Bus v Sydney County Council

[1989] HCATrans 72

..

• "i

• -~~~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl20 of 1988

B e t w e e n -

GILLIAN MAUD BUS

Appellant

and

THE SYDNEY COUNTY COUNCIL

Respondent

MASON CJ
DEANE J
DAWSON J
TOOHEY J

GAUDRON J

Bus(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 APRIL 1989, AT 10. 15 AM

Copyright in the High Court of Australia

C2T 1 /1 /ND 1 4/4/89

MR R.V. GYLES, QC: If Your Honours please, I appear with

MR L.G. STONE for the appellant. (instructed

by Hunt and Hunt)

MR K.R. HANDLEY, QC: If the Court pleases, I appear with

MR M.E. BOYD, for the respondent. (instructed

by Bartier, Perry & Purcell)

MASON CJ:	Yes, Mr Gyles.
MR GYLES:	Your Honours, may I hand up copies of our

outline of submissions.

MASON CJ: 

Thank you.

MR GYLES: 

Your Honours, it is possible to approach the appeal simply on one basis and that is

substantially the basis that we have outlined

in our outline of argument and if I may run

through it to give Your Honours the scheme of

it and then come back to seek to make it good.

It is our submission that each member of

the Court of Appeal would or mAY have found
negligence were it not for DELL'ORQ.

Mr Justice McHugh and Mr Justice Priestley put

it positively,  Mr Justice Hope in a slightly

more qualified way.  In our submission,

DELL'ORO, which I will take the Court to shortly,

when the relevant issues are discussed, was

dealing with the effect of the lack of expert

evidence and with breach not with the formulation
of duty.

(Continuing on page 3)

C2Tl/2/ND	2	4/4/89
Bus(2)

MR GYLES (continuing):· As it happens in the very case

itself Mr Justice Jacobs said that that question

is always a question of fact and never a question

of law. Thus, in our submission, DELL'ORO does

not bind in point of precedent - that is a misprint

for CONKEY, Your Honours, in paragraph 4. Thus,

whilst the members of the Court of Appeal are

entitled to give such respect to the factual

decision of the Court as they thought appropriate

it was an error in principle for them to, as it

were, abdicate their own decision-making role, express the view that were it not for DELL'ORO they would have found negligence and then to

take the course that they did.

Mr Justice Priestley's judgment gives rise

to the precedent debate, the philosophical question

which arises. Perhaps I could take Your Honours

to that at page 234 of the book.

MASON CJ:	What do you mean by''philosophical question"?
MR GYLES:	Well, the question, Your Honour, is to, I suppose,

what statements by the superior court govern in point of precedent and if they do not govern in

point of precedent what is their effect.

MASON CJ:  Well, it is hardly a philosophical question,

is it?

MR GYLES:  Perhaps not, Your Honour. At the top of page 234

His Honour states His Honour's view as to the

effect of the majority below and then at line 12

says:

This brings me to the question which I find difficult. Is this court bound to apply the

foregoing proposition in deciding the present

appeal? If this court were not bound to apply

the proposition my opinion would be that,

accepting the Council's duty to Mr Bus was as

I have earlier stated it, the appeal should be

upheld on the basis that there had been a breach

of that duty, for the reasons indicated by McHugh JA.

Now, in my submission, His Honour is saying if he

were not bound, or if the court were not bound

by DELL'ORO, then he would have found breach of

duty but he goes on to say:

it is arguable that the particular statement of the

High Court is not of the kind that binds the

courts below it. The argument would simply be

that even the High Court cannot turn questions

of fact into questions of law. But the

argument, if it were to be pursued, would be

a very sophisticated one: the distinction between

questions of fact and questions of law can be very

difficult, and the doctrine of precedent has many

convolutions.

C2T2/l/MB	3	4/4/89
Bus(2)

MR GYLES (continuing):

The most acceptable approach to the problem seems to me to be the one which, in my

estimation, most lawyers and laymen

acquainted with DELL'ORO would expect:	a
majority of the High Court made a clear statement of what should happen in a
particular class of case, that statement
is very likely to have been taken by the people in the relevant field as an
authoritative statement of the position
in such cases, and this is such a case: therefore the appropriate thing for this court to do is to act on what the
High Court said, without attempting a
complicated juristic dissection of it.

Now, Your Honours, it is our submission that

the principle is not sophisticated or convoluted;

that DELL'ORO, .(1974) 132 CLR 97, if Your Honours

go to that decision - - -

TOOHEY J:  Mr Gyles, is the apparent quotation in item 3 of the

outline intended to be a quotation from DELL'ORO or is

it a paraphrase?

MR GYLES:  It is intended to be, Your Honour. I hope it

succeeds. It is page 119, at the foot.

TOOHEY J:	I see.
MR GYLES:	If I can read from Mr Justice Jacobs, in the last

full paragraph on that page:

There appears in this case a misconception

of the question which falls to be determined by a jury where there is evidence of negligence to go to the jury. The question for the jury is

not primarily whether there is a reasonably

that if there is such a risk then a defendant	foreseeable risk of injury with a consequence
owes a duty to take reasonable care to remove
or diminish it. When a duty of care to a
particular person in particular circumstances
is found to exist then the performance of that
duty requires that a defendant does not do any
act or omit to do any act which a reasonable
man would not do or would do whereby injury is
likely to be caused to the particular plaintiff
in his particular circumstances. The particular expression of the duty by relating it to the
person and the circumstances in no way involves
the translation into the enunciation of the duty of care of the acts and omissions which mav in the particular case be fmmd to be breaches of the duty.

C2T3/l/SH	4	4/4/89
Bus(2)

It is always a question of fact and never

a question of law whether a particular act

omission was one which a reasonable

or omission is a breach of the duty of care. act or

man would not or would omit to do.

(Continued on page 6)

C2T3/2/SH 5 4/4/89

Bus(2)

MR GYLES (continuing):  So that, in our respectful

submission, the principle happens to be stated

in the leading judgment in this particular

case and_ if that, Your Honurs, is linked with

CONKEY V MILLER, Your Honours, at 51 ALJR 583

at 585 in the Chief Justice's decision which was

agreed in by all i:he other members of the Court,

with some qualification by Mr Justice Murphy.

In the right-hand column of page 58~, Your Honours

will see that there is a passage from BUTLER's

case set out from Mr Justice Fullagar, dealing

with a point that a fatal occlusion was unrelated

to an earlier occlusion and death did not result.

After setting that statement out, the

Chief Justice says:

The statement was said to be a summary of

the effect of the expert evidence which

was taken as having been accepted by the

primary judge.

