Brocklands Pty Ltd v Tasmanian Networks Pty Ltd

[2019] TASSC 26

[2019] TASSC 26

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2019] TASSC 26

PARTIES:  BROCKLANDS PTY LTD
  v
  TASMANIAN NETWORKS PTY LTD

FILE NO:  578/2015
DELIVERED ON:  28 June 2019
DELIVERED AT:  Hobart
HEARING DATES:  13-16, 19-23 March, 16 April, 22-24 May, 14 June 2018
FURTHER WRITTEN

SUBMISSIONS:  12, 14 December 2018

JUDGMENT OF:  Geason J
CATCHWORDS:

Torts - Negligence – Generally - Economic loss consequential upon damage to property – Not a case of pure economic loss.

Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529, distinguished.

Aust Dig Torts [20]

Procedure - Civil Proceedings in State and Territory Courts – Pleadings – Matters to be specifically pleaded –cause of action in negligence not pleaded.

Aust Dig Procedure [1180]

Torts – Negligence – Duty of Care – Public and other authorities – Breach of statutory duty relied upon does not confer a private right of action of – Not proven that the defendant acted beyond the scope of the immunity conferred by – Civil Liability Act s 40

Aust Dig Torts [27]

Torts – Essentials for action for negligence – Damage – Causation – Other cases – Process of inferential reasoning from circumstantial evidence – Causation not established on the balance of probabilities.

Aust Dig Torts [62]

REPRESENTATION:

Counsel:
             Plaintiff:  K E Read SC and A Kendall
             Defendant:  B R McTaggart SC and K Sluiter
Solicitors:
             Plaintiff:  Phillips Taglieri
             Defendant:  HWL Ebsworth Lawyers

Judgment Number:  [2019] TASSC 26
Number of paragraphs:  264

Serial No 26/2019

File No 578/2015

BROCKLANDS PTY LTD v TASMANIAN NETWORKS PTY LTD

REASONS FOR JUDGMENT  GEASON J

28 June 2019

Introduction

1. Winkleigh is a small township near Trevallyn in the north of Tasmania. The plaintiff was incorporated in 1996. It has operated the Brocklands nursery there since 1996 on a property known as Markfield.  It produces roses, ornamental plants and berries, and supplies them to commercial markets.  It is one of the leading wholesale nurseries in Australia.

2. Part of Brocklands' commercial operation is the propagation of tissue cultures capable of producing around 10,000 plants.  A tissue culture is a microscopic piece of plant grown under laboratory conditions.  Once the culture has grown it is planted into trays and moved to a greenhouse at the nursery.  It continues to grow and at a suitable stage the very small plants are placed into separate pots.

3. Karen Brock and Tim Phillips are directors of the plaintiff

4. The plaintiff purchases electricity from Aurora Energy. It is delivered to Markfield over the defendant's network, utilising its poles and wires.  

5. The plaintiff is not a customer of the defendant.

The defendant

1. The defendant is responsible for the electricity distribution network within Tasmania. It is a corporation established pursuant to the Electricity Companies Act 1997 and is a regulated entity within the meaning of the Electricity Supply Industry Act 1995 (the Industry Act) and the Electricity Reform Act 2012. It is required (and holds) a licence under s 17 of the Industry Act. It is a public authority for the purposes of the Civil Liability Act 2001 (the CLA). 

2. Until 1 July 1998, the Hydro Electric Commission (HEC) generated, transmitted, and distributed electricity in Tasmania.  Pursuant to the Electricity Companies Act all its assets, rights, and liabilities relating to the distribution business were transferred to Aurora Energy Pty Ltd on 1 July 1998. 

3. On 10 December 2010, Aurora Energy Pty Ltd held the licence to operate the electricity distribution network in this State, as the "Distribution Network Service Provider".

4. On 1 July 2014, pursuant to the Electricity Reform Act, all the assets, rights, and liabilities in Aurora Energy Pty Ltd's distribution business were transferred to the defendant. Thereupon the defendant was responsible for liabilities arising from damage caused by the distribution network. By s 20 of the Electricity Reform Act, actions against Aurora Energy's distribution business can be commenced against the defendant.

5. The defendant did not assume legal responsibility for any of the rights or liabilities relating to the generation of electricity by the HEC or Aurora. 

Regulation

1. Section 5 of the Industry Act creates the office of the Regulator. The Regulator is required under s 49A of that Act to produce a code. The code is known as the Tasmanian Electricity Code (TEC).  The TEC is binding on the defendant as a licensee pursuant to cl 1.1.3(c).

2. The TEC is a statement of obligations covering a wide range of matters relating to the distribution and pricing of electricity. It deals with matters as diverse as handling customer complaints, specifications for household electricity metres, and the maintenance of specified electrical voltages to customers at the point of supply. It imposes comprehensive supply reliability standards.

3. The Regulator is responsible for administering and maintaining the TEC, and administering procedures within it.  Powers of investigation and enforcement are conferred.  The Industry Act prescribes a penalty for failure to comply with requirements made under it, the regulations or the TEC: s 114A. It also prescribes a penalty for breach of a condition of a licence granted under it: s 114B. The Industry Act confers upon the Regulator powers to deal with breaches by cancelling licences: s 47.

Electricity for Brocklands Nursery

1. The electricity for the plaintiff's nursery is generated at a facility located in Trevallyn.  High voltage power travels about 14 kilometres along two high voltage lines, until it reaches a pole located at Markfield.  The pole was installed in 1987 by the HEC, and it forms part of the distribution network for which the defendant has taken responsibility. It is pole number 343836 (the pole).

2. It is located about 100 metres from the main building of the plaintiff's nursery. The plaintiff is the only recipient of electricity from the pole.

3. At the time the pole was installed the property was in the ownership of North Forest Resources.  The plaintiff leased the property in 1998 after the freehold was sold to Boral.  In 2001 the property was sold to Gunns Limited.  In May 2002, the plaintiff purchased the property.

4. When the pole was erected, a transformer number T690640 was installed on the pole by the HEC. It has never been replaced although its configuration has been modified since the event the subject of this action. The transformer was purchased from a specialist third-party manufacturer, Machinery Construction (Heidelberg) Pty Ltd.

5. In 1987 the HEC's practice was to purchase the pole top electrical infrastructure as single units. The units were delivered complete, and usually with arcing rods attached by the manufacturer, and sometimes painted.

6. The evidence suggests, and I find that that was the case with this transformer, which was placed on the pole by the HEC in the condition and form in which it was delivered.

7. The function of the transformer is to convert the 22,000v (high voltage) electricity to 230v or 240v (low voltage) electricity suitable to operate a household. Two cables arrive at the transformer from the power station in Trevallyn. They deliver high voltage electricity, and are referred to as the "Active A" and "Active B" lines. At the pole they pass through the transformer, from which low voltage electricity emerges.  Three low voltage (230-240v) cables leave the transformer and go to the main premises at Markfield.  These low voltage cables are single phase systems and are referred to as the "Active a", "Active b" and "Neutral" lines. 

8. The parts of the pole are a focus of the proceedings. They are shown in this diagram, which was tendered in the trial (D2) and shows the configuration of the pole:

   
   

   Pole 343836 - Transformer  T690640

9. Once electricity enters the plaintiff's property, it powers household appliances, and the plaintiff's nursery installations.

The circumstances giving rise to the action

1. On 10 December 2010 a branch from a tree fell across a high voltage power line. The effected line was located somewhere away from Markfield. As a result a recloser tripped at Glengarry, about six kilometres away, on the Trevallyn side of Markfield. A recloser is a circuit breaker and its function is to cut power to a high voltage line in a fault scenario such as occurred when the tree fell across the high voltage line. It cuts off the power and then switches it back on again. It does this very quickly. 

2. The recloser operated four times on 10 December 2010 before locking out. After that a crew was dispatched to remove the obstruction and manually turn the power back on.

3. The plaintiff's case is that the operation of the recloser generated a power surge. Such a power surge could be between two and five times the normal operating voltage of the line. The plaintiff's case is that a surge passed through the high voltage conductors and headed towards the pole, where high voltage electricity was able to enter the low voltage system because the pole was configured incorrectly.  The plaintiff's action arises from damage sustained by the programme logic controller (PLC) inside its potting machine, when this occurred. The plaintiff's case is that the surge of electricity exceeded the dielectric withstand voltage range of the PLC. This is the voltage range within which electrical equipment can operate.  The potting machine was engineered to have a dielectric withstand voltage range which tolerated 500 volts for one minute.  (All electrical equipment has such range, and it represents the capacity of an electrical device to sustain a maximum voltage for a specified period of time. Operation outside the withstand voltage range for longer than the applicable period, will result in damage to the equipment).

4. Damage such as this amounts to "harm" under s 9 of the Civil Liability Act 2002.

Pleadings

1. The plaintiff has pleaded its claim in terms which rely upon the statutory obligations arising from the Industry Act, and the TEC. This engages the Australian Standards and some design specifications, though exactly which are engaged is not agreed. It is alleged that it was the duty of Aurora Energy Pty Ltd to distribute electricity in accordance with the TEC; and in compliance with Australian Standard AS2067:2008, the applicable standard according to the plaintiff, for the design and erection of electrical power installations.

2. The way in which non-statutorily based duties are engaged is through the operation of the Industry Act, which requires compliance with the TEC under the terms of the licence to operate. The applicable standards are imposed as conditions of the licence. Compliance with the licence is enforced by the Regulator who has power to enforce compliance and punish non-compliance, including by imposing fines.

3. In its amended statement of claim, amended by an order of the court, made by consent on 13 March 2018, (the statement of claim) the plaintiff pleads as follows:

   "8By reason of the Industry Act it was the duty of Aurora Energy Pty Ltd to supply electricity in accordance with the Tasmanian Electricity Code.

   PARTICULARS

   iTo provide electricity at a voltage within the range provided for in paragraph 8.6.4 'Voltage' of the Tasmanian Electricity Code.

   iiTo provide electricity in accordance with paragraph 8.7(a) 'Safety and Other Manuals' of the Tasmanian Electricity Code.

   9On 10 December 2010 good electricity industry practice, as defined in the Tasmanian Electricity Code, for the supply of electricity in Australia complies with:-

   a     AS 2067:2008 being the applicable Australian Standard for the design and erection of electrical power installations.

   b     AS 7000:2010 being the applicable Australian Standard for the determination of separation between different power circuits on the same support (attached crossing).

   c The Energy Networks Association Code ENA 007:2006 Section 5.10.4 specifying 280 mm clearance lines to earth for a 24 kV highest system voltage.

   d     AS 2067:1984 being the applicable Australian Standard for earth matting.

   e     Any relevant engineering drawing(s) prepared by the Defendant or its predecessors in title including HEC Drawings B12335 and B14731.

   f     Inspection of overhead lines for component defects pursuant to Aurora Procedure 'Identification and Management of Overhead Line Defects' NP RAM03."

