| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : AUSTIN -v- THE ELECTRICITY NETWORKS CORPORATION [No 2] [2013] WADC 41 CORAM : EATON DCJ HEARD : 4-12 FEBRARY 2013 DELIVERED : 27 MARCH 2013 FILE NO/S : CIV 1735 of 2008 BETWEEN : DALE ANTHONY CHARLES AUSTIN Plaintiff
AND
THE ELECTRICITY NETWORKS CORPORATION
Defendant
Catchwords: Negligence personal injury - Plaintiff engaged in criminal conduct - Occupier's Liability Legislation: Occupiers Liability Act 1985
Offenders (Legal Action) Act 2000 Result: Plaintiff's claim dismissed
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Representation: Counsel:
Plaintiff : Mr T Lampropoulos SC
Defendant : Mr G R Hancy
Solicitors:
Plaintiff : Simon Walters
Defendant : DLA Piper Australia
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 265 ALR 490
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 265 ALR 490
Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209
Keene v Carter (1994) 12 WAR 20
The Queen v Bernhard [1938] 2 KB 264
The Queen v Waine [2005] QCA 312
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51; (2008) 26 WAR 234
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1 EATON DCJ: The Avon River rises in the wheatbelt of Western Australia and makes it way past the towns of York, Northam and Toodyay to its confluence with the Swan River near Perth. Before doing so it passes through the Darling Range, a low escarpment running north-south to the east of the Swan Coastal Plain. In that part of the river valley is a pool of water called Cobbler Pool and the east-west railway line linking Perth with the eastern Goldfields and ultimately the eastern states.
2 Not far from Cobbler Pool and the railway line are a number of quarries. Boral Resources (WA) Limited, for a time, operated one of those quarries on land adjacent to the Avon Valley National Park to the west and the railway line to the north-west. The land on which that quarry is found may be described as 543 Cobbler Pool Road, Morangup. It is more particularly described as being Lot 104 on Plan 18335, the whole of the land comprised in Certificate of Title Volume 2092 Folio 483. Boral Resources operated the quarry (which I will refer to henceforth as 'the quarry') until 1998. It has, since then, been disused. The plant and equipment there has been partly dismantled. 3 Vehicular access to the quarry is predominantly from the Perth-Toodyay road. There are, and have been, a number of ways of accessing it. 4 The area beside the river, being not too far distant from the Perth metropolitan area, is visited from time to time for a variety of reasons. The Avon Descent, for example, is an annual event for watercraft on the river held on a weekend over two days in August of each year. It begins in Toodyay and ends in Perth. 5 The area is also frequented by those involved in the maintenance of the railway line, those involved in national park management, those involved in resource exploration or extraction, those involved in the provision of electricity supply, campers, trail bike and four-wheel-drive enthusiasts, hunters, bush walkers and bird watchers. 6 During the Avon Descent in each year, Cobbler Pool is the overnight camping stop for competitors, organisers and spectators. Prior to 1999, that particular area attracted up to 10,000 people, the bulk of whom would arrive on the Saturday, camp overnight and leave on the Sunday. Not surprisingly, management of such a large number of people in what is little more than a bush camp site was difficult. In the years following 1999, organisers of the event worked to reduce the number to 2,000 to (Page 4)
3,000 people. Historically, since 1999, volunteers and officials working for the event have attempted to prevent people from accessing the quarry. 7 The plaintiff, Dale Anthony Charles Austin, is 32 years old. Prior to July 2002 he had worked for 7 1/2 years as an air conditioning installer. 8 Reece Brian Craddock is the same age as the plaintiff. They have known each other since their high school days. In 2002 Reece Craddock was living with the plaintiff and his family. 9 In about June 2002 Reece Craddock and a friend, Dave Graham, were in the Avon Valley collecting firewood when they noticed a quarry on the other side of the river. They decided to inspect and forded the river on foot. They noticed, said Reece Craddock, that 'the whole place was abandoned and there was scrap metal laying everywhere.' Following their inspection of the quarry they returned home with their load of firewood. 10 Reece Craddock and Dave Graham, their interest aroused, went back to the quarry a short while later. On this second occasion they entered from the quarry side of the river. Reece Craddock had been a scout and had, as part of his scouting, hiked through the Avon Valley using a map provided for that purpose. When he revisited the quarry he took that map with him. 11 They approached the quarry on a road near Cobbler Pool and came upon a gate locked with padlocks. Reece Craddock removed a padlock and replaced it with one of his own. They arrived at the quarry and occupied themselves, collecting scrap metal and looking around. On departure they passed through the same gate, unlocking and locking Reece Craddock's padlock, in effect, securing access for himself and barring others. He later discussed his find with the plaintiff. They decided to return with a utility for the purpose of gathering scrap metal from the quarry and selling it to scrap metal dealers 'to grab some extra cash'. Mark Daly, a friend of both, whose father owned a utility, was also involved. 12 Reece Craddock said: I explained to them, being a mine, like, it was like a gold mine out there for people that – you know, with scrap metal and that. Howard Charles Stapleton, who gave expert evidence for the plaintiff, said that copper electricity cables have 'significant scrap value'. (Page 5)
13 They were able to borrow the utility on Sunday 21 July 2002 and on that day, at about 5.30 pm, the three of them, seated on the bench seat, set out for the quarry with Mark Daly driving. Reece Craddock had his map and gave instructions to him. They took with them two torches and some tools including a pair of pliers or wire-cutters and a hacksaw. It appears that they followed the same route that Reece Craddock and Dave Graham had previously taken, past Cobbler Pool, unlocking the padlock placed on the gate by Reece Craddock to gain access. 14 It being July, the sun was setting or about to set at the time of their departure and by the time of their arrival at the quarry, some 1 1/2 hours later, it was dark. Recollections as to the state of the light differed. The plaintiff said that it was 'pitch black'. Reece Craddock said that it was a moonlit night. 15 Upon arrival they parked the utility and set to work with their tools. Among the valuable metals present were many metres of electric cable being comprised predominantly of copper wire within a sheath of plastic or rubber. The cabling had to be cut, using the hacksaw, into lengths suitable for stacking on the tray of the utility. They worked for several hours, taking it in turns to use the hacksaw until the blade broke, bringing that enterprise to a halt. In consequence, attention was turned to other parts of the quarry. 16 Reece Craddock and the plaintiff made their way to a fenced compound housing an electricity transformer. The plaintiff had what he described variously as wire cutters or pliers and Reece Craddock carried a torch. With the hacksaw out of action they were looking for smaller gauge wire that could be cut. 17 The compound was a rectangular enclosure fenced on all sides with metal sheeting standing 2.4 m above the ground. The eastern and western sides each had a double gate capable of being secured by a sliding bolt and padlock. In the centre of the compound was a concrete plinth forming the foundation for a metal structure upon which the transformer was placed. The top of the transformer was about 3.3 m above the ground. Within the compound the transformer sat about 1.75 m from the eastern and western gates and about 1.3 m from the northern side. 18 It is clear that the built structure of the quarry, when in operation, relied on a supply of electricity to power various components of the quarry apparatus such as excavators, crushers and conveyers. The defendant supplied electricity to the quarry operator, Boral Resources (Page 6)