The case does not decide any principle

of law. The statute requires the death

to result from work-caused injury:
whether it does or does not is a matter
of fact. Doubtless, in applying the

concepts of causation, a statement by

an eminent judge such as I have quoted

is entitled to respect by those who have

themselves to decide a question of fact

upon the evidence of the case before them.

But its persuasion rises no higher: and

certainly does not bind' in point of

precedent.

So that, Your Honours, the simplest approach to

the cas~ from our point of view, is to say that

Mr Justice Priestley's question should have been

answered, "No, the court is not bound in point of

precedent" and thus, the court and His Honour

should have given effect to His Honour's own view,

joined with Mr Justice McHugh, they ~ thus would

have formed the majority and we should, therefore,

succeed in this appeal. Your Honours - - -

DAWSON J:  It is true to say, is it not, that if .. the case is

indistinguishable on the facts, then it ought

to be followed and the question really resolves
itself into one of whether the case is

distinguishable on its facts?

(Continued on page 7)

C2T4/l/JH	6	4;4/'d9
Bus(2)

MR GYLES:  Your Honour, we would submit that may often

be the result, but that is not - - -

DAWSON J: It is too simplistic.

MR GYLES:  - - - the doctrine of preceden~ we would

respectfully submit.

DAWSON J:	Why not?
MR GYLES:	Because a question of - - -
DAWSON J:	Because if there is no distinction on the facts

then all you are left with is the law.

MR GYLES:  Not really, you are left with two questions

cf fact, with respect. A fresh tribunal corning

to consider the same question is perfectly

entitled to come to its own view on the facts

provided of course that it is open and rhe mere fact that

another court and a superior court has_said that - - -

DAWSON J: That will mean that it will find some distinction

between the facts of the case in hand and the

case which is said to be a precedent.

MR GYLES:	Almost inevitably a practice, Your Honour, because it would be the respect which would
be paid to the higher court particularly if
it is a higher court in the appellate system.
DAWSON J:	Why not always? If you cannot distinquish the facts in any relevant way you are left with the
law.
MR GYLES:	Because that would be to, in my respectful

decision, convert a factual decision into

a legal principle which -

DEANE J:	But what if the facts had been the same here
as in DELL'ORO and it had been a jury trial;
are you really saying that the trial judge
would have been entitled to say, "t-1otwit.11.standing the fact
that the High Court said in DELL'ORO that the
judge should have directed the jury that there
was no evidence, I disagree.  I won't give
them that direction"?
MR GYLES:	No, Your Honour, because, as I will seek to put,

the point in DELL'ORO was that without expert
evidence there was no case fit to go to the

jury and I accept that that was the ratio of

DELL'ORO and a trial judge would depart from it

at his peril and perhaps my answers to

Mr Justice Dawson should be modified to that

extent, that there was a point in DELL'ORO

which - - -

DAWSON J: "The facts were either different, or at least

there was evidence on which you could come to a

different conclusion.

C2T5/l/JM	7	4/4/89
Bus(2)

MR GYLES:  That is so and I was really answering

Your Honour more in principle. If you have a factual situation like DEI.L'ORO and there

happened to be some expert evidence then the

fact that a court, and a superior court, had

expressed a view about those facts would not

bind in point of precedent although a court -

Now, Your Honours, I do not wish to make a

submission which is devoid of practical content.

I mean, clearly enough, the triBl judge would

be very much guided by what is said by a superior

court, even on a question of fact but

Mr Justice Priestley posed the question in a

very extreme· form. He said; "My view is that

there is liability and I agree with

Mr Justice McHugh but I will yield to the

High Court on the basis that I am bound to do

so." and, in our submission, he was wrong in

so doing and should have therefore upheld the

appeal and that would lead to the result that

there would have been a successful appeal at

that level and that is the situation which this

Court should have .restored.

Your Honours, in any event, we submit that

Their Honours and the trial judge did misconceive the true effect of the decision in DELL'ORO.

The critical passages, Your Honours - first of

all in the statement of facts, at page 98 point 7,

it can be seen that:

no evidence was adduced as to what was proper

practice on the part of Mr Briody -

who was the , County Counc i 1 employee -

nor was there any evidence upon the question
whether a competent electrician in the

situation in which the deceased found himself could and should have taken steps to insulate

himself from the danger of electrocution

while restoring the fuse board to its proper

place.

In other words, there was no relevant expert

evidence called at all. Now, His Honour

Mr Justice Mason dealt with this point at

page 113, point 7 of the page:

(Continuing on page 9)

C2T6 /1 /ND	8	4/4/89
Bus(2)

MR GYLES (continuing):

The evidence is silent upon the question

whether a competent electrician in the situation

in which the deceased found himself could and

should have taken steps to insulate himself

from the danger of electrocution while restoring the fuse board to its proper

position. One imagines that some step of

this kind could and should havebeen taken.

Likewise the evidence says nothing as to the

practice observed by electricians placed in the

position in which Briody found himself.

I agree with Jacobs Jin thinking that the

absence of evidence as to what was proper

practice on the part of Briody -

that is the Council employee -

was in the circumstances fatal to the

respondent's case. The standard of care to

be expected of Briody depended in some measure

on the ability of the deceased as a competent

electrician to protect himself from the risk
of electrocution in the work which he was
undertaking. In my opinion evidence as to

these matters was essential to the

drawing of an inference that Briody was negligent

in the circumstances.

There are many cases in which a failure

to take reasonable care for the safety of another

may be inferred in the absence of expert

evidence where as a matter of common sense and

common knowledge it is possible to conclude that

a particular act or omission will give rise to a

foreseeable risk of injury of another.

This is not such a case. It involved the conduct

of skilled tradesmen in relation to a danger

arising from electrictty. As such it required

expert evidence. Without such evidence it
could not be inferred that the failure to

replace the cover involved a foreseeable risk of

injury to the deceased.

Then, Your Honours, Mr Justice Jacobs, at page 120,

the last full paragraph:

When the duty of care is correctly formulated

in the instant case, it becomes clear that there

was no evidence of a breach of duty fit to be

considered by the jury. It is not sufficient

that it might be found as a fact that the leaving

of the links uncovered by Mr Briody brought
about "a situation where it is not unlikely that

C2T7/l/PLC	9	4/4/89
Bus(2)

it will be accessible to persons in the

vicinity or who he may _reasonably anticipate rny

come into the vicinity". The question is

whether the leaving of the links uncovered
was an act showing a lack of reasonable

care for the safety of the deceased who was

believed to be a fully competent and

licensed electrician and who knew that the

exposed links carried live current at 4.15 volts.