4. The scope of the statutory duty is pleaded as follows:

   "… the scope of the duty of the Hydro Electric Commission and Aurora Energy Pty Ltd to the Plaintiff in the supply and distribution of electricity to the property required it to:-

   aInstall an earthing system at the pole in accordance with AS2067:2008 and Drawing B14731 with sufficient separation of HV and LV earth systems such that danger to persons or equipment could not occur in the low voltage installation as a result of an HV fault or surge and described in Drawing B14731 at 2m.

   bInstall an earthing system at the pole in accordance with AS2067:2008 with an earth resistance value such that the rise of voltage of the earthing system is less than 2000V above true earth potential.

   cInstall the pole with a clearance distance between the transformer HV bushing and the LV conductor of not less than 280 mm, and to fail to ensure from November 1989 that there was a minimum 310mm clearance between the HV and LV conductors.

   dMaintain a minimum separation on the pole between phase and earth of 220mm for a BIL of 125 kV and 280 mm for a BIL of 145 kV.

   eSupply and install bare and unpainted arc gap rods on the pole.

   fInstall arc gap rods on the pole with the correct separation as provided in Drawing B12335 of 50mm in series.

   gEnsure that the pole complied with the accepted industry practice and Drawing B14731 that the resistance of the HV and LV earthing systems not exceed 30 ohms.

   hProvide, in accordance with AS 2067:1984, an earthing system on the pole for both HV and LV of sufficiently low resistance.

   iProvide earthing systems on the pole for both HV and LV either:

   iin accordance with AS 2067:1984; or,

   iiin accordance with AS 2067:2008.

   jInspect overhead lines for component defects every three (3) years.

5. The pleadings continue thus:

   11At diverse times during fault or surge events between…1988and 2012, but more particularly on December 10, 2010, the voltage to the property exceed the range permitted by the Tasmanian Electricity Code.

   12On 10 December 2010 the pole did not comply with paragraph 8.7(a) of the Tasmanian Electricity Code.

   13On 10 December 2010 the clearance between the transformer HV bushing and the LV conductor on the pole was approximately 110 mm.

   14On 10 December 2010 the arc gap rods on the pole were covered in paint.

   15On 10 December 2010 the left hand side bushing on the pole had a misaligned arc gap rod thereby creating an incorrect separation of 15mm in series and the right hand side arc gap rod had an incorrect separation of 10mm in series

   16On 10 December 2010 the resistance of the HV earthing system fitted to the pole was approximately 97 ohms.

   17On 10 December 2010 the earthing system for the pole was not in accordance with:

   a)        AS 2067:1984; or,

   b)        AS 2067:2008."

6. Each of these matters is said to constitute a "negligent breach of duty"(paragraph 18). The particulars of the negligent breach of duty pleaded are:

   i          The high voltage entered the low voltage system at or around the pole.

   ii         On 10 December 2010 the method by which high voltage electricity entered the low voltage system was by one or both of the following mechanisms:

   ·     Transfer of high voltage electricity within the transformer attached to the pole ('the transformer') from the HV transformer bushing to the LV active 'a' conductor; and/or,

   ·     Transfer of high voltage electricity from the HV earthing system to the LV earthing system by way of induced voltage during a fault or surge event.

7. The transfer of the surge is claimed to have been caused by one or more of the following negligent acts or omissions of the defendant:

   "The pole was poorly designed and installed by the defendant (formerly the HEC) and not in accordance with the required standards, causing the HV transformer bushing to be within 220mm (presuming BIL of 125kV) of the LV active 'a' conductor; namely 110mm. This incorrect proximity increases the likelihood of high voltage electricity entering the low voltage system of the plaintiff's premises causing damage.

   The spark gaps of the transformer right hand side HV bushing were misaligned. The spark gaps were approximately 60mm in series, when Hydro Electric Commission ('HEC') diagram B12335 required a separation of 25mm for each spark gap. This incorrect separation reduced the effectiveness of the transformer HV earthing system and increases the likelihood that electricity, following the path of least resistance, would enter the LV system in order to find a less resistive earth.

   The arc gap rods on the transformer right hand HV bushing were painted. Drawing B12335 does not prescribe painted rods. Further, it is not good electricity industry practice for arc gap rods to be painted because even a thin layer of paint has the effect of reducing the effectiveness of the rods when operation is required in a fault or surge  event  leading high voltage electricity to find less resistive paths to earth than otherwise designed.

   The HV and LV earthing system electrodes were placed approximately 300mm apart. By placing  earth electrodes closer than is permitted in AS 2067:1984 or AS2067:2008 or Drawing B14731, it was possible for high voltage during a fault or surge event to become induced into the LV earthing electrode at a sufficient voltage as to cause damage to the plaintiffs plant and equipment.

   The earthing system of the pole was not sufficient to yield a resistance value of less than 30 ohms as required by relevant standards and HEC drawing B14731. The resistance of the HV earthing system for the transformer was approximately 97 ohms as measured by the defendant. The high resistance of the HV earthing system increased the likelihood that electricity, following the path of least resistance, would enter either the LV earthing system by way of induction, or cause an 'arc' or 'flash' from the transformer right hand HV bushing to the LV active 'a' conductor allowing dangerously high voltage during a fault or surge event to travel from the pole to the plaintiffs premises causing damage to plant and equipment.

   Failure to identify and/or report and/or prioritise and/or attend to the defects referred to in paragraph 18(i) of this Statement of Claim."

8. The defendant denies the plaintiffs allegations pleaded at 8 and 9 of the amended statement of claim. It pleads that AS 2067:2008, and AS 7000:2010 have no application because they post-date the pole's installation in 1987.

9. The defendant describes ENA Doc 007:2006 as a specification (not a code), and of no application to the defendant. It submits the specification is developed for the design and manufacture of transformers by the manufacturer of transformers. The defendant pleads that it purchased its transformers as a whole unit from a specialist manufacturer, Machinery Construction (Heidelberg) Pty Ltd, based upon that specification.

10. The defendant admits pars 13, 14 and 15, does not admit pars 11 or 16, and denies 17 of the statement of claim.

11. The defendant is a public authority for the purposes of s.37 of the CLA. It pleads reliance upon ss 38 and 40 of the CLA. Each of those provisions confers significant protection upon a public authority. The plaintiff has not put a reply to either of those pleadings. (The plaintiff submitted in closing that the defendant had abandoned its pleading under s 40 of the CLA, but I do not accept this submission).

1. Some threshold matters require adjudication. Before turning to those matters the Court will deal with the content of the statutory duty. The defendant says that its statutory duty in respect of the configuration of the pole is fixed at the point of installation, meaning that AS 2067:1984 is the only relevant Australian Standard. It submits that it is not required to implement any changes to the pole even if the Australian Standards change; the Standards do not operate retrospectively.

2. It says that if the obligation was a continuing one as alleged by the plaintiff, the burden upon it would be an overwhelming one, since it is responsible for most of the electricity infrastructure in the State. By its defence it pleads responsibility for approximately 50,000 transformers. It says that it would likely cost $3000-$5000 per transformer to check and change the position of the HV and LV earths, as one example. Such obligation would be onerous to the point of being unreasonable. Indeed it could not realistically be complied with. For example a change in the applicable standard for earth wires would require excavation at every pole erected before the change to the standard was made, to check and relay those wires.

3. The court accepts the defendant’s submission. It holds that the standard which operated at the point of installation is the applicable standard. The position is not dissimilar to that which applies in respect of disability standards and I approach the matter on the same basis. Planning law adopts the same principle. There is not a continuing obligation to bring installations into accord with later versions of the published standards, absent a regulation to that effect or a direction from the Regulator in accordance with the powers vested in him. That could be done through the licensing regime, for example, but it has not been done. Good electricity practice is to be interpreted through this prism. Of course at the time of infrastructure replacement the standard applicable at the time is required to be implemented.

4. The CLA makes the sorts of considerations to which I have referred in [38] relevant to the existence of a duty, and the breach of such duty; s 38. Thus, even if the subsequent amendments to the Australian Standards applied, their application in an action, would be subject to Pt 9 of the CLA, an aspect the plaintiff has not addressed.

5. Inspection and maintenance obligations do not alter this conclusion. There is not a positive duty to implement the revised Standards.  Repairs fall into a discrete category where it can be expected the work will incorporate changes to Standards if the extent of the repair involves the replacement of significant components. It is a question of fact and degree.

6. It follows that pleadings based upon breaches of statutory duty based in the standards promulgated after 1987 do not apply to the pole. That means it is only AS2067:1984 that is applicable to the defendant's installation.

7. I am satisfied that HEC Diagram B14731 and B12335 are applicable. The ENA Doc 007:2006 is inapplicable to the defendant, for the reasons it submits.

8. The first threshold issue, is whether the action is for pure economic loss; the plaintiff says it is not. The second is whether the plaintiff has pleaded a case in negligence; the defendant says it has not. The third is whether a breach of the statutory duties alleged creates a private right of action; the defendant says it does not.

Economic loss and pure economic loss

1. The defendant characterises the plaintiff's action as one claiming damages for "pure economic loss".

2. Pure economic loss has been described as a loss which is not parasitic upon physical damage: Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 178 per Lord Goff. It is, in other words distinguishable from a claim based upon loss arising from damage to property; loss consequential to property damage. In his paper "the recovery and calculation of economic loss" published in Torts in the 90s (LBC 1997) N J Melaney, Editor, Sir Anthony Mason, explains pure economic losses as those losses which are not causally connected to or flowing from some personal injury or property damage suffered by a plaintiff. 

3. In Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529, liability was imposed for losses sustained by a plaintiff arising from a defendant's negligent act which caused damage to the property of a third party. The plaintiff had not suffered direct property damage. It nevertheless successfully pursued a claim for losses sustained in consequence of damage to the third party's property, which damage impacted its activities in a way which caused it economic loss. That is not the case here.

4. The defendant's submission derives from the language used by the plaintiff in correspondence before trial and submissions at trial. In its written submissions on opening, the plaintiff's senior counsel said:

   "The damages claimed are for pure economic loss.  The claims are for loss of profits, the cost of borrowing funds, a payment to the company's insurer and a claim for interest."

5. By letter to the plaintiff's solicitor dated 9 February 2017, the defendant's solicitors said:

   "We observe that the plaintiff's claim is limited to damages for pure economic loss."

6. In the oral submissions presented at opening the plaintiff's senior counsel said:

   "Damages are claimed for pure economic loss.  The claims are for loss of profits, the cost of borrowing funds, the payment to the company's insurer in respect of loss of profits and a claim for interest.  There's no claim for the damage to the PLC (potting machine), so this is not a claim for damage to property."

7. Whether senior counsel adopted the language used in his instructing solicitor's correspondence mistakenly or not, the description was repeated and it was inaccurate. It created an unnecessary issue for the plaintiff.   

8. In its closing submissions the plaintiff, replying to the defendant said this:  "Vulnerability does not apply in this case, in so far as it pleads negligence because the claim for damages is not a claim for pure economic loss but rather economic loss". This was an explicit abandonment of the language of "pure economic loss" referred to in opening and the previous correspondence. 

9. The defendant says that it has relied on the plaintiff's original statement of its case. It says the conduct of its case at trial was directed towards meeting a case for pure economic loss, and that it has acted to its detriment in not calling evidence relevant to s. 38 of the CLA, that on a property damage claim, would have been available to it under Pt 9 of the CLA. 