(WA) Limited. It did so via its overhead wire network carrying 3 phrase 22,000 volt electricity. The various electric motors used by Boral Resources required a 3 phrase 415 volt supply. The purpose of the transformer was to convert the 22,000 volt supply arriving from the overhead power network to a 415 volt supply to Boral Resources. 19 As an operating quarry there was, adjacent to the compound, a switch room. 415 volt power was distributed from the transformer by cables through a PVC conduit beneath the surface of the earth under the compound fence to the adjacent switch room. That housed, in a clean and weatherproof environment, metering equipment and equipment for starting and stopping the various electric motors at the quarry. 20 The 22,000 volt feed originated on a line called 'RG', an abbreviation for 'Rolling Green', being the defendant's name for that district. Each pole on that line was given a number with the prefix 'RG', such that the first pole on that line was RG1 situated near Wundowie. Each pole on that line was consecutively numbered such that the last pole prior to arrival of overhead power at the transformer at the quarry was RG216. 21 In December 1998 Boral Resources requested that the defendant disconnect the electricity supply to the quarry. On 19 January 1999 the defendant attended the quarry and took a final meter reading to finalise accounts to Boral Resources. Electricity to the quarry was disconnected by the defendant's employees opening the high voltage isolation links mounted on poles between the overhead power line conductors and the transformer high voltage bushing terminals. From that point on, the wires to the bottom of the isolation links were de-energised and the wires connecting to the isolation links were energised, they being directly connected to the overhead power line. That line ran up the hill to RG208 which was equipped with a pole-top switch, the distance from the transformer to RG208 being about 950 m. 22 I find, as a matter of fact, that the quarry was the freehold property of Boral Resources with the exception of the compound, the transformer and the overhead power network, including poles and all associated apparatus, which belonged to the defendant. The metering equipment and copper cables outside the compound were the property of Boral Resources. 23 On the night the plaintiff went to the quarry the switch room, adjacent to the northern aspect of the compound, had been removed, sold by Boral Resources to another company whose contractors or employees had come to the quarry to remove it. The switch room had (Page 7)
been above ground, mounted on metal posts. It appears that, at the time of its removal, the metal supports or posts closest to the compound, were left in place. There were six, placed evenly along the northern aspect of the compound with the outer-most being at the north-eastern and north-western corners. At the top of each was a flat metal plate which proved to be a useful, albeit small, platform for any curious person who might wish to peer into the compound over the 2.4 m fence. One could do so by standing on the small metal platform and holding onto the top of the fence. 24 When Reece Craddock and the plaintiff approached the compound that is what they did. In fact, having done so and noticed wires coming down from above the transformer, they scaled the fence and jumped, displaying a degree of youthful athleticism, onto the top of the transformer. That was a confined space so Reece Craddock jumped or climbed from the top, while still holding the torch, leaving the plaintiff standing on the transformer with the wire-cutters. Reece Craddock, standing on the ground, shone the torch on wires that might be cut and taken. As he did so the plaintiff leaned out in the direction of a wire which, unbeknown to him, carried 22,000 volts of electricity. He did not actually make physical contact before the current leapt the short distance to the wire cutters and passed through him to the metal transformer on which he was standing. As Reece Craddock put it 'This big blue thing just jumped straight across to him'. He said it was like a blue lightning bolt and that the plaintiff lit up 'with a bang'. 25 It seems that Mark Daly, who was not in the compound or on the transformer, saw what happened from some distance away and, in panic, ran to the utility. Reece Craddock, clearly shocked by the spectacle and perhaps fearful for his own well-being, scrambled back over the fence and went to find Mark Daly who was about to leave in the utility. Reece Craddock convinced him that he should not do so and that they needed to return to the compound to help the plaintiff who had been blown off the top of the transformer and lay on the ground within the compound. 26 Reece Craddock and Mark Daly returned to the compound and, using a metal cable tray as a ladder, manhandled the plaintiff back over the fence. They then, using a metal cable tray as a stretcher, carried him to the utility. They emptied the tray of the utility of collected cable, wrapped the plaintiff in some clothing and placed him on the tray. Mark Daly drove to Gidgegannup, which was the nearest settlement, a hamlet on the Perth-Toodyay Road. Reece Craddock sat in the back (Page 8)
with the plaintiff. At Gidgegannup they dialled 000 on a public phone and in due course the plaintiff was taken by ambulance to Royal Perth Hospital. 27 The plaintiff's injuries were significant and led to bilateral below-knee amputations. After four weeks in Royal Perth Hospital he was transferred to Shenton Park Rehabilitation Clinic where he underwent an exercise and physiotherapy program with prostheses fitted to both legs.
Expert evidence 28 Howard Charles Stapleton was called by the plaintiff. He is a very experienced electrical engineer. He visited the quarry and inspected the compound on 1 September 2002. He said that the compound was on a flat area away from the actual quarry works. He found it to be enclosed with a sheet metal fence with matching double gates on opposing sides, each with a sign: 'Danger High Voltage'. On one side, he said, the gates were locked with a padlock. On the other side the gates had a padlock and bolt but it was not locked. That gate could not, however, be opened because of a build-up of mud at its base. 29 Mr Stapleton said that Australian Standard 2067 was applicable to the compound in terms of its enclosure. That standard, he said, requires that a compound be enclosed by a fence at least 2,500 mm above external ground level. The upper 500 mm might consist of horizontal strands of barbed wire but that was not mandatory. He measured the height of the fence around the compound and found it to be 2,400 mm above external ground level. He said that the difference was not a very serious deviation from what should have been done. The height of the transformer, he said, had been deliberately increased using the concrete pedestal or plinth. 30 Mr Stapleton agreed with counsel for the defendant that it was, at the relevant time, standard practice to de-energise electrical equipment close to the equipment so that it was apparent to those working in close proximity that it was, indeed, de-energised. He agreed that it was not necessary to have a pole-top switch near a transformer. In the metropolitan area and in most rural systems, he said, there will be a pole-top switch between each sub-station so that a portion of the power line can be isolated from the network for maintenance purposes. (Page 9)
31 As to the issue of transformers making a humming noise when in operation, Mr Stapleton confirmed that there was no applicable standard in that regard. 32 Mr Stapleton told counsel for the defendant that he did not disagree with anything in the report prepared by David Allen, who gave expert evidence for the defendant. 33 Mr Allen, also a very experienced electrical engineer, had searched for a rule or standard applicable specifically to de-energising a transformer in a compound. He found none. He had never heard of a transformer being isolated at a pole-top switch. He agreed with Mr Stapleton that the usual practice was to isolate equipment close to it so that those working on the equipment would, at all times, have the mechanism of isolation in line of sight. That was standard practice for obvious safety reasons.