The fact that the deceased was not himself

licensed is by the way. Mr Briody had every

reason to believe that he was because he should

not have been doing the work unsupervised if

he was not. There is no dispute that he was

holding himself out as a licensed and fully

competent electrical contractor.

(Continued on page 11)

C2T7/2/PLC	10	4/4/89
Bus(2)
MR GYLES (continuing):

The danger of electrical mains current is generally known in the modern world and those

trained in working with it live in constant

exposure to the danger from it if they do

not take the precautions which are part of their

everyday working life. It is an expert field

and before it could be said that in the context

of that expert field the leaving of links

exposed is unreasonable some evidence would be

necessary that to do so was a departure from

usual practice or exposed even a qualified

man to a risk which was not part and parcel

of the work which he did day by day. There

was no such evidence.

DAWSON J:	It that case, but there was in this case.
MR GYLES:	In this case.
DAWSON J:	Why are deep philosophical questions involved?

In other words - - -

MR GYLES:  No, I agree it is not particularly deep,

Your Honour, in the circumstances of the case.

We submit that Mr Justice Priestley's path was

clear enough, and my narrow point at the moment

is that DELL'ORO is authority only for the proposition

that in those circumstances there must be expert

evidence before a jury or a tribunal of fact may

draw an inference of breach of the duty of care.

It stands for that and, with respect, nothing more.

DAWSON J:  What did the expert evidence say in this case,

just shortly?

MR GYLES:  The expert evidence in this case, Your Honour -

there were three independent experts called.

There was the Council employee called and the partner

of the deceased was called. There were two planks
to the plaintiff's case.	The first was power had been

disconnected to enable work to proceed but had been

reconnected by the County Council before the work

was completed. The first point was it should never

have been reconnected until the work was completed.

So far as that is concerned the two experts called

for the plaintiff said that that was a premature reconnection and bad practice. The third expert

called by the defendant said it was good practice,

meaning it was not bad practice. The County Council

employee said that it was the County Council's

responsibility to decide when to reconnect in those

circumstances. So that the expert evidence, we would

say, leads inevitably to the conclusion that that

was a head of negligence to which there was really

no answer unless one accepted the rather, if I may

s·ay so respectfully, out of line view of the defendant's

expert, bearing in mind that power was off. It was

off in order to create a situation of safety and it was brought

on agai.Tl for no good reason before the ,;rork was canpleted.

C2T8/l/MB	11	4/4/89
Bus(2)

MASON CJ:  But that is not an accurate account, is it,

of the basis on which a Court of Appeal would

have been disposed to find negligence

against the defendant?

MR GYLES:  No, that is correct. That is the first limb

of the plaintiff's case and it is the one which, with respect, is really a complete

answer to the whole of DELL'ORO. That case

has nothing to do with DELL'ORO at all.

MASON CJ:	Yes.
MR GYLES:	The second limb of the plaintiff's case had

to do with covering the exposed live connections

in the Council's service fuse-box during the

temporary absence of the Council employee, the

case being that nobody else but the Council

could interfere with the box and effect that

purpose. There, in answer to Your Honour's

question, the expert - there was a division of

opinion amongst the experts - one of our

experts said and maintained that covering was

the appropriate course. The second expert called

by the plaintiff, in cross-examination, said

that a temporary absence for a telephone call -

it might not be necessary to do so - and the

expert called by the defendant said, "not necessary". -

That was the su.nnnary of the expert evidence on

that point.

MASON CJ:  What were the findings in relation to that

expert evidence? Now, at least two members of
the Court of Appeal found that, as I understand

it, that the covering should have been placed.

MR GYLES:  Yes, they did. Now, if Your Honour is asking

me about the trial judge's finding.- - -

MASON CJ:	Yes, what did the trial judge find?
MR GYLES:	The trial judge's finding, Your Honour, on

the covering point, as to the expert evidence -

His Honour sets out the expert evidence starting from page 186 and it goes through to page 194.

And, at page 195, line 25, concluded:

In this case, unlike DELL'ORO, there was expert evidence as to what was proper

practice in the circumstances as they

existed in the switchroom. It was not

unanimous but the weight of the opinion,

I find, supports the defendant's

submission that no additional precaution

was required. Each of Messrs Dickison,

Osman and Jobson agreed, in effect, that

C2T9/l/JH	12	4/4/89
Bus(2)

work within close proximity to

electricially charged apparatus was a

common experience for an electrical

tradesman, and a hazard with which

such a tradesman would be accustomed and trained to deal. Mr Laudans did

not wholly agree with this, drawing

a distinction between the frequency

with which installation electricians

might experience such a situation as

compared to maintenance electricians.

Each of Messrs Osman, Laudans and
Jobson agreed that in good practice,

electrical tradesmen should not place

themselves in an unstable position

when working within touch of an

uninsulated live terminal, or take a

purchase on a service fuse cabinet of the

kind which was present while feeding

the earth conductor through the panel

below.

Each of Messrs Osman, Messina and
Jobson said in effect that while it was:

good practice to cover and seal off

apparatus which had exposed live

terminals at the end of a work session,

this was not necessary while work was

continuing on that apparatus, even if

interrupted for a brief time, at least

so long as there were no unauthorised

persons in the area. Mr Laudans

disagreed, saying in effect that it was

bad practice to leave the terminals
uncovered at any time.

In my view it is to be concluded from this expert evidence that neither the

restoration of power which merely

brought about a situation with which a

qualified electrician was accustomed to

deal, or the failure to insert the top
fillet and hang the cover during the
short period Mr Messina left the room
to telephone his depot, amounted to
negligence.

(Continued on page 14)

C2T9/2/JH	13	4/4/89
Bus(2)

MR GYLES (continuing):

It seems to me that the evidence as to the

work in progress and the expert evidence

as to practice, point in the other way.

..... the deceased was aware of the live

terminals; he had no occasion to work on

the service fuse cabinet himself; and good

practice dictated that if he was to go

within reach of it, he would not work from

an unstable position, or place his hand on

its terminals without first providing some

means of insulation.

Now, Your Honours, there are a couple of matters which ought to be noted in connection

with those findings. The first is that the

partners, Dickison and Bus, had not worked in

conjunction with one of these service boxes

before. It was not part of their experience.

That appears from a number of parts of the transcript

and perhaps if I could give Your Honours the

reference to those pages: page 26 line 35,
page 29 line 30, page 39 line 36, page 52 line 37,

and page 53 line 22.

