indications of the remedial intention of the statute are found in the Minister’s statement that:

“… as the Bill is intended to provide members of the public with compensation that is as prompt and as comprehensive as practicable, it modernises and strengthens the provisions of relevant State legislation, where clear public gains have been possible.” (4164)

“It is intended that compensation will also be as comprehensive as practicable, to cover all economic and non-economic loss possible.”

116 The Minister expressly stated:

"It should be stressed that the involvement of members of the public in an air accident as third parties on the ground is generally not due to any choice or action on their part. In the great majority of cases they will not have contributed in any way to the accident, for example, by contributory negligence or by choosing aviation as a mode of transport."

117 He identified unsatisfactory features of the existing arrangements concerning damage caused by aircraft as being the limit on compensation available under the Rome Convention, that the Convention had been adhered to by few countries, and that it was unsatisfactory to have limited liability for damage by aircraft applying to some aircraft flying in Australian skies but not to others. In those circumstances, he announced an intention to denounce the Rome Convention.

118 As well, the Minister noted that not all States and Territories had legislation that imposed strict liability concerning damage by aircraft. The Minister urged those states that had not enacted legislation imposing strict liability (South Australia and Queensland) to do so, and stated that the new legislation would apply in the territories.

119 The DAA went further to achieve national uniformity in the legislation governing damage by aircraft than the Minister had specifically announced in the second reading speech. DAA relied on a much wider range of Commonwealth heads of power to identify the aircraft to which it applied than the Civil Aviation (Damage by Aircraft) Act 1958 had done, and in that way significantly widened the scope of the aircraft to which Commonwealth legislation on the subject applied. Section 9 DAA stated:

“(1) This Act extends to each external Territory.

(2) This Act does not apply in relation to a Defence Force aircraft.

(3) This Act applies to acts, omissions, matters and things within Australian territory.

(4) Subject to subsection (2), this Act applies in relation to the following:

(a) Commonwealth aircraft;

(b) aircraft owned by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution);

(c) aircraft (including foreign aircraft) engaged in:

(i) international air navigation; or

(ii) air navigation in relation to trade and commerce with other countries and among the States; or

(iii) air navigation conducted by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution); or

(iv) air navigation to or from, or within, the Territories; or

(v) landing at, or taking off from, a place acquired by the Commonwealth for public purposes.”

120 There was no examination of the circumstances by virtue of which the DAA was capable of applying to the aircraft involved in the present case, and both the trial and the appeal were conducted on the basis that the DAA was capable of applying to that aircraft. One reason for that may well be that the aircraft falls within section 9(4)(b) or section 9(4)(c)(iii) or both.

174 The balance of authority supports the view that the action for damages conferred by section 82 Trade Practices Act is not an action in tort, notwithstanding that it expressly confers a remedy for a breach of a standard of action that the Trade Practices Act itself requires to be adhered to: Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 at 11; Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at [17] 503-504, [38] 510, [40] 512; Hampic Pty Ltd v Adams [1999] NSWCA 455 at [61]. Until Part VIAA was introduced into the Trade Practices Act in 2004, the action for damages conferred by section 82 of that Act was not one in which damages could be reduced if the applicant’s conduct had contributed to the loss or damage: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109. Similarly, when the action for damages under DAA is not for the breach of the tort of statutory duty, but is the enforcement of an expressly conferred statutory right of action, circumstances that fell within section 10(1) DAA would not be a “wrong” within the meaning of section 8(a) of the 1965 Act because they would not involve an act or omission that gave rise to a liability in tort. Nor would there be a liability in respect of which a defence of contributory negligence was available at common law. The wording of section 8(b) of the 1965 Act clearly does not apply to the action under DAA. Thus, such an action is not a “wrong” within the meaning of the 1965 Act.

175 Indeed, when DAA does not require any particular standard of action to be adhered to, the situation is a fortiori that covering the Trade Practices Act.

176 If it were the case that the damages Mr Cook claimed were for damages for harm resulting from Mr Stubbs’ failure to exercise reasonable care and skill in flying the plane, or resulting from NorthPower’s breach of duty, the cause of action under DAA would fall within section 5A(1) Civil Liability Act. However, having fallen there, section 5R and 5S would have no work to do in relation to it, because section 5R and 5S presuppose that the 1965 Act applies to the type of claims with which they deal. Thus, even in the hypothetical situation I am considering, a defence of contributory negligence would not be available in relation to an action under DAA.