The Action 34 The plaintiff sues the defendant for damages, pleading that it was negligent and in breach of the Occupiers Liability Act 1985 because it failed to disconnect the electricity supplied to the quarry at RG208, failed to remove the meter-poles, failed to erect prominent signs warning that, despite the quarry having been closed, the power line near the top of the transformer was still alive and dangerous, carrying 22,000 volts, allowed the compound and the overhead wires leading to it to remain in an unsafe state after closure of the quarry and failed to prevent access to the area of the compound and its electricity supply. 35 In response, the defendant pleads that the plaintiff was not owed a duty of care under the Occupiers Liability Act because he was at the quarry on the night in question and in the transformer compound with the intention of committing, or was committing, an offence punishable by imprisonment, namely stealing, attempted stealing or attempted criminal damage. In addition, the defendant pleads that the plaintiff went to the quarry under cover of darkness and was a trespasser, with no authority to be there or to remove material from the site. The defendant pleads that the site was locked with gates and fencing, that the compound was locked with gates and fencing and that there was ample signage indicating that the quarry was the property of Boral Resources and, so far as the compound was concerned, indicating the danger of high voltage electricity. (Page 10)
36 In addition, the defendant pleads that the plaintiff cannot recover damages by the reason of the provisions of the Offenders (Legal Action) Act 2000 having regard to its contention that the plaintiff and his companions were at the quarry with the express purpose of committing the indictable offence of stealing. 37 In reply, the plaintiff pleads that he honestly and reasonably believed that the things he was taking had been abandoned and that his injuries arose from a risk created by the defendant to which he was exposed in common with others who may have been at the quarry at about that time and who were not engaged in criminal activity.
The Law 38 Historically, the common law liability of occupiers to their visitors and others on their land came to be governed by a well-defined pattern of responsibility, the distinguishing feature being that, in lieu of a general standard of care, it imposed on the occupier different duties dependant upon the class of visitor – invitee, licensee, trespasser; with varying specific standards of care attached to each class (see: Fleming's, The Law of Torts, 10th ed [22.10]. The High Court in Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 swept away those distinctions, simplifying the operation of the law to provide that, in an action in negligence against an occupier, all that is necessary to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care to the plaintiff is an application of ordinary principles of negligence. It was said that a pre-requisite of any such duty was that there be the necessary degree of proximity of relationship and that the touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is, it was said, what a reasonable man would, in the circumstances do by way of response to the foreseeable risk (per Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614, 662 – 663). 39 Perhaps, reading the winds of judicial change, the Parliament of Western Australian anticipated change in the area of occupier's liability by enacting the Occupier's Liability Act 1985. It provided that s 5 to s 7 of the Act should have effect, in place of the rules of common law, for the purpose of determining the care which an occupier of premises is required, by reason of occupation or control of premises, to show towards a person entering on the premises in respect of dangers to that person (Page 11)
which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is, by law, responsible. 40 Section 5(1) of the Act prescribed the duty of care of an occupier. Section 5(3) provided, however, that a person on premises with the intention of committing, or in the commission of an offence, punishable by imprisonment is owed only a limited duty of care, that being a duty not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property. 41 In Western Australia, State Parliament later sought to restore what was said to be a previously well-established principle of common law to the effect that a person engaged in unlawful behaviour cannot bring an action for loss or injury arising out of that behaviour. In the second reading speech of the Offender's (Legal Action) Bill 2000 the relevant minister made reference to s 5(3) of the Occupier's Liability Act 1985 allowing a person who has entered another's land to sue, in certain circumstances, for compensation for injury or loss suffered on the land. The Bill would not, as was the case with the Occupier's Liability Act be limited to the duty owed by an occupier of premises but would apply to all legal actions, whether the cause of action arose before or after its enactment. Having regard to the second reading speech by the relevant minister, the driving considerations behind the legislation were matters of public policy. The Offenders (Legal Action) Act 2000 was passed into law. 42 The position, therefore, in Western Australia is that the common law of negligence is modified to some degree by the Occupier's Liability Act setting out the content of the duty of care owed by an occupier and limiting that duty in the case of risks willingly assumed by the person entering and in the case of those who enter with the intention of committing or in the commission of an offence punishable by imprisonment. 43 By contrast, the Offenders (Legal Action) Act provides a complete defence to an action in respect of injury or loss if the defendant shows that the injury or loss was suffered in the course of criminal code by the plaintiff. (Page 12)
44 The defendant invokes that defence, contending that the plaintiff's injury or loss was suffered in the course of criminal conduct by him. Criminal conduct is defined to mean: An offence must be an indictable offence. An offence is indictable if the trial of the offence can or has to be by jury. 45 Under the Criminal Code (WA) the term indictment means a written charge of an indictable offence presented to the Supreme Court or District Court in order that the accused person be tried by that court. In this State indictable offences are tried by jury in either the Supreme or District Court except when the accused person elects to be tried by judge alone if the conditions for trial by judge alone are met. Indictable offences may be contrasted with simple offences which need not be the subject of an indictment and may be dealt with on a prosecution notice in the Magistrates Court. 46 Section 378 of the Criminal Code provides that any person who steals anything capable of being stolen is guilty of a crime and is liable, if no other punishment is provided, to imprisonment for seven years. Chapter XL111 makes provision for summary conviction in the case of certain indictable offences. Certainly, the offence is stealing can be the subject of trial by jury and is, therefore, indictable for the purposes of the Offenders (Legal Action) Act. So, too, is the offence of attempted stealing and of wilfully and unlawfully destroying or damaging property. 47 Section 5 of the Occupiers Liability Act prescribes the duty of care of an occupier towards a person entering on premises. It provides, however, that a person who is on premises with the intention of committing, or in commission of, an offence punishable by imprisonment is owed a duty not (Page 13)