MASON CJ:	Was that fact known to the defendant's officers?
MR GYLES:	The evidence is silent about that, Your Honour,

one way or the other. Secondly, as His Honour

recites, "Mr Laudam may have drawn a distinction

between installation electricians and maintenance

electricians", so it does not follow that all

had the same experience. His Honour Mr Justice Wood

apparently accepted at page 187,line 10, that

this:

was not usual work for Mr. Bus and himself.

Your Honours, in addition to Mr Laud.ams, Mr Osmand, at page 84, line 20, also said it

would be unusual for an electrician to have worked

on a Council fuse box, or service box, and that

is no doubt that that is work. reserved for the

County Council itself. So that there needs to

be that qualification to the findings to which

I referred.

TOOHEY J: Just before you leave that, Mr Gyles, what does

that tell us, to say that:

it would be an unusual event for

anybody not employed by the County Council -

to work on that type of box? Is it so
different from other fuse boxes on which

electricians work, and if so, in what respect?

C2Tl0/l/JM	14	4/4/89
Bus(2)

MR GYLES:  Your Honour, there is no suggestion of

anything unduly complex about it, I must concede

and indeed Mr Bus was not working on the

Council box when the accident happened but it

really assists in saying, with respect, that

you cannot just say every electrician has the

same experience. A county council electrician

may have a certain type of experience; an

installation electrician another form of

experience; a maintenance electrician another

form of experience. So that in answer to the

point made by the Chief Justice a few moments

ago, did the Council employee know of their

lack of experience in working in conjunction

with the Council box, my answer is there is

no evidence about that, but it was not for

him to make any assumptions.

(Continued on page 16)

C2T10/2/JM	15	4/4/89
Bus(2)

MR GYLES (continuing):  The experience of electricians

varies and it would not be a proper foundation

for him to assume that all electricians have

the relevant experience.

TOOHEY J:  But it does not tell you very much, does it, to

make that sort of statement unless you can go one

step further and point to some feature of this type

of work with which an electrician in the position of

the defendant might be expected to be unfamiliar or,
perhaps, putting it the other way, might not be

expected to be familiar.

MR GYLES:  Well, I suppose it depends which starting point you

take, Your Honour. It is a relevant fact, in my

submission, to know that these particular electricians

were not accustomed to working in close proximity with

these service boxes. It is conceivable, although there

is no evidence about this, that the deceased may have

imagined that there were safety precautions which did

not exist. I mean, it is a rather odd thing that there

was simply no precautions taken in relation to an

extremely dangerous situation and he was to be

required, in the course of that afternoon, to work
there, to thread through the earth in close proximity

to it.

Now, he may have imagined that, having in mind

it was the supply from the street, there was some

safety device. Now, that is purely, Your Honour,

a speculation as to the type of thing which cannot

be discounted given those circumstances.

MASON CJ: And, at the moment, you are engaged in an exercise,

are you not, of endeavouring to demonstrate to us that,

as distinct from DELL'ORO, there was expert evidence

in this case.

MR GYLES: Yes.

MASON CJ: Because that is not enough, you have got to go further

and show that the expert evidence resulted in findings

of fact that distinguished this case from DELL'ORO's

case.

MR GYLES:  Your Honour, either findings of fact which were made

or should have been made.

MASON CJ: Yes.

MR GYLES:  Yes, I accept that, with respect, Your Honours.

C2Tll/l/SH	16	4/4/89
Bus(2)

DEANE J:	Mr Gyles, does it not, if one gets away from philosophy, all come to this - - -
MR GYLES:	I thought we had Your Honour.

DEANE J: At page 195, in the paragraph beginning at line 16,

the trial judge said that:

Mr Messina had no reason to suspect that - anyone would get up a ladder. Well, now, if that

is right, it is very hard to see that he was guilty

of negligence in going off to make a phone call.

Mr Justice McHugh rejected that finding at page 240

to 241.

MR GYLES:	Yes.
MASON CJ:	As did Mr Justice Hope.
MR GYLES:	As did Mr Justice Hope, yes, and what I had proposed

members of the Court of Appeal.

to do was to take Your Honours to the evidence of

DEANE J: Well, I did not mean to take you out of your order.

MR GYLES:  No. Well, Your Honour, it is a convenient matter

because it is, with respect, very much at the heart

of the case so far as the covering is concerned.	May
I take Your Honours to page 122, line 24:

(Continued on page 18)

C2Tll/2/SH ··	17	4/4/89
Bus(2)

MR GYLES (continuing):

Mr Bus was for part of the time engaged in taping the blue earth conductor?

A. That is correct.

Q. Where was Mr Dickison? A. On the ground

alongside Mr Bus.

Q. Where was the apprentice? A. I can't

recall that.

I might say, Your Honours, that we also point

to the fact that there was an apprentice in

distinction from DELL ORO and even though it the work area as bein7 a further point of

was not the apprentice that was injured we say

that proper precautions should have taken account

of the fact that he was there. That is a separate

point.

A. He was on the site, yes.

So Mr Messina knew the apprentice was there.

Q. I think you said the ladders were in

pretty much the same poisition. A. From

what I can remember -

And then he is shown a document headed "Report form produced by the Sydney County Council" -

Is that your signature? A. Yes, it

is.

Q. Is that your printing above the signature?

A. Yes, that is my writing.

Q. Would you agree at a glance I suppose

that it is a statement you made relating

Q. If I can just take you top 3 at the

to the evidence in this matter? A. Yes.

bottom of the statement, you say, "While

I had been up the ladder Mr Bus and

Mr Dickison had been preparing a main earthing

conductor which was to be sweated onto the

main earth behind the big wooden panel and

the other end was to be connected to the
main neutral bar in the service fuse cabinet".

Do you see that? A. Yes.

Q. From that it is obvious isn't it that

you knew that Mr Bus -

I will go, Your Honours, to the next question:

C2Tl 2/1 /ND	4/4/89
Bus(2)

Q. It was obvious to you wasn't it that

Mr Bus was going to have to bring himself

into close proximity with the service box

to carry out the work associated with the mains earthing conductor? A. Not near the top of it. He was only anywhere near the

bottom but I was not aware of what time

Mr Bus was going to do this work.

So Your Honours see from that answer that

Mr Messina knew that Mr Bus, as part of his

work on that afternoon, was going to have to

sweat the main earth behind the big wooden panel

and he did not know when it was going to take

place. Then he is asked this question:

It was obvious to you wasn't it that Mr Bus

in order to carry out the work that you

have described in the statement that I have

just read to you, would have to bring himself

close to the service box. That is so, isn't

it? A. Could I have a look at the photograph?