10. The defendant referred the court to the decision of the Supreme Court of Victoria in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27, submitting it was salient for the purpose of resolving this issue. In that case, which followed an explosion at the defendant's gas plant at Longford in Victoria, claims were brought by a number of customers of Gascor, to whom Esso supplied its gas. Esso accepted that the interruption to the flow of gas to Gascor was the result of its negligence in designing, installing and maintaining and operating its gas plant. The court divided claims into those where there was physical damage and economic loss, and those in which there was economic loss without such damage. At [613]-[614] Gillard J said in respect of the plaintiff's claim:

    "[613] Taking into account the totality of the evidence, I find that some orders of Johnson Tiles were cancelled during the period following the September gas stoppage because of lack of stock. I also find that the gas stoppage was a cause of the unavailable stock, and the exercise by Mr Humphris does provide some support for the conclusion that Johnson Tiles suffered some financial loss as a consequence. I am satisfied that the lost sales would have produced a gross profit and hence, Johnson Tiles suffered some compensable loss.

    [614] The loss was purely economic."

11. The defendant submits that the characterisation of the claim by Gillard J as one in pure economic loss, ought to be followed here, because the facts are the same.

12. I disagree. This is a case claiming for damages consequential to property damage. That is, for loss in consequence of the damage to the PLC.

13. In Johnson Tiles (above) and in respect of a claim by another business, known as "Barrett Burston" for losses arising from damage to property caused by the interruption to gas flow, Gillard J at [620] identified their claim as one consequent upon physical damage to stock, and not for pure economic loss. That situation is closer to that which applies here. In the language of Henderson (above) this claim is "parasitic" upon the PLC damage. Economic losses which are consequential upon damage to property do not fall within the category of an action for pure economic loss.

14. On the other hand, a claim by the plaintiff's customers for loss occasioned by the plaintiff's failure to supply potted plants, would be a claim for pure economic loss.

15. I reject the defendant's submission.

Is negligence pleaded?

1. If negligence is pleaded, the question of whether the defendant is susceptible to an action in negligence arises as a preliminary issue. Relevant to that question is Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, 211 CLR 540 [8] (Gleeson CJ); Vairy v Wyong Shire Council [2005] HCA 62, 223 CLR 422 [59]‑[60] (Gummow J). The issue can be a complex one, indicative of the need for a carefully articulated plea to the effect that the common law duty is engaged. In the joint judgment of Gummow and Hayne JJ in Graham Barclay Oysters (above) at 596-597:

   "[146] The existence or otherwise of a common law duty of care allegedly owed by statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence."

2. Before that issue is required to be considered, there is a threshold matter raised by the defendant relating to the pleadings.

3. That issue arose in this way. In closing the defendant submitted that the plaintiff had failed to plead a breach of any common law duty. Indeed the defendant says that it was not until the plaintiff's opening address that it was aware that any common law duty was alleged to have been breached.  Senior counsel for the defendant, Mr McTaggart SC, said that "it is the first time in approximately five years of litigation that such a duty has been alleged, notwithstanding that there have been three amendments to the statement of claim …"

4. It was only in closing that senior counsel for the plaintiff, Mr Reid SC,  identified the basis for a common law duty, when he said "this is not a novel duty case and falls within the Donoghue v Stevenson type of duty category regarding the provision of products and services for valuable consideration". The plaintiff submitted that the defendant was aware of the common law action at least at the time the plaintiff opened its case. At no time during the trial has there been an application to amend the pleadings in this respect.

5. The defendant's contention is that an action in negligence is not pleaded. It further submits that the case does not fall within an established category of duty, because the plaintiff did not pay for the installation or maintenance of the pole, and the defendant has never been a retailer of electricity to the plaintiff.  The distribution business for which it assumed responsibility (and exposure to liability) is defined in the transfer notices (1988 and 2014) to mean the activities relating to or associated with the distribution of electricity, including construction, maintenance and operation of that network. Since the disaggregation of the electricity industry, the defendant has not engaged in the retailing of electricity and, as recorded elsewhere, it has not assumed legal responsibility for damage arising from that activity by those entities.

6. It is of course the pleadings which are determinative of the claim, not counsel’s submissions. The pleadings are for the parties to determine, not the court; the court will deal with an application to amend or strike out the pleadings if it is made. It will not otherwise involve itself in their content. The pleadings must state the material facts and any statutory or regulatory provisions relied upon, identify the issues required to be resolved and the relief claimed. Rule 227 of the Supreme Court Rules 2000 requires that pleadings are to give "reasonably explicit notice to any other party of all grounds of action or all defences on which the party pleading intends to rely at the trial". I am aware of the decision of Blow J (as he then was) in Jones v Clyde Welshpool Pty Ltd (2009) 9 Tas R 391; [2000] TASSC 130, on an interlocutory application to strike out an action for failing to plead a duty. Neither party referred me to this case, but different considerations apply in that context. It predates the CLA which in my view requires a pleading to address its elements, including the duty, and the scope of the duty. If the Supreme Court Rules are silent as to such a requirement I do not think it follows that a pleading which ignores the issue survives curial scrutiny, as if the authorities on the matter did not exist.

7. The importance of pleadings as a foundation for procedural fairness was observed in Banque Commerciale SA v Akhill Holdings (1990) 169 CLR 279 at 286 by Mason CJ and Gaudron J who reiterated that the function of pleadings is to state with sufficient clarity the case which must be met. This ensures that a party understands the case put against it and can frame its response.

8. This principle is subject to the qualification that if the parties run the case on a different basis it should be decided on that basis: Banque Commerciale SA (above). That course requires the acquiescence of the defendant in the conduct of the action on such different basis. The defendant has taken this point since it emerged at trial. There is no interpretation of its conduct of the proceedings that could be construed as acquiescence in an action in negligence.

9. Turning to the pleadings, at par 18 of the statement of claim (above) the plaintiff alleges that each of the matters pleaded as a breach of the relevant statutory duty constituted a "negligent breach of duty".  This is followed by "Particulars of negligence".  The plaintiff submits that this is a pleading of an action in negligence. It says that since a breach of statutory duty does not include any element of negligence, the articulation of the claim in terms of negligent breach of duty necessarily pleads an action in negligence, arising from the same factual circumstances.

10. The defendant described this is an invitation to imply a cause of action not otherwise pleaded.  

11. As a matter of language and sentence structure, "negligent" is used in par 18 as an adverb qualifying the word "breach", the breach being a reference to the alleged departures from the statutory duty set out in the preceding paragraphs.

12. The pleadings omit a statement, explicitly pleaded or by reference to some other aspect of the pleadings, of the legal relationship relied upon for the purposes of establishing a duty of care at common law. A duty of care is a particular and defined legal obligation arising out of a relationship between plaintiff and defendant; Roads and Traffic Authority of NSW v Dederer [2007] 234 CLR 330; at [44] per Gummow J.

13. An assessment of breach of duty requires an answer to the anterior question of the nature of the duty of care.  The importance of the relationship and, in turn, its relevance to the content of the duty is evident in cases such as CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47, 239 CLR 390. The existence of a statutory duty can never be a sufficient basis on its own for the creation of a common law duty of care. There will always be some other element, such as obligations flowing from a relationship between the parties; SutherlandShire Council v Heyman (1985) 157 CLR 424, 459–60, 463 (Mason J); Stovin [1996] AC 923, 935 (Lord Nicholls); Crimmins v Stevedoring Industry [1999] HCA 59, 200 CLR 1, 60–61 (Gummow J).

14. Whilst the statutory obligations pleaded can simultaneously inform the content of the defendant's common law obligations (which must be met to satisfy the duty of care), merely adding the label "negligent" does not elevate a reference to them, to the pleading of an action in negligence.

15. In the circumstances, the defendant quite properly asks "is the plaintiff relying upon an established duty or a novel one?"  The pleadings should say. It should not be left to a closing submission as it was by the plaintiff.

16. As Kirby J observed in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at [122]:

    "It is one thing to hold that a person owes a duty of care of some kind to another.  But the critical question is commonly the measure or scope of that duty.  The failure to distinguish these concepts can only lead to confusion".

17. I conclude that no action for negligence at common law is pleaded. I uphold the defendant's submissions.

A private right of action for breach of statutory duty

1. The final preliminary matter is whether a breach of statutory duty sounds in a private right of action against the defendant. 

2. The statutory duties pleaded are set out above, but it is necessary to expand upon a couple of matters to deal with this issue. Chapter 8 of the TEC deals with the operation of the electrical distribution system. Its purpose is stated to be "to regulate in a safe, efficient and reliable manner, the supply of electricity". It mandates compliance with the distribution licence held by each network service provider. It prescribes obligations relating to the operation of the electricity distribution system, including maintenance standards intended to minimise the risk "associated with failure".

3. It contains a general statement of objectives described as "good electricity practice". Good electricity practice is defined as follows:

   "The exercise of that degree of skill, diligence, prudence and foresight that reasonably would be expected from a significant proportion of operators of facilities forming part of the power system from the generation, transmission or supply of electricity under conditions comparable to those applicable to the relevant facility consistent with applicable laws, regulations, licences, codes, reliability, safety and environmental protection.  The determination of comparable conditions is to take into account factors such as the relative size, duty, age and technological status of the relevant facility and the applicable laws, regulations, licences and codes."

4. Paragraph 8.7.11 of the TEC  provided as at May 2005:

   "Each Distribution Network Service Provider must observe good electricity practice as adopted by the National Electricity Supply Industry for the planning, design, construction, maintenance and operation of each Distribution Network Service Providers distribution system to ensure that the relevant standards for safety and reliability of the system are consistent with community, business and customer needs".

5. The plaintiff contends that this obligation required electricity to be supplied over a network configured in accordance with the Australian Standards, and relevant "Safety & Other Manuals".

6. The next part of the duty appears in clause 8.6.4 of the TEC. It required electricity to be supplied within a voltage range.  The requirement is expressed as "maintaining supply" within a range that is "plus 50% or minus 100%" of 230 volts (often cited as 240 volts), for less than 10 seconds.

7. The effect of this obligation is that voltage should not exceed 345 volts (230 volts plus 115 volts).

8. Clause 8.1.3 of the TEC directs attention to other sources of obligation, including "statutes, regulations, proclamations, ordinances, by-laws" binding upon a network service provider.

1. Whether Parliament intended to create a private actionable right is a matter of statutory interpretation: Dairy Farmers Co-operative Ltd v Azar (1990) 170 CLR 293 at 297 and 304. In Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405, Kitto J said:

   "The intention that such a private right shall exist is not ... conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature.  The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation".

2. In O'Connor v SP Bray Limited (1937) 56 CLR 464, Dixon J said at 478 that if a statute prescribed a course of conduct in the interests of the safety of members of the public or a class of them, but did not do more than penalise a breach of its terms, then a question of whether a private right of action was created by that statute was a matter of statutory construction.