to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property. 48 There can be no doubt about the purpose of the plaintiff and his companions in visiting the quarry on the night of 21 July 2002. They went in a utility, with tools, with the intention of, according to the statement of claim, 'salvaging abandoned scrap metal'. The use of the verb 'salvaging' in this context means the gathering and utilisation of scrap material. The word 'scrap' means, in this context, rubbish or waste material. The word 'abandoned' in this context means left empty or unused. 49 There can be no doubt that the quarry was unused and had been so since 1998. It had, as pleaded by the plaintiff, the appearance of being disused. A few days after the plaintiff's injury, his father, Geoffrey Lionel Austin, Reece Craddock and another attended the quarry with a video camera. Film was taken of the transformer, the overhead wires, the compound, signage and the quarry. That film (exhibit C) graphically, although in a somewhat amateurish way, depicts the dilapidated state of the plant and equipment at the quarry. It appeared that machinery and structures had not been maintained. Some structures, such as the switch room, had been lawfully removed. 50 The plaintiff does not plead that Boral Resources had abandoned the quarry and its plant and equipment as a matter of law. Rather, the plaintiff pleads that 'the quarry gave the appearance that it had been abandoned.' 51 The authors of 'Sackville and Neave-Australian Property Law', 9th ed, par 2.42 note: There is significant Australian judicial support for the proposition that relinquishment of physical possession of a chattel, coupled with a clear and unequivocal intention to renounce ownership, is effective to divest the interest of an owner or possessor. 52 Justice Ipp considered the issue of abandonment in Keene v Carter (1994) 12 WAR 20 where he said (26): I turn now to the issue of abandonment. In Simpson v Gowers (1981) 121 DLR (3d) 709 the Ontario Court of Appeal approved the following definition of abandonment: 'Abandonment occurs when there is "a giving up, a total desertion, and absolute relinquishment" of private goods by the (Page 14)
former owner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property ...' In Jigrose v Drummond Kiefel J remarked that '(c)ases involving property which can be said to be truly abandoned will ... be relatively rare.' He [sic] said: 'As a general proposition, if I throw something away I truly abandon it. I intend no longer to retain possession. I do not propose to seek it out and I have no further interest in ownership. If however I lose something, I have not those intentions. I could not be said to have abandoned it.' In the course of his [sic] judgment Kiefel J referred to the importance of the intention of the owner in determining whether a chattel has been abandoned. Plainly, the mere fact that a chattel has been lost does not lead to an inference that it has been abandoned. Even if the search for a lost chattel is terminated it does not necessarily follow that the chattel has been abandoned. Nevertheless, an owner of a chattel who loses it, may initially not have the intention to abandon it (in which case it is not abandoned) but may thereafter change his or her mind, and form a specific intent to relinquish ownership in the chattel. That, in my view, would give rise to an abandonment. This may occur, for example, when the owner regards the lost thing as being of little value, or of no personal importance to him or her. Inferences may be drawn of an intention to abandon from such matters as the value of the chattel, the circumstances under which and where it was lost, the length of time for which it has been lost, and the attempts that the owner has made to ascertain its whereabouts: see R v MacDonald where it was held (at 730) that inferences as to whether property has been abandoned can be drawn from the nature and value of the property and the place where it was found. Generally, however, it would be difficult to establish, inferentially, the abandonment of a lost chattel by the owner. 53 In the matter before me there can be no suggestion that the property taken or intended to be taken by the plaintiff and his companions was lost by its true owner. 54 There is no evidence before me supporting the proposition that Boral Resources had renounced ownership of the quarry or the plant and equipment within it. In my view, it remained, notwithstanding the state that it was in, the property of Boral Resources. There is no evidence before me supporting the proposition that the defendant had renounced ownership of its property. 55 So far as the criminal law is concerned, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property. A person who takes anything capable of being (Page 15)
stolen or converts any property is deemed to do so fraudulently if he does so with an intent to permanently deprive the owner of the thing or property of it or any part of it. 56 I conclude that the materials, plant and equipment at the quarry was the property of either Boral Resources or the defendant depending upon its location. It was, in each case, property capable of being stolen, it not having been abandoned in the legal sense. 57 There can be no doubt that the intention of the plaintiff and his companions in going to the quarry was to collect property, take it from that site and sell it, thereby permanently depriving the owner of that property. Having regard to s 371 of the Criminal Code the plaintiff and his companions were in the act of fraudulently taking property capable of being stolen. In fact, by reason of the injury to the plaintiff, they abandoned the enterprise in the best interests of the plaintiff. 58 The Criminal Code provides that when a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than mere preparation to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence. It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence or whether the complete fulfilment of his intention is prevented by circumstances independent of his will or whether he desists of his own motion from further prosecution of that intention. 59 The plaintiff and his companions on the night in question certainly, in my view, attempted to commit the offence of stealing and, in doing so, committed an indictable offence being an offence that can or has to be tried by jury. 60 The plaintiff and his companions took with them a hacksaw and wire-cutters with the express purpose of cutting wire and cabling into lengths suitable for transport. Having arrived at the quarry they set about the business of cutting lengths of cabling and in doing so, on the face of it, wilfully damaged property that was not theirs. As a matter of criminal law, such an act is unlawful unless authorised, excused or justified by law. I conclude that there was present no circumstance which might render the damage to the property inflicted by the plaintiff and his companions as authorised, justified or excused, subject to consideration of certain (Page 16)
provisions of the Criminal Code raised by the plaintiff as relieving him of criminal responsibility for his acts on the night in question. 61 The first line of the defendant's defence, as enunciated by its counsel is that afforded by the Offenders (Legal Action) Act. To mount that defence the defendant must show that the injury or loss was suffered in the course of criminal conduct by the plaintiff. If it does the plaintiff carries the burden of proving that the defence does not apply. 62 To return to the plaintiff's intention on the night in question, it was, as pleaded, for the purpose of 'salvaging abandoned scrap metal'. I accept that the quarry was disused, gave the appearance of having been disused for some time and was in a state of dilapidation. The property, the subject of the plaintiff's intentions was, in my view, clearly someone else's property, in all probability, belonging to the owner of the quarry no longer in use. The use of the word 'scrap' means, as already mentioned, in this context, rubbish or waste material. That which was to be taken was clearly valuable. The intention of the plaintiff and his companions was to sell that which was taken. It could not, in my view, reasonably have been regarded by the plaintiff and his companions has having been discarded by its owner in a way that, in an urban setting, a home owner might discard chattels by placing them on the verge at the roadside in the expectation that they will be taken by municipal contractors or scavengers. 63 I accept the evidence of Reece Craddock to the effect that, in order to gain access to the quarry, they had to pass through, on the road to it, a locked gate. It is the case that, on a previous visit, Reece Craddock had removed a padlock and replaced it with his own, thereby barring access to others and ensuring access to Reece Craddock and any companions who might accompany him. Given that Reece Craddock and the plaintiff had known each other since high school days and that Reece Craddock lived with the plaintiff and his family at the time, I am satisfied that the plaintiff would have been well aware, when making their way to the quarry, that they were entering via a gate that would otherwise have been locked to them but for Reece Craddock's interference with the padlocks. 64 The expedition undertaken by the plaintiff and his companions on the evening of 21 July 2002 was on a winter's night. I do not accept the proposition that they would have undertaken the expedition in the daytime but for the plaintiff, apparently at a circus in the metropolitan area with his son, being delayed until late afternoon and the utility borrowed for the expedition being only available to them on that day. I am satisfied that (Page 17)