I just want to get your definition of "close".

He is then shown a copy of exhibit D. Your Honours,

I think my learned friend may have the exhibits.

Your Honours, exhibit Dis the photograph showing

the ladders and so on - they are marked on the

back. F shows a closer view of the Council

box and Eis a closer view again.

MASON CJ:	I have only got A, B, P and 1.
MR GYLES:	Your Honour is being deceived. If Your Honour

looks to the top right-hand corner there is a

hand written note.

MASON CJ: Is see.

MR GYLES: Dis the one the witness is being shown at

the moment. (Continuing on page 20)

C2Tl2/2/ND	19	4/4/89
Bus(2)

MR GYLES (continuing):  Now, Your Honours will see on D,

and more closely on F, a blue lead. That is the
earth which is being spoken of and that is the

work which the deceased was involved in doing when

he met his death. Going on at page 123 of Mr Messina:

I show you a copy of Ex D. The main earthing

conductor we are talking about is that blue
line appearing under the box? A. Right.

That is the thing that he was putting the tape

on the end of? A. Yes.

That is the cable he was putting the tape on?

A. Yes.

You say in your statement here, with which you have

agreed, "Which was to be sweated onto the main

earth behind the big wooden panel"? A. Yes.

Your Honours see the big wooden panel is in close

proximity to the service box.

The big wooden panel is the panel on the wall?

A. Right.

To do that he would have to bring himself

within the vicinity of the service box?

A. It would be around here. (Indicated).

You point to the bottom left hand corner of the service box itself, don't you? A. Yes, not being a contractor doing his work for him

but

You point to the bottom left hand corner

of the service box itself, don't you? A. Yes.

In order to get into that :position, he would have to use one of the ladders which are

available would he not? A. Yes.

Can you tell us the distance from the bottom

of the service box to the top of it? A. I would

not know that off hand.

Can you give us an approximation? A. Approximately

close to a metre.

So it would seem the live terminal area would

be at most about three quarters of a metre from

the bottom of the service box, that is so is it

not, if your estimate of one metre is correct?

A. Yes.

You were pointing out earlier you did not know what time Mr Bus was going to carry out the

operation of putting the earth conductor behind

the wooden panel? A. Yes.

But the mere fact he was taping it at the time
you left the job surely suggested to you it would

be within not a very long time after he had

finished taping it, that is so is it not? A. No.

C2Tl3/l/MB	20	4/4/89
Bus(2)

Is the position you just do not know when he might be putting that earth wire around that

wooden panel? A. That is correct. That could

have been preparation work. I do not know of the

sequence Mr Bus was going to complete that

section of the work.

TOOHEY J:  Mr Gyles, there is reference to the top and bottom

of the box andproximity to one or other. Can you just

make that a little clearer? The blue lead, presumably,

is at the bottom?

MR GYLES:  The bottom, and the bottom left-hand corner was

referred to, Your Honour, I take to be the corner

closest to the blue lead and then the top of the

box is the - Your Honours see the three - this is

on F - connections coming in from the - sorry, there

is actually four - street at the top of that box.

TOOHEY J:  And where is the 'position where the deceased placed

his hand that brought about the fatal injury?

MR GYLES:  It had to be at the top of that box, one of the nuts

below the incoming power. He was on a ladder and had

placed one foot elsewhere to be able to balance himself

and obviously unbalanced and came into contact with

these nuts. That is an assumption, there was no

actual observation of what happened. So Your Honours

see from that it was known by the Council employee

that he would have to do this work. It was known he

would have to do it from a ladder and would have to

do it that afternoon with the power coming in from

outside.

DEANE J:  What is the main earth that the blue cable had to

be sweated on for't.' Is it behind the hole that the

blue cable was going into?

MR GYLES:  Yes, I think that is right, Your Honour. It

is behind that board, Your Honour.

DEANE J:	Behind the hole?
MR GYLES:	It must be behind the hole.
DEANE J:	Or did he have to thread it to something else?
MR GYLES:	It would have to come from back to front, I am told,

Your Honour. I am not sure why that is so but it had

to be done that way.

C2Tl3/2/MB	21	4/4/89
Bus(2)

MASON CJ:  Would he have been completely protected if

the cover had been placed over the box?

MR GYLES:	From most risks, Your Honour.
MASON CJ:	What are the risks he would not have been

protected from?

MR GYLES:  Somehow, his hand going down behind the

cover. The cover was a -

DAWSON J:	Going down, or going up behind the cover?
MR GYLES:	The cover covered the - not the return, it

covers the face, not the returns.

DAWSON J:	Top or bottom?
MR GYLES:	Top or bottom.  It does not cover top or

bottom. The cover would prevent most risk of

contact, but not all, because it is possible he

could have got above it. Thus, at the end of a

day, it is covered in with top, bottom and face.

But the case - - -

MASON CJ:  But, his hand would have had to touch some

part of the metal within the box itself in order

to expose himself to electrocution.

MR GYLES:  Yes, that is so, Your Honour. And, Your Honour,

the other possibility which emerged was that there

was a canvass cover which might have been placed

over part ot the installation but it seems that

in the particular circumstances of this case,

replacement of the cover was clearly the quickest

and most effective way of dealing with a

temporary absence.

TOOHEY J:  Do you do that by just sliding the cover over

the face - - -

MR GYLES:  Yes, there are two lugs, I think, Your Honour,

over which it slides. As you can see, it hooks
on at the top and bottom of the side and then
you have got a clip at the other side.
Your Honours appreciate that you will see a gap
in the box - it is the metal which is above that

gap which was live and the metal below it was not

live; the fuses have not been -

the left-hand lead was neutral.

GAUDRON J:  May I just be clear, Mr Gyles, neither the box

nor the board was flush with the wall?

MR GYLES:  Yes, that is so, Your Honour.

C2Tl4/l/JH	22	4/4/89
Bus(2)

GAUDRON J:	Thank you.
MASON CJ:	And the work that he had to do, in terms of earthing and fixing this blue earth wire, was that all in the area where the earth wire
goes in through that hole in the board?
MR GYLES:	That is the path that was concentrated upon, Your Honour, at the trial. I mean, I presume
it has got to go somewhere else as well.
DEANE J:	Well, one would have guessed that there was a

wire at that hole to which he had to connect

the blue cable.

MR GYLES:  Yes, connected it anct then take the blue

cable elsewhere.

DEANE J:  The blue cable would then be an effective

earth to the main box?

MR GYLES:  Yes, that is so. But Your Honours appreciate

that from out point of view the Council

employee knew that was what was going to happen.