177 In those circumstances, it is not necessary to consider whether the claim is actually a claim for damages for harm resulting from Mr Stubbs’ failure to exercise reasonable care and skill in flying the plane. ACQ and Aircair argued forcefully that no want of care and skill on the part of Mr Stubbs had been proved. On the view I take, it is unnecessary to enter into that factual question.

178 In Southgate, Brownie J held that the 1965 Act applied to an action for damages that was brought under the 1952 NSW Act. At that time, the provision of the 1965 Act that governed the availability of contributory negligence was worded differently to its present version. Then, section 10(1) of the 1965 Act stated the circumstance in which apportionment could occur as being:

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons …"

"fault"

"wrong"

179 Brownie J said, at 190-191:

Damage by Aircraft Act

Law Reform (Miscellaneous Provisions)

Act

180 That reasoning is, with respect, correct. The then definition of “fault” was satisfied if there was an act or omission that would, apart from “this Part”, give rise to the defence of contributory negligence. The terms of the 1952 NSW Act expressly make contributory negligence a defence. Thus, if an act or omission of a plaintiff had contributed to that plaintiff's own injury, that act or omission of the plaintiff fell within the definition of “fault” as it then existed. As well, the act or omission of the defendant, that contributed along with the act or omission of the plaintiff to the plaintiff’s eventual injury, was an “other act or omission which … would, apart from this Part, give rise to the defence of contributory negligence”, because contributory negligence requires the act or omission of both plaintiff and defendant to make a causal contribution to the eventual injury. In this way, there was “fault” of both the plaintiff and the defendant, and so the statutory apportionment could operate in Southgate. The reasons why I conclude that contributory negligence is not a defence to an action under DAA have as important elements the fact that DAA does not expressly make contributory negligence a defence, and the present definition of “wrong” in the 1965 Act, both matters concerning which the legislation I am considering differs from that considered by Brownie J.

181 Because of the provisions of 151O Workers Compensation Act 1987, a defence of voluntary assumption of risk was not available in Mr Cook’s action for damages against NorthPower. The trial judge assumed that a defence of voluntary assumption of risk was available to Aircair and ACQ, but held that, on the facts that defence was not made out. He did not give any separate consideration to how such an alleged defence might operate concerning the tort of negligence, and concerning the statutory liability under DAA.

182 The submissions of ACQ and Aircair on the appeal likewise did not differentiate between how an alleged defence of voluntary assumption of risk might operate in relation to the action for the tort of negligence, and in relation to the statutory liability under DAA. Rather, the submissions dealt with the trial judge’s reasoning on this topic on his Honour’s own terms.

183 When I have held that Aircair owes no duty of care to Mr Cook, and hence that no tort of negligence was committed by it, voluntary assumption of risk could enter into the picture only if it were a defence to DAA.

184 When DAA does not create a liability in tort, and says nothing in its terms about voluntary assumption of risk being a defence to the action, I have some difficulty in seeing how, as a matter of law, it could even possibly be a defence in a way that was separate to an inquiry into whether the damage was caused by one of the events in section 10(1)(a)-(d). However, no submissions were addressed, on the appeal, to this matter of law. Thus I, likewise, shall simply consider whether, if voluntary assumption of risk were a defence to the action under DAA, the conditions for its application apply here. I make clear that by taking this course I give no encouragement whatever to the notion that voluntary assumption of risk actually is a defence to that action.

185 In Monie v Commonwealth of Australia [2007] NSWCA 230 at [74]-[76] I said (with the assent of Mason P and Beazley JA):

Smith v Baker & Sons

One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong.

Smith v Baker & Sons

Letang v Ottawa Electric Railway Co

Smith v Baker & Sons

Osborne v London and North Western Railway Co

Letang v Ottawa Electric Railway Co

Roggenkamp v Bennett

… the plaintiff must be shown not only to have perceived the existence of the danger, for this alone would be insufficient, but also that he fully appreciated it and voluntary accepted the risk.