the expedition was deliberately undertaken at night because to do what they intended to do was better done under cover of darkness, their presence at the quarry being less likely to be detected at night than in the daytime. 65 In reaching that conclusion, I do have regard to the statement of the law in Briginshaw v Briginshaw (1938) 60 CLR 336 where Dixon J said (362 - 363): It is often said that such an issue as fraud must be proved 'clearly', 'unequivocally', 'strictly' or 'with certainty' … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. 66 Under the Offenders (Legal Action) Act it is for the defence to show that the plaintiff's injury or loss was suffered in the course of criminal conduct by him. I must therefore have regard to the foregoing passage in considering whether, in this matter, the defendant has shown that the plaintiff's injury or loss was suffered in the course of criminal conduct, in this case an attempt to steal another's property. I am satisfied, having regard to the foregoing passage, that the defendant has shown that the plaintiff's injury or loss was suffered in the course of criminal conduct by him, subject to, of course, a consideration of the impact of s 22 and s 24 of the Criminal Code. Both sections relieve a person of criminal responsibility in certain circumstances. 67 The first provides that a person is not criminally responsible, as for an offence relating to property, for an act done or admitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud. 68 The second provides that a person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as he believed to exist. (Page 18)
69 In my view, in order for the defendant to show that the injury or loss suffered by the plaintiff was in the course of criminal conduct by him it must also show that the plaintiff was not relieved of criminal responsibility by either one or both of those provisions. Again, I must have regard to the foregoing statement of the law from Briginshaw v Briginshaw when considering whether or not the defendant has excluded those provisions. 70 In cross-examination the plaintiff was asked about his state of mind when going to the quarry. He had never been there before. What he knew about the quarry, before setting out on their journey on the night in question, was that which he had learned from speaking with Reece Craddock. Counsel for the defendant put to the plaintiff that when he went to the quarry he had no permission to be there or to take anything from it. He replied 'Like I said before, to us it was abandoned and disused and nobody owned it'. When asked what he was told that led him to believe that no one owned the property and that he could take whatever he liked, he replied 'Because there was piles of scrap up there he said'. Reece Craddock told him that '… it looked like an old mine site with old conveyors and rusted machinery, cables – electrical cables laying everywhere, motor bike tracks, it was a disused quarry'. 71 The plaintiff agreed with counsel for the defendant that Reece Craddock had not suggested to him that he had a right to go to the quarry and take things. He agreed also that he did not ask Reece Craddock whether he (Reece Craddock) had permission to go to the quarry and take things from it. 72 The plaintiff agreed with counsel for the defendant that he and his companions did gain access to the quarry through a 'wire fence type gate' although he had no recollection of passing through a gate with a chain and padlock. He later made mention of passing through a couple of wire fence gates. 73 Mark Daly, the driver of the utility, did not give evidence. Of the three who made the journey to the quarry on the night of 21 July 2002 only the plaintiff and Reece Craddock gave evidence. Their account diverged as to the identity of the driver of the utility. The plaintiff said that he drove. Reece Craddock said that Mark Daly drove. Reece Craddock impressed me as an unsophisticated but truthful witness. I do not suggest that the plaintiff was an untruthful witness but he was not as fulsome in his answers to counsel as Reece Craddock was. The plaintiff's recollection of the events of the night was clearly affected (Page 19)
to some degree by the traumatic incident which befell him. Where there is a divergence as between the plaintiff's account of the night and that of Reece Craddock, I prefer the latter. Accordingly, I find, as a matter of fact that it was Mark Daly who was driving when the plaintiff and his companions travelled to the quarry. The utility was his fathers. 74 As to the route taken on that night, I accept Reece Craddock's evidence to the effect that, at his direction, Mark Daly drove along Cobbler Pool Road and passed through the padlocked gate that Reece Craddock had previously interfered with. He identified the gate and the signs depicted in photographs (exhibit 134) as being the gate that they passed through and a sign that he saw. In fact, the gate is a two panel metal gate, with the two swinging panels padlocked together with a chain. To the right of the gate was a large, fairly new sign which announced 'NO UNAUTHORISED ENTRY BEYOND THIS POINT'. In the top right-hand corner of the sign was the name 'Boral' within the company logo. The two panels of the gate had, within the metal work, the words 'Western Quarries' and to the left of the right-hand panel, facing an oncoming motorist or pedestrian, was a clearly lettered, newer sign with the words 'Boral Resources'. 75 In cross-examination the plaintiff was asked about the signs identified by Reece Craddock, he replied: I don't remember entering the quarry. Doesn't mean to say I don't remember seeing signs. You're going to see something like what you said. If I would have seen them signs, I would remember seeing them signs. They would have been in the headlights of my vehicle. There was no signs that were seen in the headlights of my vehicle. Only thing I recall is a wire fence gate. 76 It is the case that the plaintiff and is companions were travelling at night on an unsealed road, little more than a bush track. They would, undoubtedly, have had the vehicle's headlights on, most probably on high beam. I find that when they arrived at the gate identified by Reece Craddock and later by the plaintiff's father, they would have stopped the vehicle while Reece Craddock got out and removed his padlock. He would have then opened the gate. Mark Daly would have driven through. Reece Craddock would have then closed the gate behind them and replaced his padlock. All three men, I find, would have seen the signs referred to. Only Reece Craddock, who has a reading disability, might have had difficulty reading them. It is inconceivable that the signs were not noticed by all three men and went without discussion. The plaintiff was adamant that he saw no signs. (Page 20)
77 The plaintiff told counsel for the defendant that the utility travelled for at least 2 km or 3km on an unsealed road which turned into a skinny, rough, rugged bush track, such that a driver would not attempt to traverse it in a conventional sedan. He said that when they entered the quarry the railway line and the river were on the left, that is, on the passenger's side of the vehicle. They drove, according to him, all the way into the quarry and parked. 78 On 28 July 2002, as mentioned, Reece Craddock went back to the quarry in the company of the plaintiff's father and younger brother. They did so, armed, as mentioned, with a video camera so that Reece Craddock might show the others the route taken to the quarry on the night of the injury and the salient features of the quarry and the compound. In cross-examination Geoffrey Lionel Austin, the plaintiff's father, was shown exhibit 134, two photographs of a gate on Cobbler Pool Road. He was asked whether he recalled passing through that gate on their way to the quarry. He replied: Yeah. You can see the new sign down the bottom, that Boral one. That was shining brand new and this other one up the top, 'No Authorised Entry Beyond this Point'. 79 Both, he said, were new signs. He assumed that they had been placed there after the plaintiff's injury. Given that neither Boral Resources nor the defendant were advised of the plaintiff's injury until February 2003 I do not make that assumption. 80 I conclude, as a matter of fact, as follows: 1. The plaintiff had never been to the quarry before 21 July 2002. 2. What he knew of the quarry prior to his arrival was derived from his conversations with Reece Craddock. 3. He made no enquiry as to the ownership of the land, the fixtures or any property at the quarry. 4. He made no request of anyone for permission to enter the quarry or to take or damage things from it. 5. He went to the quarry with the intention of taking property with a view to later selling it. 6. He went with the intention of damaging property, in order to take it. (Page 21)