It is· not a question as to. whether that is the right . _

way or the wrong way but as the cross-examination
from page 122-125 to 124-127 shows, the Council
employee knew precisely what was going to happen
and how it was going to happen; he ctid not know

when it was going to happen. And thus, to find

that he had no reason to believe that it would

be done whilst he was absent is, with respect,

not correct. lt was just as likely to be done

then as any other time particularly as the

preparation work of taping up was taking place

as he left the room.

(Continued on page 24)

C2Tl4/2/JH	23	4/4/89
Bus(2)

MR.GYIBS (continuing):  So that critical finding of fact by

His Honour is, in our respectful submission,

vulnerable and the Court or Appeal -

Mr Justice Hope and Mr Justice McHugh - in our respectful submission, correctly reject that

finding.

MASON CJ: Well, now, that does not turn on expert evidence

at all, does it?

MR GYLES:	No, that does not, Your Honour. That does not.
MASON CJ:	And yet, that seems to be the critical point on

which the Court of Appeal disagreed with the trial

judge.

MR GYLES:  Yes, it does and in DELL'ORO, the facts were that

the Council employee had no reason to believe that

the workman would do anything like he did.

MASON CJ: Well, is that not the critical point of distinction,

rather than the emphasis that you were seeking to

place on expert evidence?

MR GYLES: Well, Your Honour, I think they are both valid

answers and it is not for me to rank them. What

DELL'0RO stands for is the absence of expert evidence.

If one goes to the facts in DELL'ORO, then there is

that very relevant difference in the facts between
that case and this.

Now, Your Honours, may I also develop, if I may, the case of reconnection which was made.

Your Honours, His Honour's finding about it,

at page 196, line 25, is economical in the extreme.

MASON CJ:  Is this embraced by some ground in the notice of

appeal?

MR GYLES:  Your Honour, my junior will check that now. It was

certainly always part of the case both here -

MASON CJ: Yes, but I mean once a case leaves the Court of

Appeal, special leave enters into it.

MR GYLES:	Yes.	Your Honour, can I have that checked?
MASON CJ:	Yes.

MR GYLES:  As Your Honours see, it was a case made at all times

below.• Now, His Honour's resolution of it was at

196, line 25. His Honour recites the evidence of

the experts but does not really resolve any dispute

between the experts as to this point expressly. So,

can I take Your Honours to the evidence of Mr Dickison

at page 26, line 36. He refers to the fact that:

C2Tl5/l/SH	24	4/4/89
Bus(2)
MR GYLES (continuing):

Q. At the time you attached those cables there was no power on to the service

box? A. No, there was no power on.

Q. What else happened that morning,

did the county council do any work

that morning? A. The county council

disconnected the power from the original

point of attachment and their service

fuses in the factory, the county council

fuses were all disconnected.

Q. By whom? A. The county council.

Then the method of doing that is explained and

at line 16 on the following page:

Q. In any event, was power reapplied

through the_point of attachment at some time

that day? A. Yes, there was.

Q. What time was that one? A. Some time

after lunch, probably about 12.30, 1.30,

some time around there.

Q.	And had you and Mr. Bus been working
there all the morning? A.	We were.
Q. Inside? A. Inside.
Q.	Did you or Mr. Bus make any request for
power to be reattached? A.	I didn't.
I don't believe he did either.
Q.	Who was there from the county council
that morning that you saw? A.	I only recall

one person being there ..... Mr. Messina.

Then, Your Honours, at page 28, lines 25 to 29,

it was reaffirmed that neither of those people

had made any request. At page 31, line 3,

referring to the time of Mr Bus' death:

Q. But there was other work still to be

done? A. Yes, there was some wiring to be
done.

Q.	To be done by the contractors? A. Yes.
Q.	Where had that wiring been? A. At this

time new cables, those cables had to be run through. I had to finish some wiring here,

to one side, and some wiring in the main

switchboard had to be done.

Q. You said these cables had to be nm through? A. Yes,

from the box to the main switch.	They had to be nm
down to the main switch.

C2Tl6/1/JM

Bus(2) 25 4/4/89

Q. At the time the power was connected, had those bottom cables been connected?

A.	I don't recall when those bottom cables
were connected.	I just don't remember.
Q.	They are the cables circled with the

oval shape thing and the letter "A"?

A. Yes. I know, I see the cables -- I

don't remember when they were done exactly.

They may have been done in the afternoon

after the power was connected.	They may have
been done in the morning.

So, when the power was reconnected, the job was

incomplete.

Then, Your Honours, at page 38, line 4:

Q.	You had not made any request, as far
as you were aware? A.	I made no request.

Q. Mr Bus didn't? A. I don't think so. should be turned on? A.

Q. Were you consulted in any way that it

We were informed

that it was turned on, that's all.

Q. It served no purpose of yours to have it turned on at that stage? A. no.

Q. Were you able to say what time the accident happened? A. About quarter past three.

Q. About quarter past three? A. I think so.

Q. If things had not gone the way they did,

if the accident did not occur, you spoke of

about an hour and a half to run the cables

to the bottom terminals. What time would

you have expected work to have finished in

the normal course of events? A. That

wasn't the only work to be done - but to	finish them would have been about 5 o'clock.
HIS HONOUR:  Q. You mentioned a moment ago
the power being turned on.  What act was
it -

and that is described. At page 40, line 10, there

is the fact, Your Honours, that the factory was

closed down that week, so that there was no

pressingly urgent reason for getting power back on.

At page 44, line 25:

Q. Mr Dickison, were you and Hr Bus working towards any

any particular target as the time when you woulrl

complete having the power down to the main switch?

A. There was no time set. He just wanted to get it

done as soon as possible.

Q. And you wished to get it done that day, if you were

able to? A. That is correct.

C2Tl6/2/JM	26	4/4/89
Bus(2)

DEANE J:  Mr Gyles, what is he referring to when he says,

"to run the cables to	the bottom terminals" - he is
looking at exhibit F?	What cables is he running
from where to where?

MR GYLES:  Your Honour has exhibit F. Your Honour sees cables

coming from the bottom of the Council cabinet.	I take
it to be those, Your Honour.

DEANE J:  Well, in other words, Mr Bus was not only sweating

on the earth but he was connecting all those lower

cables?

MR GYLES:	Mr Dickison was, yes, Your Honour.
DEANE J:	Mr Dickison, that is his partner?
MR GYLES:	Between the two of them, yes, that is correct.
DEANE J:	And that all had to be done when they turned

the electricity off?

MR GYLES:  It all had to be done, yes, as part of the job.