3. In Downs v Williams (1971) 126 CLR 61, Windeyer J said at 75, that to "succeed in a claim for damages for breach of a statutory duty causing him harm, a plaintiff must show that the defendant was a person on whom the statute cast the duty: that he, the plaintiff, was a person, or one of a class of persons, for whose benefit the duty was created: that the defendant failed to perform the duty: that this failure gave rise to a civil right of action".

4. In O'Connor Dixon CJ said at [478] that absent a contrary legislative intention, a duty to take measures for the safety of others "seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law … I think it may be said that a provision prescribing a specific precaution for the safety of others is a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on." His Honour observed at [477]-[478] "an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction." This analysis is apposite in the context of duties for the protection of workers, routinely held to confer a private right of action, almost entirely, it would seem, on the basis of policy.

5. Because interpretation of the statute "will rarely yield" such positive implication, the cases approach the question this way: would a duty be incompatible with the terms, scope and purpose of the statute; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 347 [24]-[25] (Brennan J), 391 [175] (Gummow J), 421 [247] Kirby J.

6. Based on these cases, before it can be concluded that Parliament intended that a civil action should be available in respect of statutory duties, the following are necessary:

   i          An intention in the Parliament to create such rights.

   ii         A plaintiff within the class of persons for whom the benefit in the Act is provided.

   iii        Damage within the scope of the statute.

   iv        An obligation.

   v         Breach of the obligation which causes damage.

7. Turning to the first matter, the long title of the Industry Act is in these terms:

   "An Act to promote efficiency and competition in the electricity supply industry, to provide for a safe and efficient system of electricity generation, transmission, distribution and supply, to provide for the safety of electrical installations, equipment and appliances, to enforce proper standards in the performance of electrical work, to protect the interests of consumers of electricity and for related purposes."

8. It refers to the protection of the "interests of consumers of electricity". The interests of that group are broad ranging but include the safe operation of the electricity distribution network. The plaintiff points to this phrase, as indicating a benefit to a particular class of persons: the "consumers of electricity".

9. I consider the characterisation of "consumers of electricity" as a "particular class" misleading.  The reference to the consumers of electricity in the long title to the Act, means anyone who uses electricity, not just the customers of the defendant. To all intents and purposes it is a reference to the general public. If there is any doubt about the class extending beyond customers, the second reading speech resolves it:

   "Mr President, this bill also provides other protections for users of electricity in Tasmania.  As honourable members would be aware, the nature of electricity has a capacity to cause death and hence it is critical that safety standards are appropriate in the electricity industry and enforced." [my emphasis].

10. The defendant's objection to the argument, is that the statutory obligations relied upon exist for the benefit of the general public, and not a particular person or class of persons. So construed it becomes inapposite to speak of the protection of a private right, or in terms of an interest recognised by the general principles of the common law.  It also points to the indeterminate consequences of a conclusion that a private cause of action exists. That concern is addressed in the CLA of course (s.38) a matter which the plaintiff will need to confront if the court is persuaded there is a private cause of an action.

11. In Pyrenees Shire Council (above) at 347, Brennan CJ held that no breach sounding in damages will exist in respect of a statutory duty enacted for the benefit of the public generally: "No duty breach of which sounds in damages can be imposed when the power is intended to be exercised for the benefit of the public generally and not for the protection of the person or property of members of a particular class …"

12. That case emphasises the relevance of conferring protection on a distinct class of persons as a matter validating the conclusion that the enactment does more than create a regime for the imposition of general standards for the protection of all. There is a relevant distinction in this respect between duties designed to protect a particular class, such as employees, and those which operate generally to promulgate a standard for the benefit of everyone, an indeterminate class.

13. The plaintiff submits that Tasmanian courts have "always upheld a private common law right of action for breach of statutory duty where the statute relates to safety".  I think this submission is misleading. Rather, the situation appears to be that if the statutory right amounts to the articulation of a common law right, the observance of which is owed to the claimant, a private right of action for breach of the duty can be found in the statute. In such case there is, in the statutory provision, the protection of a private right and thus an interest recognised by the general principles of the common law: O'Connor (above). Whatever, the matter is to be determined on the basis of the applicable statutory provisions, not an abstract proposition such as that put.

14. In my view the statutory duties pleaded impose standards of general application for the benefit of the public, regulatory in nature, and enforceable by the Regulator. The duties have implications for the operation of the network, including its safe operation, but do not create an individual right to enforcement; they were not enacted for an individual benefit sounding in a personal right to require their observance. Nor are the duties relied upon a statutory formulation of any common law right.

15. It is not determinative of the point, that penalties are able to be imposed for breaches of the duties arising under the TEC. That such enforcement regime is indicative of an intention not to create personal rights, is the approach supported in English authority; Cutler v Wandsworth Stadium Ltd [1949] AC 398, 407. It has its origins in in Doe d Bishop of Rochester v Bridges (1831) 1 B&Ad 847, 859 where Lord Tenterden CJ laid down the general rule that ‘where an Act creates an obligation, and enforces the performance in a specified manner … that performance cannot be enforced in any other manner’. That position has evolved, but in any event it does not reflect the approach in Australia.

16. I conclude that the breaches of statutory duty relied upon confer no private right of action on the plaintiff.

17. If I am wrong as to that, Pt 9 of the CLA is applicable to an action for breach of statutory duty.

18. Section 40 of the CLA says:

    "40   Proceedings against public or other authorities based on breach of statutory duty

    (1)  This section applies to proceedings in respect of a claim to which this Part applies that are based on an alleged breach of a statutory duty by a public or other authority in connection with the exercise of or a failure to exercise a function of the authority.

    (2)  For the purpose of any such proceedings in respect of a claim, an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

    (3) …"

19. Section 40(2) operates to reduce a plaintiff's access to a remedy. In Hamcor Pty Ltd v Queensland [2014] QSC 224 at [201]-[210], Dalton J acknowledged this result, saying the equivalent Queensland provision requires "the kind of unreasonableness which invalidates, or makes improper, the act or omission as an exercise of statutory power". Her Honour observed that it makes it "extraordinarily difficult for a plaintiff to prove breach". (This was not disturbed on appeal).The plaintiff’s problem is more fundamental than the characterisation of the provision, however. It has not addressed this matter, inviting the Court to consider it abandoned by the defendant. In my view it is inapposite to speak of this issue having been abandoned. It is a matter which has been pleaded in a case which engages it. Once engaged it is necessary for the plaintiff to establish conduct outside that prescribed statutory threshold. Pt 9 of the CLA is engaged because the defendant is a public authority, and the action relates to a statutory duty, the breach of which is put in issue. The plaintiff has not disputed its application and ought to have pleaded a reply identifying the matters it relied upon to establish conduct, whether by act or omission, outside the scope of the protection thereby conferred on the defendant. The defendant could have led evidence as to those matters, and the court determined the matter. The matter has been treated as if it had no operation, when its application is fundamental to an action against a public authority alleging harm arising from breach of statutory duty.

20. In those circumstances the plaintiff's failure to deal with the protection conferred by s 40 of the CLA means it has not been displaced. That is dispositive of a claim based upon harm alleged to have been caused by a breach of statutory duty by a public authority.

Would an action for breach of statutory duty be one of strict liability?

1. If a private right of action existed for breach of duty, the plaintiff submitted that it is one of strict liability. It refers to Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at [41]: "… depending upon the magnitude of the danger, the standard of 'reasonable care' may involve 'a degree of diligence so stringent as to amount practically to a guarantee of safety' ((152) Donoghue v Stevenson [1932] AC at 612 per Lord Macmillan; Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR at 523 per Starke J; and, generally, Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR at 30, 42).

2. Strict liability tends to be imposed in situations which are inherently dangerous: Burnie Port Authority (above). In some cases where an injured worker establishes a breach of statutory duty resulting in harm, liability can be established against the employer without proof of negligence. As a result, in such cases the enquiry undertaken by the court is different from that in cases where negligence must be proved. The practical consequence of that is that the standard of causation is different from that applicable in negligence at common law: it may be established by demonstrating a breach of duty simpliciter, coupled with harm of the sort expected to arise from such breach, and in the absence of some explanation to the contrary: Betts v Whttingslow (1945) 71 CLR 637.

3. The result is that in such a case, the right conferred is different from, and enhanced, over that applicable in cases for negligence governed by the CLA, to which ss 11 and 13 apply, because the limits on liability and damages imposed by the CLA are avoided: see Booksan Pty Ltd  v Wehbe, Elmir, [2006] NSWCA 3 at [167] per Ipp J. Such a result is undesirable and provides a basis for avoiding such conclusion. In my view it is counter to the principles enshrined in the CLA, and unless it falls outside the scope of that Act, that Act should apply. An actionable duty arising under statute in the way contended by the plaintiff, is able to satisfy the definition of a duty in the CLA, meaning Pt 9 of the CLA is engaged. The plaintiff's action for breach of statutory duty, if it existed, should be determined therefore in accordance with the applicable provisions of the CLA. I reject the plaintiff’s submissions as to this.

4. In circumstances where no action in negligence is pleaded and the statutory duty does not give rise to a private cause of action, the plaintiff’s action must fail.

5. The Court will, notwithstanding those conditions, proceed to consider the plaintiff's case as to causation. The court's conclusions on causation would apply to an action in negligence or for breach of statutory duty because the same facts are relied upon for each.

6. I turn to the evidence. The parties agreed a number of matters at trial which I set out. I find accordingly:

   1The Hydro Electric Commission (HEC) generated, transmitted, & distributed electricity in Tasmania until 1 July 1998 where pursuant to a notice under the Electricity Companies Act 1997 all assets, rights and liabilities in respect of the distribution business of the HEC were transferred to Aurora Energy Pty Ltd.

   2On 1 July 2014, pursuant to a Notice made under the Electricity Reform Act 2012 all assets rights and liabilities in respect of Aurora Energy Pty Ltd's distribution business passed to Tasmanian Networks Pty Ltd.

   3By 'distribution business' the Notices refer to the 'poles and wires' transfer high voltage and low voltage electricity from sub-stations to residential homes and small businesses.

   4In or around 1987 the HEC dressed and installed pole 343836 ('the Pole').

   5A transformer T690640 ("the Transformer') was installed on the Pole as part of the original installation, since installation the Transformer has not been replaced.

   6At the time of the erection of the Pole the HEC had published technical drawings designed by its internal engineers, B14731 and B12335, in relation to general pole installation and dressing.

   7In 1998 the freehold of the Property was sold by North Forest Resources to Boral.

   8In 1998 the plaintiff entered into a lease of the Property.

   9In 2001 the freehold of the Property was sold by Boral to Gunns Ltd.

   10In May 2002 the plaintiff purchased the Property.

   11In approximately August 2009, Mr Eric Richardson was engaged by the Plaintiff to install a Phase Change Convertor three phase converter (the PC), three phase switch and three phase cabling in the potting shed at the Property.  The PC produced three different phase supplies of electricity being supplies of 160V, 220/240V and 360V when measured to earth.

   12On 10 December 2010 the defendant's recloser C600306 on Glengarry Road, which supplied 22kV electricity to the Pole, tripped four  times and locked out at 23:38 hours.