7. When the plaintiff entered the quarry he knew that he was on another's property, probably that of Boral Resources. 81 When the hacksaw broke, the plaintiff and his companions turned their attention to smaller gauge cabling or wire, presumably limited by the capacity of the wire-cutters they had taken with them. When they turned their attention to the transformer compound it must have been obvious that, firstly, it was within the quarry, and secondly, it was fenced off from the quarry. In fact, the compound and the equipment inside and above was not the property of Boral but, rather, that of the defendant. 82 I find that the plaintiff and Reece Craddock knew that they were dealing with a transformer and associated electrical equipment. They did not turn their minds to the question of ownership as they were there to gather property and take it away, regardless of its ownership. The plaintiff said, in evidence-in-chief: Well of course we are going to have a look to see if there's overhead power lines when you are going to jump into a thing. And yes, there was overhead power lines. But to me, its … there – well, they're not going to be working when you've got copper cables that's coming out of the ground from the transformer that they are supposed to be connected to. And they're coming out of the ground, two and a half inch thick copper cable coming out of the ground that's been cut off. Of course your going to – no – no electricity here. 83 It is clear that an honest claim of right as to property must be an honest claim by the plaintiff as to an entitlement in, or with respect to that property (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, The Queen v Waine [2005] QCA 312). In order for the plaintiff to have held a belief that he had a right or entitlement to take property from the quarry he must have believed that the owner of the property that he was intent on taking had relinquished or renounced ownership of it. It is not the case that he believed he had an entitlement to take property from the quarry because he mistakenly thought that he had the owner's permission to do so or that he had acquired some title to it. I accept that he thought that the quarry was disused and dilapidated but I do not accept that he believed that 'nobody owned it'. I accept that an honest claim of right need not be reasonable and that it may be made out even though it might be unfounded in law or in fact (The Queen v Bernhard [1938] 2 KB 264). I conclude that the plaintiff and his companions went to the quarry with the intention of permanently depriving the owner of its property, that they did so undercover of darkness to avoid detection and that, in doing so, they had no belief that they had an entitlement to take that property. (Page 22)
In arriving at that conclusion I reiterate that it is for the defendant to show that the plaintiff's injury or loss was suffered in the course of criminal conduct by him and I have regard to the dicta in Briginshaw as to the proof of criminal allegations in civil proceedings. 84 In his reply to defence, the plaintiff pleads that he 'honestly and reasonably believed that the property had been abandoned, and that it was permissible to take scrap metal'. That pleading invokes s 24 of the Criminal Code. It is for the defendant to exclude the operation of this provision which would, if not excluded, relieve the plaintiff of criminal responsibility so far as the taking of the property from the quarry is concerned. The section is founded on the existence of a belief in the existence of a state of things. The plaintiff pleads that his belief, at the time, was that the property that he and his companions were taking had been abandoned. That boils down to a belief that the property that they were taking was not owned by anyone, that is, that whoever had owned it had relinquished or renounced ownership of it. For the reasons enunciated above, I am not satisfied that the plaintiff and his companions held a belief as to an entitlement or right to the property they were taking. Indeed, they did not differentiate between that which was, in all probability, the property of the quarry owner and that which was the property of the defendant, although it must have been obvious to them when they were at the transformer, that they were at the point where electricity arrived at the quarry and passed through the transformer. I reiterate my conclusion that the plaintiff and his companions went to the quarry on the night with the express purpose of taking property which they regarded as being valuable and with the intention of permanently depriving the owner of it. They had no belief, reasonable or otherwise, as to a right or entitlement to take the property that they collected. To the contrary, in my view, they must have known that it was another's property, in the case of that at the quarry itself, the property of the quarry owner and, in the case of the transformer, the property of the electricity provider. 85 In his reply the plaintiff further pleads that his injury and loss arose from a risk created by the defendant which was separate from any risk caused by any criminal conduct and that the plaintiff was exposed to the risk leading to his loss and injury in common with others who may have been at the quarry and not engaged in criminal conduct. Reference is made to s 5 of the Offenders (Legal Action) Act. By that section it is for the plaintiff to show that the injury or loss suffered by him arose from circumstances which were entirely separate from those to which the offender was exposed by reason of being engaged in criminal conduct and (Page 23)
to which the offender was exposed in common with others who were not engaged in criminal conduct. 86 In my view, while the plaintiff and his companions were in the quarry, busying themselves with the hacksaw and stacking lengths of sawn cable in the back of the utility, they were not exposed to any risk by either the defendant or Boral Resources. The plaintiff's injury and loss resulted from his coming into contact with the defendant's electricity. That risk did not manifest itself until the hacksaw broke and the plaintiff and Reece Craddock turned their attention to the transformer compound. That was in furtherance of their criminal conduct. It was in pursuance of that conduct that they scaled the 2.4 m fence around the compound and jumped onto the transformer. At that point they were both in grave danger but it was the plaintiff, with the wire-cutters in hand, who was most at risk. By jumping down from the top of the transformer, Reece Craddock dramatically reduced his risk. They had come to the conclusion that they were not at risk, that is, that they would not be electrocuted if they came into contact with wires above the transformer. 87 The plaintiff pleads in his amended statement of claim that when the transformer was energised it made a 'humming' noise and that after the quarry closed it ceased to make the humming noise. The plaintiff pleads that the defendant failed to erect prominent signs warning that, despite the quarry having been closed, the electricity meter having been removed and there being an absence of humming in the transformer, the power line near the top of the transformer was still alive and dangerous and carried 22,000 volts of electricity. The defendant, by its re-amended defence, put those matters in issue. 88 Counsel for the plaintiff asked him whether, when he looked over the compound fence, he could hear anything. He replied that there was no noise. When asked whether he thought about the possibility of there being an electric current in the area he replied: That there wasn't there. That there was no electricity at the site at all. Especially seeing them cables that come from the compound and the transformer itself that goes under the fence and just comes straight out of the ground directly where – where your feet was when we were standing on the ground. There was a lot of them that came out from there, that directly run from the low voltage site [sic] of the transformer. 89 Howard Charles Stapleton, as mentioned, an electrical engineer of many years experience, gave expert evidence for the plaintiff. (Page 24)