Then, Your Honours, page 46, in cross-examination:

On the Wednesday that we have been dealing with, if I could remind you of the evidence,

that the line gang interrupted the supply

early in the day. If I could take you to that

point, from then on it was urgent for you and

Mr Bus to take the work on the consumer main

to the stage where the consumer main was connected

into the service fuse cabinet inside the

building and could be reconnected by the line gang

outside, was it not? A. That's right.

You expected the line gang to return at some stage

later that day, did you not? A. Yes.

And you did not have any reason for expecting them to return at any precise time, did you? A. No.

Had someone from the line gang said, to the effect,

that they would return after lunch early in the

day? A. I think someone may have said that.

You did in fact have a purpose to serve by the power being restored by the line gang on that day, didn't you, because you wanted to get the power down to the main switch that day if possible?

A. Yes.

And if power was restored to the building at all, it would, to your knowledge, plainly have energised

the line side or inlet terminals in the service fuse

cabinet, would it not? A. That's right.

They are the upper contacts, Your Honours.	Then,
at page 50	- - -

C2Tl7/l/MB	27	4/4/89
Bus(2)

MASON CJ: 

Before you go any further can I just ask you

something to confirm what I think arose from the response
you gave to Justice Deane. If the two of them

were engaged in running the cables from the points

at the lower end of the fuse box they would not have

been able to do that with the cover placed in position
over the fuse box?

MR GYLES: 

No.

MASON CJ: 

And yet that would seem to be a more dangerous

operation than the operation of connecting the earth

wire.while the electricity was on, the power was on?

MR GYLES:  And a very good reason for having power off.

MASON CJ:  Yes. I mean that may be the inference you draw

from it?

MR GYLES:  Yes. In our submission that is the very reason

why this power was connected in the morning and should

never have been reconnected until the job was finished.

MASON CJ:  Now, do we have any evidence which indicates the

nature of the arrangements that have to be made for

power to be put on and turned off?

MR GYLES:	Yes, there is evidence, Your Honour.
MASON .. CJ:	In other words, what are the conditions on which

the Council agrees to turn the power off?

MR GYLES:  What I will do is take Your Honour to that evidence,

it is quite short. It is from Mr Messina, the Council

employee.	I will take Your Honours to it in a few
moments.	The last part of Mr Dickison's evidence,

Your Honours, is at page 55. line 1. In re-examination:

You were asked by Mr Bryson whether you had

some purpose in having the power restored
on the day on which Mr Bus died.	You said "Yes".

Did you have any purpose in having the power

restored before the bottom cables had been attached

to the terminals in the service box? A. No, there

was no purpose.

You were asked by Mr Bryson whether you were not told

that the line gang would return on that day. They

came in the morning and went away and they told

you they would return? A. That is right, they

did.

A. No. But did you ask them to return at any particular hour? at any particular hour? No, he didn't actually.

C2Tl7/2/MB	28	4/4/89
Bus (2)

MR GYLES (continuing):  So, that is the evidence of Mr Dickison.

Your Honour, Mr Laudams was the first expert called by us and that is at page 59, line 36:

Would it be proper practice to active the

top terminals of the service box at that

stage?

the stage being where the condition in the photographs

was pertaining and he said:

In my opinion that would be premature but

if you elected to do that, then I would ensure

that the equipment was covered with fillets

and covers so that nobody can come in contact

with it. It is leaving a hazard around.

MASON CJ: Well, now, if he used fillets rather than the cover,

would it then b~ possible to protect the live terminals

at the top of the box and enable work to proceed,

connecting wires to the bottom of the box or not?

MR GYLES:  No, not with the metal cover that was available. It

is possible, I suppose, that a canvas or rubber cover

might have been used to cover part of the box and

there was some evidence about that but it was not

terribly satisfactory.

Then, Mr Laudams, at page 60, line 25 - it is

a long answer which starts at 20:

Basically I think I understand the question:

should anybody be working nearby with the exposed

exposed terminals there? Well, in my opinion there is no work needed to be done within the

box at that point in time. Then it should be

covered up because anybody can easily come in

contact with live terminals because wires are not needed to be connected in and you have to

work nearby.	It would be good practice to
have them covered up unless there are barriers
of some kind.	Say a manhole in the street which
someone walks past.	You put barriers in front
of them.	So it would be bad practice to leave

live terminals exposed whilst working in the

same vicinity. I am not sure if I answered

the exact questions you were asking.

Q. Let us assume simply this set of facts:

should power be left on to the box, the box

being uncovered, while there is still work

to be done to the box? Is that good practice?

A. Well, power should not be there while you

are working there but if you are aware of it

you should take precautions to ensure that

nobody can come in contact with it.

C2T18/l/SH ·.	29	4/4/89
Bus(2)

Then, Your Honours, Mr Laudams, at page 61

well I do not need to trouble Your Honours with

that'but at 62, line 7:

Q. In installing a service box and cables of the sort indicated in those photographs,

would it in your opinion be proper practice

to make a connection to power at the point

of attachment, that is where the cables

terminate, before the box is completed?

A. On the roof? Well, I think it would be

premature. If you are aware there is still
work being carried on inside the installation

itself, I would make that the last point of connection in the whole installation before livening up because of my concern for leaving

live, exposed terminals around, which I cannot

see, type of thing.

Q. You would regard it as proper practice to

make that attachment at the point of connection

the last item in the work? A. Correct, because that creates a safe working environment. Nobody

would have to be overly cautious in working in

that situation. If you liven it up you create

unnecessary hazards there while you are working

there. It is just a matter of timing when you

actually do it and the most appropriate time is

prior, before livening up the whole installation.

(Continued on page 31)

C2Tl8/2/SH. 30 4/4/89

Bus(2) ·

DAWSON J: Mr Gyles, I am not sure that I understand.

When you look at exhibit D, there is the blue -
what appears to be a black connection and then

a black and a red, a black and a red and a black

and a red. The black and the red connections

were being connected after the power was on?

MR GYLES:  Yes, Your Honour. I think Mr Dickison said

he could not remember when they were done.

MR HANDLEY:  The actual connection, Your Honours, was

done by the County Council, the contractors

just brought the leads out of the box and

attached lugs to the end of it and then the

County Council actually made the connection

in the fuse box.	That is the evidence of
Mr Dickison.

MR GYLES:  I think he was unable to put a point of time

on his work in connection with it.

DAWSON J:	But work was being done upon those terminals whilst they were live?
MR GYLES:	Yes.
DEANE J:	Those terminals would not have been live?
MR GYLES:	Not the bottom terminals, Your Honours, no.