   13The cause of the recloser operating was vegetation across the line at Flowery Gully approximately 6km from the recloser.

   14The operation of the recloser caused a loss of electricity to the Property.  Electricity was restored at 2:58am on 11 December 2010.

   15On 10 December 2010 the defendant's predecessor in title, Aurora Energy Pty Ltd was a member of the Energy Networks Association ('ENA').

   16The ENA published the ENA Code 007:2006 ('the ENA Code').

   17On 10 December 2010 the arc gap electrodes attached to the Transformer tank were painted.

   18On 10 December 2010 the right hand arc gap rods on the Transformer were spaced at approximately 60mm in series.

   19On 16 December 2010, the plaintiff (through its Directors, or one of them), turned the Potting Machine on. The Potting Machine did not operate when turned on.

   20Over the period 9 to 16 December 2010, no lightning was recorded in the area of the Property by GPS or global weather tracking systems.

   21Over the period 16 December 2010 to 23 February 2011, the Potting Machine was not operational.

   22Over the period 9 to 16 December 2010:·

   athe HV "drop out" fuses on the Pole did not blow (operate or "drop down");

   bthe 240V Low Voltage cables at the Property did not fail;

   cthe Phase Converter did not fail;

   dthere was no visible damage to the defendant's infrastructure at the Pole; and

   ethe defendant did not attend the Pole, as the defendant's power systems were supplying electricity to the Property.

   23The Potting Machine was operational again from 24 February 2011.

   24On or around 7 March 2011, the plaintiff lodged a claim with the defendant (then Aurora) in the sum of $78,669.74 (excluding GST) for damage to the Potting Machine, occurring between 9 and 16 December 2010 ('the Property Damage Claim').

   25On 22 March 2011, the defendant (then Aurora) refused to accept the Property Damage Claim.

   26On 16 August 2011, a business interruption (insurance) claim was lodged by Kernan & Co on behalf of the plaintiff in the sum of $135,952, with MYI Freemans (''the Business interruption Claim').

   27On 30 April 2012, Ms Karen Brock and Mr Timothy Phillips signed a Form of Release accepting the sum of $150,029.18 from Vero Commercial & Liability in full satisfaction of the Business Interruption Claim.

   28During 2012 the defendant undertook the following work to the Pole:

   aReplaced the high voltage and low voltage earthing systems at the base of the Pole (20 January 2012).

   bRaised the height of the Transformer on the Pole (27 June 2012).

7. Karen Brock, a director of the plaintiff, gave evidence.  She moved to Markfield in 1998 with her partner and fellow director Tim Phillips.

8. In the period beginning February 1998, Ms Brock said there were problems with the electricity which resulted in appliance failures.  She said the power would "just keep going off and then back on again". Sometimes this would happen twice a day, sometimes five times in a day, sometimes once a week. She described it as "spasmodic".

1. She said that household equipment such as bread makers and microwaves routinely failed, and she was replacing three or four bread makers and two microwaves a year.  A TV which was received as a wedding present in 2008, suffered a damaged circuit board and was replaced under warranty. She described many other problems including with a UV water sterilizer with a light globe which regularly malfunctioned, and in the small greenhouses there were electrical problems in the period 2003 to 2006.  She repaired a number of items of electrical equipment herself, including computers. She told the Court that she kept old computers for spare parts, and would "rob the old computers" for ''power supplies, and circuit boards."

2. In 2001 she said that a glasshouse caught fire and a lot of propagation material within it was damaged. Upon returning from a school function, flames were observed in the nursery. She believed that a heat mat had caught fire and had spread to the whole greenhouse.

3. Ms Brock claimed electrical problems occurred at Markfield until 2012.

4. Asked whether there was any coincidence between the discovery of damage to equipment, and the outages that she described, she said she had not made notes at the time and was unable to say. I nevertheless consider that the Court is being invited to draw a connection between these events, or at least some of them, and the interruptions to the power supply, she describes.

5. The evidence of electrical problems is confirmed by her partner, Tim Phillips. He kept a calendar of power outages, and other interruptions to the electricity supply. (It was called the "cow calendar" because the information is recorded on a calendar with images of cows on it.) It was an attempt to keep track of electrical interruptions, and problems experienced. He described a number of these, including pumps malfunctioning, and an electric fence requiring repair.

6. A previous occupier of the property, Sandra Hetherington, gave evidence. She had worked at Markfield for a former owner and gave evidence of similar types of electrical problems.

7. For many years the plaintiff undertook potting using skilled labour.  In 2009 it decided that it would buy equipment to automate the process.  It purchased a "Demtech" brand potting machine (the potting machine). The potting machine is able to automatically transfer small plants into pots.  The potting machine worked with a Mitsubishi FX2N programmable logic controller (the PLC referred to earlier). The PLC is the "brains" of the potting machine. It automates the operation controlling the processes necessary to transfer the small plants into pots.

8. The potting machine relies on electricity supplied over infrastructure owned and maintained by the defendant.

9. As recorded in the agreed facts, Mr Richardson is the licenced electrical contractor who installed the PC in the shed, in August 2009.  He had not installed one of these devices before, though he did not identify any particular problems in doing so. The function of the PC was to convert the single-phase electricity supply to a three-phase supply, a cheaper alternative than installing three-phase power. 

10. His evidence was that other electrical installations at the potting shed were installed in accordance with the appropriate wiring rules, but did not elaborate upon nor describe those rules.

11. He worked for the plaintiff later in 2009 making alterations to wiring connections. He raised an invoice for that work but the details of the work he undertook were not disclosed so no one is able to say what changes he made to the wiring, or make any judgment about the significance of that work to the subsequent event. The defendant contends that his evidence lacks sufficient detail with respect to those matters to be forensically meaningful. I agree. The Court is unable to derive any assistance from assertions to the effect that electrical installations, including those relevant to the potting machine, were installed in accordance with wiring rules (or indeed any standard) because the detail is not identified.

12. When the potting machine was installed Mr Phillips' evidence is that a representative of the potting machine manufacturer attended at Markfield. He was a Mr Walker. He identified an issue with power to the area adjacent to the potting machine, reporting abnormally high voltage in that location. Two technicians from Aurora attended to investigate.

13. Mr Phillips said the Aurora technicians inserted a device described as a "multimeter" into the power point, returning a voltage described as "grossly excessive". They went to the pole and "tapped down" the transformer, a process designed to reduce its voltage. Thereafter these technicians checked the power in the location of the potting machine again, were satisfied that it was correct and left.

14. Mr Walker commenced the installation procedure, but once again he detected an overvoltage. The same technicians attended and checked the voltage. They determined that it was correct, whereupon they left.

15. Between August 2009 and December 2010 the evidence is the potting machine functioned as it was intended to, until in mid-December it was required again. It did not turn on. Mr Phillips' said he went through the process of checking that there had not been any electrical problems caused by "electrical overloads". He could see no obvious problems. He contacted the potting machine supplier.

16. The agent for the potting machine supplier was Mr Paul Whiddon. He was instructed by his employer, Tyco Tamar to attend at the Brocklands Nursery to investigate the failure of the potting machine.  His evidence is the only evidence about the condition of the PLC after the potting machine ceased to operate in December 2010. 

17. When he arrived the machine was plugged in and switched off.  The PLC was a basic unit known as a "shoe box", its code written in ladder format, and upon his inspection "in situ" it appeared to be correctly wired and installed. He told the Court that the electrical connections to the PLC measured between 230 and 240 volts, which is the correct voltage. 

18. His observations of the PLC are described as being consistent with shorting of some of the tracks around the communication tracks on the printed circuit board. The relevance of such observation to the issue of causation is an untested claim. The defendant's evidence, through its expert Anthony Gillespie is the photo, the only evidence of the PLC which exists, does not assist in arriving at an opinion about what caused its failure. In the context of the whole of the evidence as to causation, the court does not rely on the untested evidence that the condition of the PLC is consistent with the claimed cause of damage.

19. The plaintiff engaged with the defendant to explore the cause of the damage to the PLC. It had engaged its own expert, Rayner Page, to investigate matters on its behalf. Mr Page gave evidence at trial.

20. Mr Phillips gave evidence that at a meeting in December 2011 with representatives of the defendant, including a Mr Burr, there was a discussion about the transformer, including comments with respect to the proximity of the low-voltage wiring to the transformer. It was also suggested in that conversation that the high-voltage line coming into the transformer was too close to the outgoing line to the nursery. Mr Burr recalled this meeting. He said he looked at the transformer and the "layout" of the pole. He observed what he considered to be evidence of excavations around the pole. He said he told the plaintiff's directors that it would be impossible to guarantee that the earthing system had not been impacted by any excavation because it is buried in the ground.

21. He agreed to instigate a scope of works that would involve testing the earthing system.  He also mentioned logging equipment being installed. The purpose of the loggers was to check the reliability of the supply to Markfield. He said he would look at the line running from Trevallyn power station to the property, to see if there was any potential issues with the feeder such as might be caused by birds straddling the wires or a tree touching the wire. The logging equipment was installed as promised though an issue as to the correctness of the installation is raised.

22. In the course of these exchanges Mr Burr refers to an earth resistivity reading of 97 ohms at the pole. There is an issue, unresolved, about when the reading was taken, by whom, about its accuracy and its relevance. It is a matter relied upon by the plaintiff for its claim that the defendant's earthing infrastructure was installed incorrectly and was unable to function as intended, allowing high voltage electricity to enter the low voltage system. The Court will return to this issue.

23. Engagement between the plaintiff and defendant was undertaken in good faith, and in order to investigate the damage to the PLC. That necessarily involved consideration about whether the power distribution network was implicated in its failure. I do not find this engagement by the defendant with the plaintiff evidences the defendant's acceptance (let alone the assumption) of any responsibility for the electrical problems the plaintiff describes, including the damage to the PLC. It was no more than the engagement which might reasonably be expected of a distributor of electricity carrying out its functions properly.

24. The plaintiff's hypotheses as to causation emerge from this process of engagement with the defendant, assisted by their own expert.

25. The first hypothesis asserts that because of the distance between the HV bushing and LV conductor, a situation created by the placement of the transformer and the location of the LV conductor, a surge of electricity "flashed over" between the two, forcing the surge onto the LV system.  The purpose of the separation between the HV and LV bushing is to prevent this from happening. It does this by preventing HV electricity arcing through the air from the HV bushing to the low voltage conductor. 

26. The plaintiff relies upon a standard which post-dates the installation of the pole, submitting that the arrangement was not compliant with AS2067:2008. (That standard specified a separation of 280mm plus 15%, or 322mm.)  I have already determined it has no application. (It also says the defendant's own standard from 1989, required a distance of 310mm between the two. The pole was installed before that change). A series of drop fuses between the 22kV transmission line and the bushings on the transformer, are designed to blow when current exceeds a certain level, and will provide protection in this scenario. The plaintiff submits they should have done so, but failed to because the fast-moving surge was able to bypass them.

27. It is an agreed fact that the fuses did not blow, but the significance of that failure is a moot point. The plaintiff's experts' theory is that it happened because the amperage did not reach the heat necessary to trigger the fuses to blow.