He proffered a quite technical explanation as to why a transformer would emit a humming noise. He concluded, in that regard: So it – they all hum and in some cases the noise is a problem and in large transformers Western Power have to build acoustic baffles around so that people around, living near them, can't hear it. These transformers were not very big but they had quite an audible hum to them or they would have had. They weren't humming when I was there. 90 There is evidence before me to the effect that, to some degree or another, all transformers emit a humming noise when in operation. Whether that was known to the plaintiff and Reece Craddock, prior to their arrival at the compound, is an open question. The plaintiff's evidence was that, when he looked into the compound over the fence there was no noise. Reece Craddock gave no evidence in that regard. My understanding of the plaintiff's case is that, by reason of the absence of any noise emitted from the transformer, he and Reece Craddock were led to believe that there was no power to it and felt secure in doing what they did within the compound. The evidence does not support that proposition. There is no evidence before me that the plaintiff knew, prior to 21 July 2002 that transformers emitted, in operation, a humming noise. The evidence is that, when the plaintiff looked over the compound fence, all was quiet. In any event, on the evidence of both the plaintiff and Reece Craddock, it was their observations, in the torch light, of the state of the cables leading from the transformer which suggested to them that the transformer was no longer in operation. In fact, it was not. What was not known to them was that the point of isolation of the transformer was just above it. The plaintiff was only able to reach the wire carrying a 22,000 volt current by standing on the transformer. The assumption made by both the plaintiff and Reece Craddock as to the supply of electricity to the transformer proved to be tragically wrong. It was an assumption arrived at in a matter of moments based on what they saw in the illumination afforded by a single torch. 91 The plaintiff's contention is that he was exposed to the risk in common with others who were not in engaged in criminal activity. I am satisfied, as mentioned earlier in this judgment, that, as a matter of fact, the area in which the quarry was situated, adjacent to the Avon Valley National Park and the Avon River and its permanent pools such as Cobbler Pool, was frequented by range of visitors. Over the weekend of the Avon Descent there might be a great many people in the area. At other times there might be bush walkers, campers, bird watchers, trail bike and four-wheel-drive enthusiasts in the vicinity of the quarry and, perhaps, venturing into it. It is evident, particularly from the film (Page 25)
taken by the plaintiff's father, that the quarry had been visited over time by scavengers, some of whom would have been attracted by 'scrap' metal. To Reece Craddock it was 'scrap metal heaven'. He and David Graham discovered it while gathering firewood. It does seem likely that others, in the bush for one reason or another, might also stumble across it and some of those might be attracted, as Reece Craddock was, to its potential for some extra cash. 92 It is true that the defendant could have isolated the transformer by opening the pole-top switch at RG208 which would have rendered the entire quarry safe from an electrical point of view. The defendant had a reason for leaving the approximately 950 m of overhead wire and the 22,000 volt feed to the transformer alive. That was done for monitoring purposes. There was, as at 21 July 2002, no consumer dependant upon that section of overhead line. There had been none since the closure of the quarry. With the line left 'alive' the defendant would be able to monitor remotely whether there was any interference with it, by reason, for example, of falling trees, the growth of branches of trees or interference by birds or animals. If interference were detected the 950 m of overhead line might then be visually inspected and a maintenance crew might, if necessary, be dispatched to deal with the problem. 93 Putting to one side the question of whether the defendant might have done things differently, I must consider whether the plaintiff's injury or loss arose from circumstances which were entirely different from those to which the offender was exposed by reason of being engaged in criminal conduct. It was the plaintiff's criminal conduct that led him to be exposed to the risk. But for the criminal conduct the plaintiff and his companions would not have been at the quarry on the night in question. It may be that, had the hacksaw not broken, they would have filled the utility with all it could carry without going anywhere near the defendant's compound. As events transpired, with the hacksaw broken, the plaintiff and Reece Craddock turned their attention to the transformer compound. It is the case that there were signs on the eastern and western sides of the compound warning 'Danger High Voltage'. The plaintiff said, in cross-examination, that he could not remember seeing those signs or either of them. He said: I can't – I don't remember it. It's the – the last thing I remember is hopping onto that little step in front of the fence. And then after that, I've got no recollection of nothing until I wake up in the back of the ambulance at Gidgegannup. (Page 26)
94 Reece Craddock had no recollection of the signs at the compound warning 'Danger High Voltage'. He was asked, in cross-examination, whether he had a recollection of seeing padlocks and bolts on two sides of the compound. He replied that he did not because it was dark. They had just one torch between them. I conclude that, in their quest for wire they were attracted to the wire at the top of the transformer, clearly visible in the torch light and were intent on removing it. 95 In written submissions counsel for the plaintiff contended that the plaintiff was exposed to the risk of being electrocuted in common with other persons in the vicinity of the power line. That contention is not supported by the evidence. The reference to 'the power line' is a little confusing but was clarified by counsel in closing oral submissions when he said: The plaintiff's case is that there's a risk from the 950 metres of power line, which is left live. Certainly, part of it ends in the compound, so part of the risk is certainly there but there is also a risk associated with the balance of the power line being live. For example, as was mentioned in the evidence, if a line breaks and is left dangling in the quarry, that is obviously a source of danger. If a power pole goes over, that is obviously another source of danger. If trees come into contact with the power lines and people are in the vicinity of the tree, that is another source of danger. So we're not confining it, as the defendant tries to confine it, to only the compound. The risk's associated with the 950 metres of 22,000 volt power lines. 96 In his statement of claim, the plaintiff pleads, inter alia, that prior to July 2002 it would have been reasonably foreseeable that … there was a risk of contact between unsuspecting persons and the 22,000 volt electricity supply and the possibility of serious injury such that the continued supply of electricity to the point just above the transformer was unsafe. 97 My understanding of the evidence is that the overhead power lines which carried the 22,000 volt supply from RG208 to RG216 were, for virtually their whole length, at least 5.5 m above the ground but mainly 7 m above the ground. Poles supporting those overhead lines are normally about 100 m apart. The defendant's network throughout the state, not just in rural areas, but in urban settings, is based on carriage of electricity by overhead wires in much the same arrangement as existed from RG208 to RG216. Wherever the network extends, the overhead wires may represent a risk in the event of interference. Wires may be brought down by reason of, for example, a motor vehicle accident, wild weather or a bushfire. I conclude that in the absence of extraordinary interference, the overhead wire network, per se, does not present a risk to (Page 27)