The top terminals were alive, not the bottom

terminals. The bottom terminals were not live

when work was being done on them. I am sorry,

I misunderstood Your Honour's question. It

was the top terminals which were energized.

Your Honours, Mr Osman, at page 81, having

had a series of assumptions put to him about

the state of affairs, at line 15 of 81:

Q. That being the situation, you would regard

it as a proper practice to leave the power

to the top mains with the box in that

conditions? A. No.

Q. What would be the proper course? A.

There are two proper courses. If the

connections are made to the incoming side
of the box and the work had not been completed
within the box, the the power should be

cut off and remain cut off until such time

as proper connections had been made or if
for some reason it had to be kept alive
at that incoming end, then the box should

have been covered and sealed so that nobody

could carry out any work on it.

C2Tl 9 /1 /ND	3 1	4/4/89
Bus(2)

Q. You say the power should have been

cut off? A. Yes.

Q. To the top side of the box. At what

point would it be proper to cut the power

off? A. That would be cut off at some point outside the building where it was connected

to the incoming supply.

Q. You mean the incoming supply off the	new -- A. Off the mains.
Q. Off the council street mains? A. Yes.
Q. In a situation such as that, whose decision is it whether to connect power
or to disconnect it? A. That decision rests
solely with the County Council supplying the power.

MASON CJ:  Do those answers relate to the earthing

connection as well?

MR GYLES:  Your Honour, those questions relate to, as

I understand it, all - I see what Your Honour

means.	I have to go back and look at the assumptions
that were being put to him, Your Honour.	I

see that the answer on one view is limited to

work done in the box. If I can just go back

to the previous page.	The assumptions,
Your Honour, start at page 80, line 1.1.	I think

it is correct to say there is no reference to

the particular earthing. The mains, I am

informed, includes the neutral which is effectively

the earth but Mr Osman, at 84, if I can go and

see what he says there - I am not sure I can

answer Your Honour about that.	I will have
that checked.

(Continuing on page 33)

C2T19/2/ND	32	4/4/89
Bus(2)

MR GYLES (continuing):  He took up the matter again,

Your Honour, at page ~9, if I could read

trom page 89, line 10:

In ordinary good practise, if a supply authority technician was

working on the cabinet you see with

the line terminals energised, it

would not be necessary for him to

cover the box if he left the job for

a few minutes -

and then, his answer is this -

There are a number of answers to that

one. If the technician working on the

incoming fuse box was only going to be

absent from his actual task but within

sight of the other persons doing the

work around about the main switch

board and there had been some verbal

notification given, that is one set of

circumstances. If the technician

working on the fuse box had gone away
from the work site, the practise is to
warn various people. There is also

provision of tags indicating that there were live terminals, and the other answer to that is that in the

event of the site being vacated by the

tradesman for some time, it would be

prudent, in addition to warning and

tags, to cover the terminals, and the

other part of that is that if this supply

had been interupted outside the building

so that the incoming terminals were not

live, then that puts another set of

circumstances altogether.

Q. That would take away the whole

assumption that I have put. A.	Yes.
HIS HONOUR:	Q.	Your last answer relates

only to the assumption concerning the

incoming lines being live? A. Yes,

Your Honour.

So that Mr Osman, as it were, maintains his

position that the best answer is to cut off

supply and he returns to that, Your Honours, at

page 90 in re-examination:

In relation to the live input terminals

on the service box, do you see any

advantage to anybody in having those in

fact live whilst any work is being done

in proximity to the service box at all? -

Mr Justice Jacobs did inte:i.d to state the dutj

more narrowly then this Court should take the

opportunity to say that that was not a part of
ratio decidendi DELL'ORO and should not continue

to confus~ courts lower in the hierarchy.

Your Honours, that leaves, I think, for reply, the

issue my learned friend has raised about whether
the alternative way of putting the argument was

a live issue at the Court of Appeal level.

Now, Your Honours will appreciate that it was

certainly pleaded expressly, in~eed, it was the very

first, I think real particular of negligence in the

case, in the pleading, at page 2 of the appeal book.

Evidence was assiduously led from every witness

on the point; it was certainly an issue before

the trial judge. We know that Mr Justice Hope

refers to the argument, although in a way which,

we submit, is unsatisfactory. My learned junior

was at the trial - at the appeaL He cannot recall

precisely what was put. Mr Kenny put the argument.

The matter went for a couple of days and I have never

known Mr Kenny to abandon an argument yet. But

my learned junior certainly does not recall any
matter being abandoned by his leader and the grounds

of appeal were apt to cover it and the grounds of

appeal here are apt to cover it.

(Continued on page 109)

C2T65/l/MB	108	4/4/89
Bus(2)

MR GYLES (continuing) It is correct that, on the leave

application, my learned friend, Mr Meagher, did not

advance this particular point but, Your Honours,

the point of the special leave application was to

demonstrate there was a DELL'ORO question and that

was best illustrated by going to the judgnents of the Court of

Appeal that dealt with it. We su1:mit that tmconditional

leave was granted; it is not a case in which there

would now imposed any limitation upon a full appeal.

The way in which the accident happened and the

circumstances of the day in connection with

reconnection of electricity are virtually

uncontroversial - they were certainly dealt with

by the trial judge.

The Court ca.nnot dispose of the appeal at all

without looking to the circumstances of the accident
and there is no disadvantage in having, in my
submission, a full appeal. And is not my learned

friend in somewhat of a dilemma on this argument? I mean, either he says this is really just a pure

question of giving the High Court the chance to say

whether DELL'ORO has the effect that has been

propounded for it and you should not trouble about

the facts of the case particularly. Now, the

difficulty about that is that if we succeed in

showing that DELL'ORO has been misread or does

provide no barrier, as a matter of law, then he is

faced with the fact that the Court of Appeal either

unanimously, or probably unanimously, certainly

two in favour, would have found our way.

DAWSON J:  What do we do with that?

MR GYLES: Well, Your Honours, if he was to limit the appeal

so narrowly, then this Court should simply say there

was no barrier to the Court of Appeal giving effect

to their own view and they should give effect to

their own view.

DAWSON J:	The only alternative is to - if facts are at large.
MR GYLES:	That is right.  So we say he is on the horns of a dilemma
and we do not mind, in a sense, which way the Court
approaches it. If Your Honours please.
MASON CJ:	Thank you, Mr Gyles.  The Court will consider its
decision in this matter.

AT 3.55 PM THE MATTER WAS ADJOURNED SINE DIE

C2T66/l/VH	109	4/4/89
Bus(2)