Randwick City Council v Muzic

Roggenkamp v Bennett

Hadland v Council of the City of Blacktown

Canterbury Municipal Council v Taylor

186 Applying those principles to the present case, one particular risk of which Mr Cook was well aware was of the danger of electrocution if he came within one metre of the conductor. However, he did not assent to coming that close to the conductor – he came to be there by inadvertence. As the facts of the case sadly show, Mr Cook also underwent a risk that in entering the field, with the extremely difficult conditions that it provided, he might by inadvertence get too close to the conductor. I am not satisfied that he assented to undertaking that risk with the full appreciation of its extent.

187 In my view, even if as a matter of law it were available, the defence of voluntary assumption of risk would fail.

188 At the trial Mr Menzies QC articulated the plaintiff’s case against NorthPower as follows:

“… the only safe way of dealing with the circumstances which arose here was to turn the power off first. Why? Because of the dangers that were inherent in [not doing so]

So far as the clearance distances are concerned, it’s a matter of no concern to us that it flashes only a relatively short distance, for this reason: the flaw in the system which said “maintain a distance of a metre” was that it failed to take into account that this could inadvertently be breached in circumstances short of negligence; and certainly in circumstances of negligence … [W]hat they should have done was have a system that said this: “In a circumstance where you might come too close to the line, for goodness’ sake, you are not to go on the site until you turn the power off first.” It’s absolutely perfectly plain and, whatever view one takes of the evidence, that’s not what any of them were told or were ever told.

The second point about it is that, if one does go onto a site, just remember that the clearance of a metre can easily be compromised by a fall or a stumble, even if you’re a metre away.”

189 Mr Menzies’ reference to “it flashes only a relatively short distance” was to uncontested evidence from Professor Stillman that flashover could occur only if a person or object came within 60mm of a 22kv conductor. Thus, requiring a clearance distance of 1 metre in itself provided some margin for error.

190 The claim that Mr Cook brought against NorthPower was one concerning which damages would be assessed under the modified common law provisions contained in Division 3 of Part 5 of the Workers Compensation Act. It is common ground that therefore the whole of the Civil Liability Act does not apply to it: section 3B(1)(f) Civil Liability Act.

191 The trial judge found that NorthPower was negligent in two respects. The first was by failing to isolate the line remotely prior to the arrival of Mr Buddee and Mr Cook. The second was by inadequate training of Mr Cook concerning maintaining clearances.

192 The trial judge’s reasoning concerning failure to remotely isolate the line prior to the arrival of Mr Buddee and Mr Cook was as follows:

“… [A]fter the conductor was dislodged, it was swinging about across the field: (T 196.29). It was difficult to see in the particular conditions; there were people in the vicinity who were “ducking under the downed conductor”; and even Mr Mackay had to be warned away by Mr Buddee. Mr Cartwright rang Mr Mackay, who in turn rang NorthPower to inform it the line was down. There was no evidence as to what NorthPower was or was not otherwise aware. The risk of harm from the energised line swaying across the field at head height was clearly foreseeable. In my view it would not have been a disproportionate response for NorthPower to have remotely isolated the conductor from Port Macquarie, until the arrival of the two linesmen it dispatched to assess the situation. The line, or some part of it, was always going to need to be isolated. Any relative increase in time out or customers affected by remote isolation was in my view the required, proportionate, response to the danger.”

193 Professor Stillman expressed a view in his report that NorthPower should have isolated the line remotely. He expressed the view in the following way:

“live”

“dead”

Based on the above principle it would have been expected that the instructions received by Buddee and Cook when they were sent to attend the fault was that system control would have de-activated the line by supervisory remote control and informed them so. This at least would have given some measure of safety to any one of the public, such as farm workers, who may have been in or near the line conductor. The next step would have been to direct Buddee and Cook to the isolating links located 7 kms from the fault site, where an open point would have been established and indicative earths placed on the load side conductors. None of this procedure was followed until after the accident.

If this procedure had been followed Cook would not have been placed at risk and subsequent injury.”

