D&v Services Pty Ltd v SA Power Networks

[2018] SASCFC 92

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

D&V SERVICES PTY LTD v SA POWER NETWORKS

[2018] SASCFC 92

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Lovell)

4 September 2018

TORTS - NEGLIGENCE - DANGEROUS AND INJURIOUS THINGS, ETC - BREACH OF DUTY OF CARE

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - DANGEROUS THINGS OR SUBSTANCES

While performing excavation works an employee of the appellant company unearthed and damaged a high voltage cable owned by the respondent. The appellant was aware from a plan it obtained of the existence of the cable. It was accepted that the appellant ought to have known that the plan was "indicative" only as to the location of the cable. The appellant argued reasonable precautions were taken to avoid damaging the cable. Whether the appellant properly identified the foreseeable risk - whether reasonable precautions were taken.

Held, dismissing the appeal: Appellant failed to take reasonable precautions, and was in breach of its duty of care to the respondent; appellant liable in negligence.

Civil Liability Act 1936 (SA) ss 31, 32, referred to.
Wyong Shire Council v Shirt (1980) 146 CLR 40; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330, applied.
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Shaw v Thomas [2010] NSWCA 169; Vairy v Wyong Shire Council (2005) 223 CLR 422, discussed.

D&V SERVICES PTY LTD v SA POWER NETWORKS
[2018] SASCFC 92

Full Court:      Kourakis CJ, Kelly and Lovell JJ

1. KOURAKIS CJ:    I would dismiss the appeal for the reasons given by Lovell J and the brief additional reasons which follow.

2. The appellant’s concession that its director and operational manager, Mr Turic, ought to have known that the disclaimer accompanying the plan showing the location of the cable warned that the plan was indicative only, and that the cable should be precisely located if it were proposed to excavate within 5 metres of that line, is determinative of this appeal.

3. The disclaimer, in effect, warned that the plan’s margin of error was a radius of 5 metres from every point on the line marking the cable.  The digging undertaken by the appellant was, on Mr Turic’s own evidence, within 3.2 metres of that line.  Plainly then there was a significant risk that the excavation would damage the cable.  Moreover, the cable was, in fact, located within 5 metres of the line marking its location. 

4. The contractual, proprietary or statutory basis on which the requirements set out in the document headed NICC‑404 are founded was not made clear by the evidence.  However, for the reasons given by Lovell J, it is implicit in its terms that those requirements applied to cases in which the cable had been precisely located.

5. Be that as it may, the document does not in any way revoke or amend the effect of the disclaimer of which the appellant concedes it should have been aware.

6. KELLY J: I agree the appeal should be dismissed for the reasons given by Lovell J.

   LOVELL J:

   Background

7. On 9 March 2011, Mr Dawson, while excavating a trench, disturbed a buried 11,000 volt cable (11kV) belonging to the respondent, SA Power Networks. Mr Dawson was an employee of the appellant, D & V Services Pty Ltd. Mr Dawson had not been told of the possible presence of the 11kV cable.  The movement of the 11kV cable caused a nearby earth leakage detector to trip causing significant damage to the respondent’s equipment. The cost to repair the cable and equipment was $219,474.00.

8. The respondent sued the appellant in negligence for the cost of repair. The appellant denied it had been negligent. The Trial Judge found the appellant breached its duty of care and was therefore liable in negligence. The Judge awarded the respondent the sum of $219,474.40 plus interest.

9. The appellant did not dispute that it owed the plaintiff a duty of care in the circumstances. The appellant challenges the finding of the Judge that it breached its duty of care.

   Factual background

10. Before turning to the legal principles involved in this matter, it is necessary to outline the factual background.

11. The appellant was a subcontractor engaged to demolish and remove buildings and debris. The project involved returning the land at Edinburgh to a “greenfields” state. The appellant tendered for and was awarded the contract to perform the demolition and remediation work. The contract price was in excess of $500,000.  Mr Turic, a director of the appellant, was involved in the tender process. Mr Turic was also the project manager. Part of the works to be performed was the removal of buried water pipes. Spotless, the principal contractor, supplied Mr Turic with a plan of the works to be performed; the plan indicated the pipes that needed removal but not the presence of underground cables.

12. Mr Dawson, an employee of the appellant, had been involved in removing water pipes in the area for some weeks prior to 9 March 2011. On 9 March 2011, Mr Dawson excavated a trench along a section of land near Taranaki Road to uncover and remove water pipes. When digging the trench, Mr Dawson used a bucket on the excavator approximately 1.2 metres wide.

13. Mr Dawson operated the excavator under the instructions of Mr Turic. During the trenching operation, the “bucket” of the excavator disturbed the respondent’s 11kV cable causing significant damage. Had Mr Dawson cut the 11kV cable, the consequences for him may have been very serious.