28. When the fuses did not blow, it is contended that other measures designed to provide protection from a high voltage surge should have protected the low voltage system, but did not. The first of these is the transformer. It is claimed that this was bypassed because electricity was able to jump (or arc) and avoid it.

29. The earthing system was also part of the protection mechanism, but the plaintiff says that because the earth resistance was set too high, the surge chose the low voltage conductor as its pathway rather than dissipating to earth as it should have. 

30. That occurred on this analysis because electricity chooses the path of least resistance.  It submits the resistance was set at 97 ohms, relying on the reference in the email from Mr Burr, referred to earlier.  The resistance should have been no higher than 30 ohms, according to the HEC drawing B14731. At 97 ohms it did not offer the electricity the path of least resistance, so that the surge "chose" the low voltage conductor rather than dissipating to earth.

31. The third mechanism intended to provide protection from a surge is the arc gap rods.  To work as intended, the plaintiff says that these should be correctly aligned and they should not be painted.  The plaintiff's case is that the arc gaps were greater than 25mm apart compromising their effectiveness.  It says that they were 60mm apart in series (measured in total).  HEC diagram B12335 requires a separation of 25mm for each of the two arc gap rods.  As well as specifying that distance, the HEC diagram B12335, advises strict compliance with its standards.

32. The other aspect allegedly compromising the effectiveness of the arc rods was their being painted. The proposition is that paint will insulate the normal conduction path.  The evidence is that painting the arc gap rods may have a similar effect to increasing the spark gap in terms of the impact upon their effectiveness. In simple terms, paint can blunt the operation of the arc rod.

33. An alternative hypothesis advanced by the plaintiff goes to the separation between the high voltage earth and the low voltage earth wires. These wires are underground, running down the pole and into the earth. Insulated for a length once they go underground, they are laid opposite to one another at 180 degrees, and move away. The two metres between the uninsulated wires prevents the electricity travelling to the other wire. The density of the soil will affect the soil's resistance qualities too. The denser it is packed, the more resistance it offers.  According to HEC drawing B14731, these should be two metres apart at the closest uninsulated point.  Insufficient separation makes it possible for electricity from a power surge to travel through the ground from the high voltage earth to low voltage earth and into the low voltage power supply.  It is the plaintiff's case that the HV and LV earths were not two metres apart on the relevant date. The defendant disputes this and further says the supposed arrangement of the earth wires cannot be established.

34. Aside from matters relating to the configuration of the pole, the plaintiff contends that the defendant's process of inspection was inadequate.  Inspections form part of the maintenance obligation referred to in the TEC. Inspections of the pole are recorded on a plate attached to it.  It identifies three inspections: 9 February 2004; 7 December 2006; 2 June 2010.

35. I am satisfied the plate records inspections were in fact undertaken. The proposition is, as I understand it, that the inspections were an opportunity to carry out work on the pole to make it comply with applicable standards and specifications, or carry out fixes to the installation which the plaintiff says were required. I have dealt with the scope of this obligation already.

36. As well, as the Court has said, the scope of such obligation falls to be considered in the context of the defendant's statutory functions, resources and responsibilities as recognised in Pt 9 of the CLA.  Part 9 of the CLA recognises the principle of resource allocation, and financial resources as material considerations in determining whether such duty exists, and if it does, whether it has been breached. The defendant pleaded this point when it referred to s 38(a)-(d) of the CLA. Ultimately it led no evidence about the matters. In light of the Court's conclusion on causation, that failure becomes immaterial. 

37. The Court will consider the plaintiff's case, beginning with the evidence of electrical failure at Markfield. The episodes of electrical interruption and appliance failure are relied upon by the plaintiff to expose a history of problems said to be indicative of the defendant's failure to meet its statutory obligations. The Court has not set out every episode recounted in evidence, but it accepts the plaintiff's evidence that there were numerous such instances in the period ending 2012. It accepts that Ms Brock undertook a number of repairs to computers in consequence of their malfunctioning, and that numerous household appliances required repair or replacement.

38. The plaintiff submits the incidence of such failures was "unusually high" compared with common knowledge. "Common knowledge" is an unexplained concept here, but I interpret it as meaning "common experience", being the experience of users of electricity generally. Whether that is so it is unnecessary to decide. The plaintiff invites a finding that a causal link is established between these episodes of appliance failure and network outages.

39. It cannot be doubted that in some instances there is such nexus. Indeed, in a letter in 2003, the defendant attributes one such interruption, to the operation of a recloser at Clarence Point. And it acknowledges that an outage at Markfield on 6 October 2009 was caused by vegetation. There are other episodes it acknowledges, for example an outage on 5 February 2010 recorded in the "cow calendar" said  by the plaintiff's directors to coincide with a computer and an electric fence "energizer" suffering damage. The plaintiff also refers to damage to a cable PI and some scales and transformer on 10 December 2010, the day the PLC is alleged to have suffered harm.  Another episode in 2015 referred to by Mr Gillespie for which there is no record, is also referred to.

40. The power interruptions in 2003 and 2009 explained by the defendant from its own records, disclose an interruption to the power supply when the protective mechanisms within the system operated correctly.  There is no evidentiary basis for a finding that these episodes are relevant to the failure of the PLC, and such a conclusion is speculative. Similarly, the submission that the episode in February 2010 is probative of the claim made in the action, is not established. The Court reaches no conclusion about the episode in 2015 because it is not disclosed in any sufficient detail to sustain a finding. It also postdates the event the subject of the claim. Nor does the Court feel able to draw any inference from these episodes, viewed together as a series of outages coinciding with interruptions at Markfield.

41. In respect of the appliance failures generally, no evidence capable of sustaining a meaningful conclusion probative of matters in issue was led by the plaintiff. For example, there was no evidence of any specialist diagnosis of the damage to the appliances, nor of the repairs required; there are no invoices disclosing the work done, nor any reports from the repairers. There is nothing to show whether a manufacturer's fault was the cause of failure. The LG TV for example was replaced under warranty. That is consistent with the manufacturer accepting fault, a basis for replacement of the TV the plaintiff directors have accepted. 

42. The plaintiff's submission with respect to the probative value of these matters is based upon inadmissible opinion. Opinion evidence may only be received in accordance with s 76 of the Evidence Act 2001, and as explained in Dasreef v Hawchar [2011] HCA 21, neither director, nor Ms Hetherington, is qualified to express the opinions proffered. In-so-far as an expert witness says, the events are not inconsistent with such hypothesis, or that the episodes offer a circumstance from which it is reasonable to draw an inference about the quality of the power supply and the particular damage sustained, the Court declines to draw that inference because the factual basis for such claim is not established. No proper inference can be drawn from anecdotal evidence of electrical failure, or other electrical damage, to sustain the plaintiff's case on this point. I afford this evidence no weight.

Causation

1. The case is a circumstantial one. In a circumstantial case causation is approached through a process of inferential reasoning: Langmaid v Dobsons [2014] 24 Tas R 18. It must be shown that the respondent's breach of duty, was a necessary element of the occurrence of the harm sustained by the plaintiff: s 13 of the CLA; Langmaid per Porter J at [131].

2. Each of the factual matters upon which the plaintiff relies to prove causation must be proved by it on the balance of probabilities: s 14, CLA.

1. It is admitted by the defendant that paint had been applied to an arc gap rod.  However the thickness of the coating, and the type of paint used is not in evidence. That evidence is crucial to the plaintiff's thesis that the paint inhibited the operation of the transformer. The actual effect, if any, cannot be determined. The Court cannot be satisfied that in this respect there is a mechanism through which causation might be established. (The evidence is that this is how the transformers were supplied. I am inclined to think that a specialist manufacturer would not supply a transformer in a condition which inhibits that function, but I need not decide.)

2. The plaintiff called Rayner Page and Gregory Piper, electrical engineers, to give evidence.  It called Nicholas Johnson to give modelling evidence intended to demonstrate the way in which the failure to the PLC was caused by a surge current entering the property. The Court accepts their expertise in their respective disciplines.

3. The defendant called Anthony Gillespie, as its expert electrical engineer.  It called Dr Franco D'Allesandro as its modelling expert. He is an expert in lightning and surge protection. The Court accepts their expertise in their respective disciplines. 

4. The Court has had the opportunity to observe all these witnesses. The Court does not doubt the honesty, or independence of any of the experts. The court's observation of the experts is not material to its conclusion, nor is credit a matter relevant to the conclusion. The evidence was taken concurrently adopting an agenda prepared by the parties after an expert conclave, and managed by the court during the hearing. The process enabled the experts to put their opinions and to respond to the other experts, and to raise issues and questions about the opinions proffered. Further questioning by counsel was permitted but proved unnecessary to any significant extent.

5. As between experts the Court prefers the evidence of Anthony Gillespie over Messrs Page or Piper, because of his particular qualifications and experience in electricity transmission, and the design and maintenance of PLCs in the electricity transmission business. His evidence is confirmed by, if that is necessary, and consistent with the modelling evidence before the Court.

6. It prefers the evidence of Dr D'Allesandro to that of Nicholas Johnson, based upon the former's qualifications, experience and publication of learned articles.  

7. The defendant also adduced evidence from Dr Muthumuni who undertook modelling of possible surge current and voltages travelling in accordance with each of the hypotheses advanced by the plaintiff. That evidence was received by consent. The court accepts it.

8. What follows is necessarily a summary of the evidence. It is not possible to set out the evidence in a way which reproduces all of its content. In the final analysis the court is satisfied on the basis of the defendant's evidence, and supported by the modelling evidence of Dr Muthumuni that the plaintiff has not established a surge event of the magnitude alleged, or that the defendant's acts or omissions were a necessary element of the harm to the PLC.

9. The narrative begins with Mr Page. He gave evidence that he was engaged by the plaintiff to investigate their electrical system, to identify possible causes of damage to equipment at the plaintiff's site.  He gave evidence that in December 2011 he attended a meeting with Aurora and observed what he described as poor workmanship on the transformer installation and the low voltage conductor separation around the transformer pole. 

10. His evidence was that "when I looked up at the pole, it was clear that there was inadequate air gap separation from the low voltage conductor, and there was no insulation on that conductor at the time.  There was also a missing wildlife cover on the high voltage bushing closest to the high voltage conductor.  After this meeting, Aurora proceeded to insulate the low voltage conductor and they then subsequently tested and replaced both the high voltage earth system and the low voltage earth system." 

11. Later that same year he said the transformer was raised to increase the air gap separation of the low voltage conductor and the high voltage terminals of the transformer.  He told the Court that testing in 2013 of the modified high voltage and low voltage earth systems "showed the transferral of voltage from the high voltage earthing system to the low voltage earthing system under high voltage fault condition."  (He said these results were initially discounted because at the time it was understood that the PLC specifications were 240 volt AC when they were 24 volt DC.  Upon that misunderstanding being corrected, the results were reconsidered as a possible cause of the mechanism which caused the failure of the PLC.)