194 He concluded:

“The supervisory procedure adopted by NorthPower once they were informed of the line being down, breached the basic operational principle of deactivating, isolating and earthing prior to any inspection and repair. NorthPower should have isolated the line by remote supervisory control as a simple precaution in respect of the safety of local farm personnel and then directed Buddee and Cook to open, and isolate and earth the line at the links, rather than having it done after the event. If this procedure had been followed Cook would not have been placed at risk and subsequent injury.”

195 In cross-examination Professor Stillman had put to him a hypothetical situation in which an electricity authority received:

“… a report of a line down in a cotton field without any suggestion of danger to any person, okay? Nobody is threatened, there are no workers in the field and so on. It’s not threatening the farmhouse or the barn or the livestock.”

196 Professor Stillman agreed that, faced with that situation, the appropriate course for the electricity authority to take was to send out an experienced person to check the situation, and that one would not isolate the line before the experienced person got there. However, he saw the difference between that situation and that of the present case as being that in the present case:

“… it was reported by one of the personnel employed by Milo Foods. So consequently I came to the conclusion that there would be other people in the area and as there was, there was Mr James, the person involved with the aircraft people and Mr Cartwright. And so I considered that there were people at risk.”

197 He denied that concluding that people must be at risk from the fact that a man from the farm phoned in involved an unjustified leap, saying “no, it’s based on my own experience”. When Professor Stillman’s experience covered actually working on power distribution networks, and holding a senior managerial position in an electricity distribution authority, as well as impressive academic qualifications in electrical engineering, I find that response persuasive.

198 Professor Stillman’s cross-examination continued:

199 Professor Stillman agreed that the qualifications of Mr Cook were such that he was an appropriate man for an electricity authority to send to deal with the situation.

200 Mr Cook himself accepted in cross-examination that it would be “ridiculous” that if every time there was a call about a fault in a line, the whole line was switched off. He accepted that if electricity workers arrived at a site and found that it created a danger, it was open to them to use their radio contact with Port Macquarie to ask for the line to be switched off remotely.

201 From the evidence I have quoted it can be seen that in Professor Stillman’s view it was the presence of the farm workers that made the difference between whether NorthPower should have deactivated the line before Mr Cook and Mr Buddee arrived, and whether it could have left the line alive until Mr Cook and Mr Buddee had the chance to assess the situation. It is as though, in response to a question “bearing in mind all the people who NorthPower had reason to believe could be affected by the line remaining live, what should NorthPower have done about de-activating the line” that Professor Stillman gave an answer “Northpower should have de-activated it”. But that is not the right question to ask in deciding whether, by failing to de-activate the line, NorthPower breached its undoubted duty to take reasonable care for the safety of its employee Mr Cook. That failure to isolate the line might have been a breach of NorthPower’s duty to farm workers in the field, does not answer the question of whether it was a breach of NorthPower’s duty to Mr Cook, given the special training and experience that Mr Cook had. If NorthPower had reason to believe that Mr Cook was properly trained and experienced, and thus well able to assess for himself how to deal with any danger resulting from the wire being live when he arrived at the site, reasoning similar to that in O’Connor would lead to the conclusion that there was no breach of duty to Mr Cook in failing to isolate the power before he arrived. I therefore turn to the question of whether his training and experience was adequate.

202 The trial judge found that the evidence was “motley” concerning training about how linesmen were to work in the field. He found:

“Linesmen were trained to maintain clearances from live conductors in all circumstances. They were also trained to isolate and earth conductors before actually working on them. There was also a system for completion of a written risk assessment to be completed before starting work, but this was only to be finalised after isolation and earthing. Less clear, however, were the requirements involved in approaching live conductors and assessing risk prior to isolation, other than the clearance rule. And missing altogether was evidence as to the criteria to be applied as to when to isolate to a live conductor and in what circumstances.”

203 The trial judge’s finding concerning inadequate training was (at [53]):

“The training received by Mr Cook as to maintaining clearances was ambiguous. On the one hand he was acutely aware of the requirement to maintain a minimum clearance of one metre before working on a line until it was isolated and earthed. On the other hand there was no clear procedure by which he had been trained to keep well clear of the line before carrying out an assessment of the work required. Nor had he been trained as to how the clearance was to be calculated or observed. In adverse conditions, such as were present here, not very much was required for that one metre clearance to be compromised. Inadvertence, through fatigue, tripping or falling, or misjudgement in conditions of poor visibility, were all reasonably foreseeable concomitants of establishing, through training and instruction, a safe clearance, and how to apply it. The requirement should have been to require linesmen in these circumstances to stay well clear of the line until isolated, sufficiently far away to take account of inadvertence.”