14. The appellant’s contract with Spotless required the appellant to obtain a “Dial Before You Dig” plan (“DBYD plan”).  Mr Lukosius, an employee of the respondent, gave evidence about the Dial Before You Dig service and how the respondent dealt with requests.

15. Dial Before You Dig is a national service available to contractors generally; it assists in locating underground services such as power cables, telephone lines or gas lines. To locate such underground services, a contractor contacts the service which then passes the request onto the relevant authority such as the respondent. The authority then sends to the contractor a plan showing its services in the area along with other relevant information.

16. Mr Lukosius stated that upon receipt of a request from the Dial Before You Dig service, the respondent, which handles up to 10,000 enquiries in a busy month, would send a plan direct to the contractor showing the location of their infrastructure. The plan is sent with a “disclaimer and a header sheet” to the contractor seeking the information.

17. Mr Turic did not contact the Dial Before You Dig service. However, he obtained a copy of the DBYD plan of the area from another contractor onsite. Mr Turic did not obtain a copy of the “disclaimer and a header sheet” sent with the plan. The disclaimer and header sheet advised that the plan, as to the location and depth of cables, was indicative only. A copy of the “pro forma” disclaimer was tendered. It stated that the “data contained in the attached plan is indicative only as to cable location and cable depth”. Further, the disclaimer recommended that if a contractor intended to dig within 5 metres of the location of a high voltage cable, they should use the respondent or another professional service to locate the cable accurately.

18. Mr Turic stated in evidence that he did not know that the plan was indicative only. The Judge accepted his evidence and this finding was not challenged. How Mr Turic came into possession of the plan is not relevant as the appellant conceded (and as found by the Trial Judge) that, due to his position as project manager, Mr Turic ought to have known that the plan was indicative only.

19. Mr Turic gave evidence about the steps he undertook to establish the accuracy of the plan that he had obtained. He stated:

    ·he obtained his copy of the plan from an employee of Australasian Constructions who was a subcontractor. The plan was dated 30 November 2010 and was said to be a scale of 1 centimetres: 18 metres;

    ·he took all his measurements from this plan;

    ·he took steps onsite to confirm that the scale of the plan was correct and that the external features shown on the plan were accurately recorded;

    ·he worked from a line on the plan he described as the “fence line” (boundary line). On the plan, the fence line (boundary line) did not extend to or past the eventual excavation site. He marked an “extended” fence line on the plan himself by using a ruler and pencil;

    ·he took the red line on the plan as indicating the presence of the 11kV cable;

    ·the fire service water pipe was indicated by the presence of “up stands” (vertical pipes coming from the main);

    ·having regard to the scale on the drawing, he concluded that the 11kV cable was 5.4 metres from the “fence line”. He assumed that the boundary line shown on the plan was in fact the fence line;

    ·he did not tell Mr Dawson, the excavator operator, of the presence of the HV cable. He said that “I didn’t have to. I didn’t think it was a problem… I knew it was a safe distance away”; and

    ·he considered the “rule of thumb” for digging was a distance of 3 metres from an 11kV cable. He said that if he was not sure that it was 3 metres or greater he would “check”.

20. The trial judge accepted his evidence as to the steps he undertook. The tasks undertaken by Mr Turic only established the accuracy of the plan as to above ground objects. It told him nothing about the location of the underground cable.

21. By assuming the accuracy of the plan, Mr Turic considered the cable to be approximately 5.4 metres south of the fence line. Mr Turic calculated the measurement of 5.4 metres by assuming the accuracy of the extended fence line he had drawn on the plan. Using a scale ruler, Mr Turic measured the distance from the extended line to the position of the 11kV cable marked on the plan as 3 millimetres. As the scale of the plan was 1 centimetre: 18 metres, 3 millimetres represented 5.4 metres. While the fence line was, on his calculations, 5.4 metres from the cable the northern edge of the trench that was actually dug was approximately 1 m from the fence line. The bucket on the excavator was 1.2 metres wide. The southern edge of the trench, on Mr Turic’s calculations was therefore approximately 3.2 metres from where the cable was marked on the plan. It was this calculation that Mr Turic used to conclude that it was safe to dig. The trench dug was well within 5 metres of the cable as marked.

22. Documents tendered at trial established that anyone undertaking civil works within 3 metres of an 11kV cable had to seek written authority from the relevant officer of the respondent. I refer to this document in detail later in these reasons. It is likely Mr Turic was referring to this requirement when talking about his “rule of thumb”.

23. Mr Lukosius, employed by the respondent as an “asset locator”, gave evidence that the actual location of a cable could be established in advance of any excavation. A contractor could request that the respondent locate the precise position of the cable using a “cable locating” machine. Private operators could also perform that job.  He also referred to the process of “potholing” to verify the position of the cable. Further, additional technical drawings could be supplied if requested. The respondent charged for all their “on-site work”. It was described as a “standard callout fee”. If appropriate notice was not given, a minimum three hour callout fee applied.