12. A critical issue in the question of causation is the magnitude of the surge.  The evidence of Mr Page, and also Mr Piper, is that a recloser can produce a surge current of 4.6 pu.  It is their opinion this is sufficient for a flashover of both the spark gaps or from the bushing to the LV conductor.  Mr Piper clarified his evidence in this regard by saying that 4.6 pu is the maximum surge measured in a study undertaken by Gupta and others under real world conditions, and not in a laboratory.

13. Gregory Piper is lead electrical engineer with FortEng Consulting based in Queensland.  For the purposes of his evidence he received three reports prepared by Mr Page, the Engrid report of 30 September 2017 and the FortEng report of 21 January 2016.  He had a report from the defendant's witness, Mr Gillespie, dated October 2015.  He viewed a video prepared by the defendant in 2015.  He received several diagrams from the HEC relevant to the pole, and some recordings taken by the defendant's employees on 12 December 2017.  He was provided with a photograph which he was told was taken on 12 October 2017 of one of three conductor joints on the low voltage lines supplied from the pole in question and supplying low voltage power to the property.  He was told, and accepted that the same cable joints exist on the other two conductors supplying the property.

14. The substance of Mr Piper's opinion is derived from the FortEng report of 21 January 2016.  That report concludes that any surge exceeding 3 kA 48-20th of a microsecond in the pre-2012/2013 configuration of the pole would result in a surge voltage reaching the potting shed which exceeded the dielectric withstand voltage of the PLC unit. Mr Piper's opinion is that the most likely cause of damage to the PLC was a surge of high voltage electricity which bypassed the surge protection on the transformer and arced to the active "a" conductor where it travelled to the PLC unit by one or more unknown paths "that cannot be empirically determined".  He opines that the surge was able to bypass the surge protection on the transformer because the spark gaps on the transformer were not properly aligned; the spark gap electrodes were painted; the active "a" conductor was too close to the HV bushing; and the resistance of the HV earthing system was too high.

15. Mr Piper told the Court that a surge greater than 3 kA 48-20th of a microsecond is a standard surge modelled by electrical engineers; not uncommon in the electrical industry, and in his experience most electrical surges exceed this model.  It is his opinion that such a surge could easily have occurred if vegetation caused a connection between the conductors upstream of the transformer, especially when the lines recloser operated multiple times before locking out.  He acknowledged that under ordinary operating conditions it is impossible to know precisely the voltage and/or amperage of the surge when it reached a particular point in the line such as the transformer at Brocklands Nursery.

16. Mr Piper's opinion is that the configuration of the earthing system does not affect the accuracy of his hypothesis that electricity arced from the HV transformer bushing to the LV active "a" conductor where the spark gaps were misaligned and the spark gap electrodes were painted. Each could bypass the three phase switch upon reaching the PC (near the potting machine). It could do this, in his opinion, by jumping across the electrical contacts, and this would be so whether it was in the on or off position. (On this basis Mr Piper rejects Mr Gillespie's opinion that the fact that the three phase switch supplying power to the potting machine was in the off position, would have stopped a fast front high voltage surge).

17. He considers his opinions supported by the fact that since 2012 key issues were fixed at the pole, which ensured the provision of additional insulation on the act of "a" conductor; raised the height of the transformer to create additional separation and installed a new earthing system for the pole.  Since then he observed that the plaintiff has not suffered any further damage to its electrical equipment.  He considers this result "tells me" that damage was caused to the plaintiff's PLC in the manner he proposes.  That mechanism is consistent with that identified by Mr Page.

18. Mr Gillespie commented on each of the hypotheses advanced by the plaintiff, some of which are not relevant in view of the Court's findings of fact.

19. Relevant to the magnitude of a surge at the potting machine, albeit in terms of a mechanism the Court has discounted, Mr Gillespie told the Court that if there was a switching surge that entered the HV earthing system at the pole, and it was coupled and transferred to the LV earthing system through the soil, then a switching surge would occur on the LV neutral.  Referring to Dr D'Allesandro's evidence on this point (and to the same effect), Mr Gillespie opined that the magnitude of a transfer between the HV earthing and LV earthing would be small even on a worse-case scenario, where the closest separation between the two was only 300mm, and regardless of voltage.  It is his opinion that there is significant attenuation of the voltages on the LV neutral between the house and the potting shed, which would mean that the largest magnitude of the switching surge would occur at the house (not the potting shed) and it would be attenuated as it travelled through the nursery and to the PLC.

20. On this basis he opines that the 230 volt weighted electrical equipment would be expected to fail at less than half the value for the PLC when subject to an over voltage switching surge.  As such, it was his opinion that the computer and domestic electrical equipment in the house would likely fail before the PLC in the potting shed. 

21. Given that equipment (in the house) did not fail, then the PLC did not fail due to a switching surge, in his opinion.

22. Mr Gillespie told the Court that if there had been a flashover of the spark gaps shunting the surge to the HV earth, then "power follow current" would be expected, and that such current would create an earth fault which would blow the fuse.  Since there was no evidence to suggest that the fuse had blown since December 2010, there was no flashover of the spark gaps on that day, in his opinion.

23. Further, in his opinion, power follow current would create visible marks on the spark gap, and there were none.  Mr Gillespie acknowledged a visible mark on one of the rods of the spark gap, but, because there was not a fuse blown on 10 December 2010, it was his opinion that the spark gap flashover which caused that mark occurred prior to 10 December 2010.

24. It is accepted by the plaintiff that the fuses on the pole have not blown.  (They are drop fuses which means that if they blow they will drop down enabling that fact to be evident.) Mr Piper expresses no surprise that the fuses had not blown, because, he says, they are designed to blow in fault circumstances when energy travelling through them causes them to heat up and disintegrate.  It is his opinion that during the fast moving surge event of the kind he considers caused damage at Brocklands, the surge would pass through the fuses without blowing them because they would not get hot enough;. "Fuses are fault protection, not surge protection."

25. Based upon Mr Johnson's experience in HV testing, the plaintiff submits that power follow current would extinguish when the voltage reaches a zero, and that this can occur in 10 milliseconds at normal power frequency of 50 Hz, to mean that at 10 1000ths of a second, the power follow current extinguishes at 0.3 seconds before the fuse would blow.  The plaintiff submits that Mr Johnson's opinion is supported by the references referred to by Messrs Page and Piper, and the result is that even if power follow current does occur as Mr Gillespie asserts, it extinguishes (or is quenched, as it was put) before a fuse could blow.

26. I prefer the evidence of Mr Gillespie on this issue.

27. In relation to the mechanism which proposes that a flashover from the HV bushing to LV conductor "a" enters to secondary winding of the transformer and comes out of the LV neutral and into the house and nursery, Mr Gillespie's opinion is that the maximum switching surge of 35 kV to 55 kV is insufficient to flashover the 110mm air gap between the HV bushing and LV conductor "a", as 98 kV is required to flashover that air gap.  As such if there had been a flashover between the HV bushing and the LV conductor "a" then power follow current would be expected.  This takes the matter back to the fuses, which Mr Gillespie asserts should have blown. Since they did not, in his opinion there was no flashover between HV bushing and LV conductor "a". 

28. The same point is made by Mr Gillespie in respect of the mechanism which proposes a flashover from the HV bushing to the LV conductor "a" and into the house and nursery.  In respect of this mechanism, the power follow current would create visible marks on the spark gap. Because the fuse has not blown since 10 December 2010, Mr Gillespie's conclusion is that the gap flashover occurred before that date.

29. He adds that if there was a switching surge that entered the house on the LV conductor "a" the combined effect of the line impedance of the LV wiring and the load impedances would cause attenuation of a switching surge.  This would mean that the largest magnitude of the switching surge would occur at the house and it would then be attenuated as it travelled to the PLC.  In those circumstances, electrical equipment would be expected to fail along the way.  This would occur before the PLC.  Since it did not, it is his opinion that the PLC did not fail due to a switching surge.

30. The plaintiff asserts that Mr Gillespie speculates "without providing reasons".  The Court is urged to approach Mr Gillespie's opinion with a level of circumspection given "the demonstrable level of rigidity in his opinions", notwithstanding new evidence becoming available over time. 

31. Mr Gillespie properly acknowledged the need to alter aspects of his opinion based upon additional information, as did Mr Page.  It is perfectly reasonable for the plaintiff to criticise Mr Gillespie's opinion, but the proposition that his opinion was inflexible is rejected. 

32. To the extent that reliance is placed upon the proposition that Mr Gillespie is the only expert witness who expressed a view to the effect that there was no causative link between the event relied upon by the plaintiff and the damage to the PLC, nothing turns on it. It is not a numerical contest.

33. I accept the defendant's submission in this respect. Furthermore, Dr Muthumuni's unchallenged modelling supports the conclusions expressed by Mr Gillespie. 

34. Turning to Dr D'Alessandro's evidence, his opinion is that it was likely that when the recloser operated there would have been minimum load on the power system. He opines that the voltages reaching the potting shed were well below 1,000 volts.

35. But in any event he said that a surge of up to 1,392V was unlikely to have caused any damage to the PLC, notwithstanding its steady state 500V dialectic withstand voltage. That is because electronic equipment actually has a far higher withstand voltage for brief transient over-voltages.  

36. The substance of his evidence with respect to causation is that, in respect of any of the mechanisms posited by the plaintiff, the voltage was not sufficient to damage the PLC when allowances are made for the duration of the switching impulse.  "The PLC has a rating of 500 volts AC for one whole minute, but an impulsive surge, going down the line, lasts a much shorter time than that and therefore, you get a much higher voltage withstanding on the equipment."

37. Dr D'Alessandro reviewed his conclusion after considering the analysis by Dr Muthumuni. It did not alter the conclusions contained in the original modelling report which were to the effect that the PLC is unlikely to have been damaged by a switching surge on incoming conductors.  Dr D'Alessandro set out his calculations to support those conclusions. 

38. Using Dr Muthumuni's results, Dr D'Alessandro modelled the surge propagation from the transformer into the plaintiff's Low Voltage installation through to the PLC.  He concluded that there was insufficient voltage on any of the mechanisms to cause damage to the PLC. 

39. The modelling evidence of Dr Muthumuni was tendered with the consent of the plaintiff, and without the need for Dr Muthumuni to be called. Dr Muthumuni undertook PSAD based switching studies to estimate the maximum switching surge voltage and current at the 22 kV pole mounted transformer as a result of a recloser operation about 14 kilometres away.  Dr Muthumuni is the lead developer of the PSAD program, which is used by utilities in Australia and internationally. The Court accepts his expertise in his field.  The input data relied upon by Dr Muthumuni was admitted by consent.  His expertise is not challenged, nor is his use of the PSAD program to carry out his modelling. Whether or not the plaintiff perceived a forensic advantage in not having Dr Muthumuni appear to have his evidence tested, is irrelevant to the Court's conclusion that his evidence is directly relevant to the Court's ultimate conclusion.  Its relevance is not in issue, and the analysis, assumptions and conclusions within it have been neither challenged nor tested in cross-examination. 

40. The plaintiff's challenge to the utility of the modelling undertaken by Dr Muthumuni relates to the following matters:

    (i)The network maps and information provided to Dr Muthumuni are not in evidence.