204 Mr Cook had never been given any specific instructions by his employer about how to deal with muddy or wet conditions. In cross-examination he said:

205 Those questions were quite general, and imprecise, and leave unexplored whether he knew what he should do, in circumstances like those in the field on the day of the accident to “take into account” mud, or wet conditions. The questions did not address the other hazard that Mr Cook would have encountered, just as Mr Hyde encountered it (para [58] above), that of moving through cotton bushes at least knee-high on which one can get snagged on the roots and stalks. I would not base a finding of no breach of duty on Mr Cook’s answers to the questions.

206 The rule that had been drilled into Mr Cook was that he should maintain a minimum one-metre clearance from a conductor of this type. The trial judge’s conclusion about the mechanism of Mr Cook’s fall (para [64] above) is to the effect that, so far as Mr Cook was making deliberate movements, he maintained at least a one metre clearance.

207 NorthPower’s own assessment of Mr Cook’s accident led it to issue a document to all its relevant staff, that explicitly stated that in some circumstances the minimum may not be enough (para [63] above). The particular circumstances that it identified in that document, of the conductor moving a bit in the wind, or having one strand spring out, so that the minimum was not enough, are not shown to have been operative in the present case. Indeed, the proper conclusion from the evidence is that, had Mr Cook maintained a clearance of one metre from the line, no harm would have befallen him.

208 I have some difficulty in understanding just what a “clear procedure by which … to keep well clear of the line” would amount to, or what training in “how the clearance was to be calculated or observed” could consist in. No example of such a procedure, or such training, was given by the judge, or provided in the evidence, or in submissions. It is not suggested that the one metre distance could or should be measured – placing a measuring device on or near the line would itself involve breaching the clearance. Necessarily, the clearance is to be ascertained by estimation, based on observations in the field, not by measurement.

209 Mr Cook was well aware of the potential danger that the line posed. The clearance was always expressed in terms of a minimum distance that should be maintained from the line. In my view, the danger of the clearance being breached if a linesman tripped and fell, whether because of the mud, or through being tripped by a cotton bush branch or root, is an obvious one. The particular conditions that Mr Cook encountered in the field on the day were most unusually arduous ones. However in my view it is reasonable for an employer to leave to the man in the field the task of assessment of such conditions, and what the appropriate response to them should be to ensure that one stayed at least a metre from the line.

210 Mr Cook was clearly aware that his first priority was always expected to be his own safety. If, on walking some distance into the cotton field he found that the going was too difficult for him to be confident about maintaining the clearance, or if the conditions were such that he could not get and keep a clear view of where the line was, it was always an available alternative for him to give up, return to his vehicle and wait for Mr Buddee’s return, or if there was some particular urgency to get the repair job finished (as there was not in the present case) to contact Port Macquarie by radio and ask to have the power turned off remotely.

211 In my view NorthPower was not in breach of its duty of care to Mr Cook through providing him with inadequate training. And, when the employer had no cause to believe that Mr Cook was inadequately trained or insufficiently experienced, neither was NorthPower in breach of its duty of care by failing to isolate the line remotely before the arrival of Mr Cook.

212 In these circumstances, the judgment against NorthPower cannot stand. NorthPower’s entitlement to any contribution towards any such judgment likewise falls away, and it is unnecessary to consider the extent to which Mr Cook’s injury was caused by his own contributory negligence. There is also no question of either ACQ or Aircair being able to claim contribution from NorthPower (either under the 1946 Act or under the general law) on the basis that NorthPower has a liability to pay the same damages as ACQ and Aircair are liable to pay. When there is no question of contribution being payable by NorthPower, no question arises of whether the damages that Mr Cook can recover from ACQ and Aircair ought be reduced under the provisions of section 151Z(2)(c) Workers Compensation Act.

213 The result of the reasoning so far is that Mr Cook retains his judgments against ACQ and Aircair, but is not entitled to a judgment against NorthPower. When NorthPower has no liability to Mr Cook, it cannot retain its judgment against Aircair, as NorthPower’s judgment against Aircair was one requiring Aircair to make contribution to the liability of NorthPower to Mr Cook.