the average citizen. Similarly, the overhead wire feed from RG208 to the quarry did not present a risk, in any general sense. 98 The significance of RG208 in the plaintiff's case is that it was equipped with a pole-top switch which might have been used to isolate the power supply to the quarry at that point rather than at the point above the transformer. The defendant had, in January 1999, disconnected the power to the quarry by opening the high voltage isolation links mounted on the poles above the transformer. On 20 February 2003 Edmund Francis Budas, a long-time employee of the defendant, having visited the quarry and assessed the situation there and, in particular at the compound, drove to RG208 where he, at ground level, pulled the handle down, thereby opening the pole-top switch, locked it in place and placed a danger tag on it. By doing so he isolated the electricity supply to the quarry at that point. The plaintiff pleads in his statement of claim that the failure of the defendant to do so at the time when power to the quarry was disconnected in January 1999 was, inter alia, negligent. 99 Returning to the need for the plaintiff to show that the risk to which he was exposed was suffered in common with other persons who were not engaged in criminal conduct, counsel for him submitted that there was a risk if there was a live power line and a person was engaged in activities which might bring him into contact with that live power line. The plaintiff was certainly engaged in activity which brought him into contact with live power. The object of doing what he did was to take the wire that, unbeknown to him, carried the power. I have mentioned on a couple of occasions in the course of this judgment the range of people who might visit the area in which the quarry is located. Of those, not many would have occasion to be in the area at night in the middle of winter. Those who might would, in all probability, be camping or perhaps hunting. The quarry, so far as I can tell from the many photos and the video exhibited, is not picturesque and would be unlikely to be an attractive camp-site. 100 There is ample evidence in the photos exhibited, of stripped cabling lying about the quarry, left over by those who visited with the same intention as the plaintiff and his companions. 101 Putting aside the particular circumstances of the plaintiff's visit to the quarry, I am not persuaded that other persons who might happen to come across the quarry, while not engaged in criminal conduct, might be exposed to the risk of electrocution. Certainly, there would be no risk by reason of being present at the quarry. There would be no risk by being in (Page 28)
the vicinity of the compound. There is evidence of persons, other than the plaintiff and his companions, gaining access to the compound, because there are, among the exhibits, photographs of damage done in the course of removal of cabling within the compound. I infer that those persons, like the plaintiff and his companions, were engaged in criminal conduct. As already mentioned, such evidence of intrusion relates to the period after 21 July 2002, although the evidence of the plaintiff and Reece Craddock tends to suggest that others might have been, with the same criminal intent, in the compound before them. 102 I conclude that the only persons who were likely to be exposed to the risk that the plaintiff exposed himself to on the night in question, would be those engaged in the same activity as the plaintiff and his companions, that being criminal conduct. The plaintiff has, in my view, failed to show that his injury and loss arose from circumstances which were entirely separate from those to which he was exposed by reason of being engaged in criminal conduct and to which he was exposed in common with other persons who were not engaged in criminal conduct. It follows the s 5(1) of the Offenders (Legal Act) Act does apply. The defendant has, in my opinion, shown that the injury and loss was suffered in the course of the plaintiff's criminal conduct. That is, by virtue of that provision, a good defence to the plaintiff's claim which, in my opinion, must fail. 103 I now turn to the provisions of the Occupier's Liability Act. In that Act the term 'premises' includes any fixed or moveable structure and the phrase 'occupier of premises' means a person occupying or having control of land or other premises. In the matter before me I find that Boral Resources was the occupier of the quarry and that the defendant was the occupier of the compound. By s 5 of that Act, the plaintiff, being a person in the compound attempting to commit the offence of stealing, being an offence punishable by imprisonment, is owed a limited duty of care by the defendant. The latter must not create a danger with the deliberate intent of doing harm or damage to the plaintiff and is not to act with reckless disregard to the presence of the plaintiff. 104 It could not be said that the defendant created a danger with the deliberate intent of doing harm or damage to the plaintiff or to any person. 105 By par 11 of the plaintiff's amended statement of claim he pleads that the accident was caused by the defendant's negligence and breach of the Occupier's Liability Act. By par 22 of the defendant's re-amended defence it pleads a denial of each and every allegation pleaded in par 11 (Page 29)
of the amended statement of claim and pleads, in particular, that the plaintiff was not owed a duty of care under that act because he was at the quarry and in the transformer compound with the intention of committing or was committing an offence punishable by imprisonment, namely stealing, attempted stealing or attempted criminal damage. In accordance with my findings the plaintiff was owed a duty only in limited terms. In reply, the plaintiff does not plead that the defendant acted with reckless disregard of him and the evidence before me does not support such a contention. 106 Section 4 of that Act makes it very clear that s 5 to s 7 are to have effect, in place of the rules of common law, for a particular purpose. In my view, it is clear from the terms of the Act that it does not create a new or discrete cause of action but rather serves to stipulate the standard of care to be applied by a court in determining whether there has been a breach of duty, that is, whether the conduct of the defendant was in accord with the standard required of it or whether it failed to meet that standard. In that sense, to make a claim in negligence is to do no more than assert that the conduct of the defendant was not in accord with or did not comply with the content of the duty of care owed by the defendant to the plaintiff. I take the view that there is effectively no distinction between an action of common law for negligence and an action under the provisions of the Act because the Act stipulates the content of the duty owed by an occupier. 107 In this state there are various lines of authority relating to the relationship between the Act and the common law of negligence: Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 [20]; Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 265 ALR 490 [19], [62]; Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51; (2008) 26 WAR 234. In some cases it has been held that the common law continues to determine whether an occupier owes a duty of care to an entrant to premises with the Act prescribing the standard of care required to discharge any duty of care imposed by the common law. In other cases it has been held that the Act covers the field and that there is no longer any common law duty of care owed by the occupier to the entrants. Other cases have been litigated on the basis that the occupier owes an entrant concurrent duties at common law and under s 5 of the Act. The issue is the yet to be finally to be determined in this State: Department of Housing and Works v Smith (No 2). (Page 30)
108 The plaintiff's action is brought under the Occupier's Liability Act and pursuant to the common law of negligence. There is, in my view, having regard to my findings, no point in considering the latter. Having regard to the provisions of the Offenders (Legal Action) Act and the Occupier's Liability Act and my findings in that regard, the defendant has a good defence to the plaintiff's claim under the former and is not liable, having regard to my findings and the pleadings, under the latter.
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