    (ii)That his report discloses reliance upon one map of the network (which appears within his report and is marked "figure 1") and that there is no evidence he relied on other maps.

    (iii)That the network map relied upon by him is undated and it is unknown whether the map represents a current network layout or that which was in place on 10 December 2010.

    (iv)That it contains handwritten information likely added for the purpose of litigation, with no evidence who added it, let alone their qualifications or experience, or the source of the information.

    (v)There is no evidence the network has been constructed in accordance with the design drawings provided, and there is no evidence led by the defendant that the network line had been audited for accuracy against the map provided to him.

    (vi)The report does not disclose whether he attended to compare the model with the built form of the network, or engaged anyone else to do that.

    (vii)The network map cannot be tested by the plaintiff because it is unable to access the defendant's network.

    (viii)The network map may have errors.

    (ix)Dr Muthumuni was provided with a cross-arm diagram but not with other diagrams such as fuse arrangements, branches, circuit breakers, or transformer arrangements.  It is submitted that it is possible that the HVDC model considers Canadian distribution standards which differ from those in Australia.

    (x)The evidence of the length of the line is contained in documents tendered by the defendant in respect of which there is no evidence of field verification.

1. In respect of the modelling and the factual matters relied upon, the plaintiff submits:

   (i)The only evidence of the types of conductor used between the Glengarry recloser and the transformer is contained in the unattributed handwritten notes in figure 1.

   (ii)There is no specification of which conductors have been modelled: it is not specified whether one conductor for the whole model or different types of conductor have been considered.  It is submitted that if the former, then the model fails to reflect that which exists in the field, and if it is the latter, the different conductors used are now shown.  It is submitted that this failure to properly disclose underlying assumptions reflects the weight which can be given to the modelling.

   (iii)The network maps only show the network in the immediate vicinity of the recloser and the pole, suggesting the modeller has not taken into account other assets of the network.  (The implications of these variations were the subject of evidence from Mr Page who said the nearby Brocklands quarry operating with large machinery may have an effect on surge voltage.  It is put that Dr Muthumuni was not provided with this information, and did not validate the information on site so that he could not take it into account in the model that he has prepared.)

   (iv)The HVDC model shown at figure 3 in the modelling only models the line between the recloser and Brocklands.  Since the network expands across the entire State, and the network in the area is far more expansive, the modelling is deficient. It is further submitted that Dr Muthumuni does not state that he considers the level of information with which he has been provided to be sufficient, although this is implicit, it might be thought.

   (v)The modelling fails to model four surges caused by a recloser operating four times in quick succession, an aspect the plaintiff's experts consider critical to the modelling.

   (vi)There is no consideration of surge reflections caused by the recloser operation four times.

   (vii)The modelling assumes a one second recloser operation and the actual specifications are not known and have not been provided.

   (viii)The type of recloser has not been provided to the modeller to consider whether it is a variable that needs to be taken into account.

   (ix)The modelling fails to take account of the way in which the recloser was activated by a tree fallen over the line and therefore a fault that was occurring further along the line in an area that was not being modelled, while the recloser was operating, was not considered.

   (x)The HVDC report discloses the modeller has not referred to the specifics of the transformer or the orientation of the pole in question; there is no suggestion that he has referred to photographs of the pole or the transformer. 

   (xi)Dr Muthumuni was not provided with material which disclosed the recloser setup.

   (xii)The map (referred to as figure 1) refers to a typical pole height of 8.85 metres, whereas the pole in question is 12 metres.  The plaintiff contends that after burial in accordance with the requisite standard requiring 1.8 metres below ground, the pole height would be 10.2 metres, not 8.85 metres.  This is said to be a parameter for the modelling, the impact of which is "unclear". 

   (xiii)There is no disclosure in the report as to whether factors such as magnetic field density or rain humidity and air pressure may have an effect on the modelling and thus the results.

   (xiv)The loading on other assets on the network is not disclosed, raising the question of whether there are exceptions to the rule that generally the load on the LV side acts to link with the transient over voltage. 

   (xv)Finally, it is submitted that Mr Page opined that Dr Muthumuni had failed to properly model the Low Voltage system connected to the transformer in accordance with Australian Standards.

2. The plaintiff submits that the Court cannot be satisfied that Dr Muthumuni's modelling actually represents the worst case scenario as he stated in his preamble.  It says that the Court should reject the defendant's submission that the modelling reflects the makeup of the defendant's network.  It submits that accurate modelling must include a proper survey of the line to determine whether the network maps are in accordance with reality; validation of the model against field testing of the network is required; a model that takes account of the precise operation of the recloser, including how many times it operated and the time taken to reclose is required.

3. The plaintiff also submits that full knowledge of the technical specifications of the recloser is necessary, as well as information with respect to the actual types of conductor, the actual length of the line, the correct pole height, and the extent of the network and the impact of that network and its characteristics on the modelling.  It is submitted that the modelling should take into account why the recloser operated, and deal with phase faults in the correct order.  It is submitted that the defendant has failed to provide an accurate model, has done so at the last minute, and produced a "woefully inadequate model in an attempt to exculpate itself from liability". 

4. As a result the modelling ought to be given no weight because the Court cannot be satisfied on balance that the information provided to Dr Muthumuni was correct and accurate, and that the model reflects the network as at 10 December 2010, and that it models what is known to have occurred on that day.

5. The issues the plaintiff raises in respect to this evidence, and the methods have not been put to Dr Muthumuni. He was not required by the plaintiff for cross-examination, though made available. The relevance, and importance of many of the matters raised to the utility of the opinion to the Court in reaching a conclusion on causation, are very much matters for expert judgment, themselves. The court observes that as an expert Dr Muthumuni comprehends the matters relevant to his modelling, and necessary to complete it. It might reasonably be supposed he obtained what he needed for his purpose. But the plaintiff's failure to test his evidence by investigating any or all of these issues cannot be ignored in dealing with its objections. The court is satisfied having analysed the evidence of Dr Muthumuni and considered it in the context of the expert evidence, that it adopts appropriate methodology, based on correct inputs. A careful analysis of his report discloses appropriate allowance for relevant variables, such that the Court is satisfied that this modelling is relevant, accurate, material and useful, and can be applied to the case. The plaintiff's submissions are without substance. They are with respect more in the nature of advocacy, a series of challenges the plaintiff preferred not to put to the author of this evidence.

6. One other issue raised by the plaintiff requires mention. It urges rejection of the evidence, upon the somewhat semantic proposition that because Dr Muthumuni expressed an opinion that it was "unlikely" that the amplitude of the surge voltage would be sufficient for a flashover, as distinct from using the word "impossible", the plaintiff's hypotheses as to causation remain possible and thus, subject to evidence, capable of being established as more probable than not. 

7. At the outset it may be observed that the notion of something being impossible is beyond the ability of any of the experts to opine.  In the Court's view Dr Muthumuni's use of the word "unlikely" is synonymous with "improbable".  Improbable is synonymous with unlikely, and engages the language of probabilities in a context where it is to the probabilities the Court must turn its mind.

8. Turning to that evidence, the conclusion expressed by Dr Muthumuni relates to each of the hypotheses advanced by the plaintiff.  Dr Muthumuni referred to scenario A, scenario B/C and scenario D. The plaintiff's case has been expressed in terms of scenarios A, B and C. It is helpful to identify the scenarios as explained by Dr Muthumuni in his report.  He describes scenario A as a switching surge which reaches the transformer 22 kV bushing and enters the High Voltage earthing system via coupling, without the bushing spark gaps flashing over.  Scenario B/C involves a switching surge reaching the transformer and flashing over from the HV 22 kV conductor to the low voltage (LV) Active conductor.

9. Scenario D involves the switching surge reaching the transformer and the spark gap firing, sending energy into the HV earth.

10. Dr Muthumuni's method involved a sensitivity analysis being carried out to determine the impact of HV and LV earthing resistance on transient voltages and currents.  The earthing resistance values considered were:

    (i)HV earth 30 ohms and LV 30 ohms.

    (ii)HV earth 97 ohms and LV 21 ohms.

11. For each scenario, loading conditions on the LV side of the transformer were studied:

    (i)No load connected.

    (ii)Maximum load connected.

    (iii)Average load connected.

    (iv)Minimum load connected.

12. Dr Muthumuni used the PSAD model to investigate the switching frequency over-voltages due to the operation of the recloser.  The Power System Technology Centre, a division of the Manitoba Hydro International Limited operation, performed switching transient over-voltage studies to determine the impact of a 32 kV recloser operation on transient voltages on the Low Voltage (480 v) of a transformer.  The pole mounted transformer High Voltage side is supplied with a two phase 22 kV connection.  The Low Voltage side is a 480 V centre tap winding.  The transformer is configured in accordance with that at the nursery, with a separate HV and LV earthing system. 

13. Dr Muthumini's modelling gives values of the expected voltage and current of the transformer for each of the plaintiff's proposed mechanisms on the HV earth, LV active and LV neutral conductors.  His modelling applied details of the actual HV feeder from Glengarry recloser to the transformer, including its different section lengths and conductor types to model the network impedance and to represent the propagation of the surge in the Brocklands context.

14. Dr Muthumuni reported that the maximum voltage recorded in his modelling across the HV bushing air gap was 36.73 kV.  He concluded that "based on typical air breakdown strengths, it is unlikely that the amplitude of the surge voltage would be sufficient for the air gaps to flashover". 

15. This evidence, Dr D'Alessandro's evidence and modelling, and the evidence of Mr Gillespie, renders the plaintiff's hypotheses no more than speculative. 

16. The plaintiff has not established on the balance of probabilities that there was a high voltage surge event in December 2010 which damaged the PLC.

17. The plaintiff has not established that the configuration of the pole was a necessary element of the harm to the PLC.  It has not established factual causation to the standard required, and described in Langmaid (above) and the cases cited there, and repeated earlier in these reasons. In the language used by Blow CJ in Langmaid, and at the risk of repetition, the Court does not feel an “actual persuasion” and it declines to draw the inference that the harm to the PLC was caused by the defendant.

18. The final matter is whether the case is an exceptional one for the purposes of s 13(2) of the CLA. I reject the "exceptional case" submission made by the plaintiff. That provision has its genesis in the difficult cases of personal injury sustained by workers exposed to multiple episodes of asbestos or silica dust leading to mesothelioma. In those cases each exposure was capable of causing harm and the only question was which episode it was.

19. There are few if any cases outside that factual scenario, where this section has been considered let alone applied. Indeed I am not aware of any cases where the provision has been applied to a case such as this where it is not a choice between which mechanism for which the defendant is responsible, caused harm, but whether any mechanism for which the defendant is responsible is implicated causally in the claimed harm. Section 13(2) is not intended to sustain a speculative case. Where a plaintiff has satisfied a court that one of its theories must be right, but it cannot say which one, s 13(2) is engaged to solve the conundrum and avoid the need to make a choice. That is not the case here. I decline to treat this case as one which engages s 13(2) of the CLA.

20. The Court will not proceed to an assessment of damages given its conclusion.

21. The plaintiff's action is dismissed.