214 I mentioned at the outset of this judgment that there are four appeals involved in this matter. An appeal was lodged by each of ACQ, Aircair, NorthPower, and Mr Cook. Each of those appeals was from the one judgment in the court below. That judgment in the court below had been given in a single set of proceedings, in which Mr Cook sued ACQ, Aircair, and NorthPower. There were cross-claims in those proceedings, in which ACQ and Aircair sought contribution from NorthPower, and vice versa.

215 Notwithstanding that there were four separate appeals, in substance the hearing of the appeals was a single proceeding. ACQ and Aircair have at all times acted by the one set of solicitors and counsel. In my preliminary view, it may be appropriate to make costs orders concerning the appeals on a basis that aggregates the costs of the four separate appeals.

216 It is also my preliminary view that, on the assumption that there are no offers of compromise or Calderbank letters, and nothing else that is not contained in the appeal books that might influence a proper order as to costs, it may be appropriate for the costs of the combined appeals, and of the proceedings in the court below, to follow each respective event.

217 There were numerous issues raised and argued in the appeals of ACQ and Aircair that it was not necessary to decide. Those are the issues identified as (vi)-(x) inclusive in para [23] above. When the reason for it not being necessary to decide those issues is that all those issues depended upon NorthPower having a liability to Mr Cook, when NorthPower succeeded in its appeal against there being any such liability (an appeal to which Aircair, as well as Mr Cook, were respondents) I at present see no reason why the cost of arguing those issues should not be treated as part of the general costs of the combined appeal.

218 Likewise, it was not necessary to address issue (xii) identified in para [23] above, because of NorthPower succeeding in its appeal against having a liability to Mr Cook. Again, my preliminary view is that the costs of that issue might properly be disposed of as part of the general costs of the combined appeal.

219 As the costs orders have some complexity, and the parties have not had the opportunity to address what might be the appropriate orders in light of the findings that the Court has made, the preferable course is not to make costs orders at this stage. Rather, the parties should be given the opportunity of agreeing, or alternatively of formulating the costs orders each party submits is appropriate, in light of the findings of the Court so far. If the parties are unable to agree on the appropriate orders, I shall direct the exchange of written submissions concerning costs. I do not at present envisage that a further oral hearing concerning costs would be necessary, but if any party is of a different view, I shall reserve liberty to each party to apply, at its own risk as to costs, for a further oral hearing on the question of costs.

220 The orders I propose are:

Appeals of ACQ and Aircair (40302/07 and 40303/07)

Appeal dismissed, save in so far as costs orders may hereafter be made.

NorthPower Appeal (40454/07)

(1) Appeal allowed.

(2) Set aside the verdict and judgment in favour of Mr Cook against Country Energy in the court below.

(3) In lieu thereof, enter a verdict and judgment in favour of Country Energy against Mr Cook.

(4) Set aside the verdict and judgment in favour of Country Energy against Aircair Moree, namely, of 50% contribution by Aircair Moree to Country Energy in the court below.

Mr Cook’s Appeal (40367/07)

Appeal dismissed, save in so far as costs orders may hereafter be made.

In All Appeals

(1) Direct all parties to file Short Minutes of any agreed orders concerning the costs of proceedings 40302/07, 40303/07, 40454/07 and 40307/07 in this Court (“ the Four Appeals ”) and of the proceedings in the court below, within 28 days of the date of delivery of these reasons for judgment.

(2) In the event that no such agreement is reached, each party to serve on each other party written submissions identifying the costs orders in the Four Appeals, and in the court below, for which that party contends, and its reasons for those orders, within 28 days of the date of delivery of these reasons for judgment. Four copies of any such submissions are to be provided to the Associate to Campbell JA by the same date.

(3) Direct any party desirous of responding to any such submission to serve a written response on all the other parties to the Four Appeals within 49 days of the date of delivery of these reasons for judgment. Four copies of any such response are to be provided to the Associate to Campbell JA by the same date.

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Citations

ACQ Pty Ltd v Cook [2008] NSWCA 161

Most Recent Citation

Carna Group Pty Ltd v The Griffin Coal Mining Company [2019] FCA 1276

Cases Citing This Decision

42

ACQ Pty Ltd v Cook [2009] HCA 28

Irlam v Byrnes [2022] NSWCA 81

Cases Cited

34

Statutory Material Cited

22

O'Connor v Commissioner for Government Transport [1954] HCA 11

Papatonakis v Australian Telecommunications Commission [1985] HCA 3

O'Connor v Commissioner for Government Transport [1954] HCA 11

Cited Sections

Reported Decision:	72 NSWLR 318
Appeal Outcome:	Special leave application granted by the High Court 1 May 2009 (S499/2008 & S500/2008) ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 (S107/2009) Appeal dismissed by the High Court 5 August 2009 (S108/2009) Appeal dismissed by the High Court 5 August 2009

CITATION:	ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook [2008] NSWCA 161
HEARING DATE(S):	7-8 April 2008
JUDGMENT DATE:	16 July 2008
JUDGMENT OF:	Beazley JA at 1; Giles JA at 2; Campbell JA at 3
DECISION:	Pilot of aircraft owes no duty of care, concerning manner in which he flies, to an electricity worker who is nowhere near the place where the flying occurs, but who is a type of person likely to come to the scene if negligent flying brought a power line down. Section 10(1)(d) Damage by Aircraft Act (DAA) extends to indirect or consequential results of an impact that falls within s 10(1)(a), (b) or (c). Aircraft owner and operator liable to plaintiff under DAA for injury he suffered in consequence of collision between aircraft and power line. Contributory negligence of plaintiff not a partial defence to an action under s 10(1)(d) DAA. No voluntary assumption of risk by plaintiff. No breach of employer’s duty of care by plaintiff’s employer.
CATCHWORDS:	TORT – negligence – duty of care – linesman employed by power company injured by electric shock from power line dislodged from supporting pole when struck by aircraft – whether duty of care owed by employer – whether duty of care owed by pilot of aircraft – whether operator of aircraft vicariously liable for actions of pilot – whether direct application of notion of proximity is a safe guide to when duty of care exists – whether causal connection between impact and injuries – whether finding of causation is consistent with finding of no duty - AVIATION – Statutory liability of owner and operator of aircraft for personal injury caused by aircraft in flight – s 10 and s 11 Damage by Aircraft Act 1999 (Cth) – construction of expression “caused by” in s 10(1)(d) Damage by Aircraft Act – whether narrow construction of provision appropriate – whether common law concept of causation applicable – whether voluntary assumption of risk available as defence to action for damages under s 11 – whether contributory negligence available as complete defence or defence to action for damages under s 11 – whether circumstances falling within s 10(1) of Act amount to a “wrong” within s 8(a) Law Reform (Miscellaneous Provisions) Act 1965 – whether s 5A, s 5R, s 5S Civil Liability Act 2002 applicable to proceedings – circumstances in which defence of contributory negligence available at common law in respect of action to recover damages for injury, loss, damage or destruction caused by a wilful act of the defendant – whether owner and operator of aircraft can recover contribution from employer of linesman towards their liability to pay damages under the Act – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 - STATUTORY INTERPRETATION – Second reading speech – aid to construction – s 15AB Acts Interpretation Act 1901 (Cth) - JURISDICTION, PRACTICE AND PROCEDURE – Jurisdiction – Federal jurisdiction – claim for damages arising under Commonwealth Act – s 76(ii) Constitution – s 39(2) Judiciary Act 1903 (Cth) – whether provisions as to contributory negligence under State legislation applicable by State court exercising federal jurisdiction – Law Reform (Miscellaneous Provisions) Act 1965 – Civil Liability Act 2002 – s 79 Judiciary Act 1903 (Cth)
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Air Navigation Act 1920 Civil Aviation (Damage by Aircraft) Act 1958 (Cth) Civil Liability (Personal Responsibility) Act 2002 Civil Liability Act 2002 Civil Liability Amendment (Personal Responsibility) Act 2002 Compensation to Relatives Act 1897 The Constitution Contributory Negligence (Statutory Duties) Act 1945 Damage by Aircraft Act 1952 Damage By Aircraft Act 1963 (Tas) Damage By Aircraft Act 1964 (WA) Damage by Aircraft Act 1999 (Cth) Interpretation Act 1987 Judiciary Act 1903 (Cth) Law Reform (Miscellaneous Provisions) Act 1946 Law Reform (Miscellaneous Provisions) Act 1965 Statutory Duties (Contributory Negligence) Act 1945 The Rome Convention Trade Practices Act 1974 (Cth) Workers Compensation Act 1987 Wrongs Act 1958 (Vic)
CATEGORY:	Principal judgment
CASES CITED:	Australian Guarantee Corporation Ltd v Commissioners of the State Bank of Victoria [1989] VR 617 Bernstein v Skyviews & General Ltd [1978] 1 QB 479 Bhambra v Roet [2003] NSWCA 393 Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Reports 81-830 Bradley v Waterhouse (1828) M & M 154, 173 ER 1114, 3 Car & P 318, 172 ER 438 Butterfield v Forrester (1809) 11 East 60, 103 ER 926 Central Railway Co of Venezuelan v Kisch (1867) LR 2 HL 99 Commissioner for Railways v Schier [1964] NSWR 880 Daley v Gypsy Caravan Co Pty Ltd [1966] 2 NSWR 22 Davis v Nolras Pty Ltd [2005] NSWCA 379 Derry v Peek (1888) 14 App Cas 337 Donoghue v Stevenson [1932] AC 562 Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122 Glen v Korean Airlines Co Ltd [2003] EWHC 643 (QB); [2003] QB 1386 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 Grant v Australian Knitting Mills Ltd [1936] AC 85 Hampic Pty Ltd v Adams [1999] NSWCA 455 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; (2002) Aust Torts Reports 81-673 Lane v Holloway (1968) 1 QB 379 March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 Monie v Commonwealth of Australia [2007] NSWCA 230 O’Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 Piro v W Foster & Co Ltd [1943] HCA 32; (1943) 68 CLR 313 Prestige Property Services Pty Ltd v Choi [2007] NSWCA 363 Proctor v Jetway Aviation [1982] 2 NSWLR 264 Quinn v Leathem [1901] AC 495 Scholfield v Earl of Londesborough [1896] AC 514 Southgate v Commonwealth of Australia (1987) 13 NSWLR 188 State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 State Rail Authority of NSW v Watkins [2001] NSWCA 405 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514
TEXTS CITED:	Clerk & Lindsell on Torts, 19th ed (2006) Sweet & Maxwell F Trindale & P Cane The Law of Torts in Australia, 4th ed (2007) Oxford University Press J C Campbell, “Contribution, Contributory Negligence and Section 52 of the Trade Practices Act” (1993) 67 ALR 87 J G Fleming, The Law of Torts, 9th ed (1998) LBC Information Services P Vout (ed), Torts: The Laws of Australia, 2nd ed (2007) Thomson Legal & Regulatory Group
PARTIES:	40302/07 ACQ Pty Limited - Appellant Gregory Michael Cook - First Respondent Country Energy (formerly known as Northpower) - Second Respondent 40303/07 Aircair Moree Pty Ltd - Appellant Gregory Michael Cook - First Respondent Country Energy (formerly known as Northpower) - Second Respondent 40363/07 Gregory Michael Cook - Appellant Country Energy (formerly known as Northpower) - Respondent 40454/07 Country Energy (formerly known as Northpower) - Appellant Michael Gregory Cook - First Respondent Aircair Moree Pty Limited - Second Respondent
FILE NUMBER(S):	CA 40302/07; 40303/07; 40363/07; 40454/07
COUNSEL:	B Walker SC; G Curtin; Y Cachia (ACQ Pty Ltd & Aircair Moree Pty Ltd) P Menzies QC; G Giagios (Gregory Cook) M Elkaim SC; P Khandhar (Country Energy)
SOLICITORS:	Riley Gray-Spencer Lawyers, Sydney (ACQ Pty Ltd & Aircair Moree Pty Ltd) Whitelaw McDonald, Erina (Gregory Cook) Turks Legal, Sydney (Country Energy)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4202/04
LOWER COURT JUDICIAL OFFICER:	Johnstone DCJ
LOWER COURT DATE OF DECISION:	14/5/07