24. The Trial Judge also found the photographs tendered established the northern edge of the trench as being approximately 1 metre from the fence line. He also found the bucket on the excavator was 1.2 metres wide.

    Discussion

25. While the Trial Judge accepted the evidence of Mr Turic, he was critical of it in a number of respects. The Trial Judge noted the boundary line indicated on the plan did not necessarily represent the fence line. Mr Turic should not have made that assumption.

26. The Judge did not accept the line drawn by Mr Turic was necessarily accurate or “fine enough to allow an accurate measurement”. As a 1 millimetre line represented 1.8 metres in length, the possibility of further error arose.

27. More importantly, the Judge found that a reasonable person in the position of Mr Turic ought to have been aware that the plan he used was “indicative only”; it could not be relied upon as being perfectly accurate.[1] The appellant on appeal conceded that Mr Turic ought to have been aware the plan was indicative.

    [1]    SA Power Networks v D&V Services [2017] SADC 68 [15].

    Legal Principles

28. The appellant accepted it owed the respondent a duty of care. A duty of care is not owed “in the abstract”.[2] It involves a particular and “defined legal obligation arising out of a relationship between an ascertained defendant and an ascertained plaintiff”.[3]  A duty of care is an obligation of a particular scope which may be more or less expansive depending on the particular relationship. Different classes of case give rise to different problems in determining the existence and nature or scope of a duty of care.[4]

    [2]    Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330.

    [3] Ibid 345 [43].

    [4]    Sullivan v Moody (2001) 207 CLR 562, 579 [50].

29. As McHugh J observed in Graham Barclay Oysters Pty Ltd v Ryan:[5]

    The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer. To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred). If the duty is formulated in specific terms, the issue on breach is whether the duty has been performed in accordance with the terms of the duty as formulated. But, as Wyong Shire Council v Shirt shows, the question of breach is far more complex than an affirmative or negative answer to the question whether the defendant carried out the duty as formulated. It involves evaluating and weighing a number of competing considerations.[6]

    [5] (2002) 211 CLR 540.

    [6] Ibid 585 [106] (citations omitted).

30. Counsel for the appellant, at trial, accepted that the appellant “owed a duty to the respondent to exercise reasonable care not to cause damage to its underground cable”. Given the nature of the particular relationship between the appellant and the respondent, this was an appropriate articulation of the duty of care. The duty of care is to be discharged by the exercise of reasonable care. It did not impose a more stringent or onerous burden. Whether the appellant exercised reasonable care was the issue at trial and on appeal.

31. Actions in negligence in South Australia are governed, in part at least, by the Civil Liability Act 1936 (SA) (the Act). For the purposes of this case, s 31 and s 32 of the Act are relevant.

32. Section 31(1) prescribes the relevant standard of care:

    31—Standard of care

    (1) For determining whether a person (the "defendant") was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.

33. Section 32 prescribes the extent of the duty to take precautions against a risk of harm:

    32—Precautions against risk

    (1) A person is not negligent in failing to take precautions against a risk of harm unless—

    (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

    (b) the risk was not insignificant; and

    (c)in the circumstances, a reasonable person in the person's position would have taken those precautions.

    (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

    (a) the probability that the harm would occur if precautions were not taken;

    (b) the likely seriousness of the harm;

    (c) the burden of taking precautions to avoid the risk of harm;

    (d) the social utility of the activity that creates the risk of harm.

34. Section 32 of the Act codifies what is known as the “Shirt calculus”. In Wyong Shire Council v Shirt,[7] Mason J stated:

    A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

    In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

    The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.[8]

    [7] (1980) 146 CLR 40.

    [8] Ibid 47-48.

35. The sections of the Act mentioned generally reflect the common law. However, foreseeability has a specific definition, namely, what a person knows or ought to have known. Further, the not “far-fetched or fanciful” test has been replaced by a test that a risk be “not insignificant”.  In Shaw v Thomas,[9] Macfarlan JA (Beazley and Tobias JJA agreeing), when dealing with the identical provision in the Civil Liability Act 2002 (NSW) observed:

    Under the general law relating to the tort of negligence it is well established that it is unnecessary “for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable” (See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120 – 121; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [64]). Nothing in the Act dictates any different approach when considering the requirement of s 5B(1)(b) that the risk be “not insignificant” (compare Doubleday v Kelly [2005] NSWCA 151 at [11]; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [42] – [43]).

    In Wyong Shire Council v Shirt, Mason J referred to a risk “which is not far-fetched or fanciful” as being “real and therefore foreseeable” (at 48). The requirement in s 5B(1)(b) that the risk be “not insignificant” imposes a more demanding standard but in my view not by very much.[10]

    [9] [2010] NSWCA 169.

    [10] Ibid [43].

1. I accept that the statutory test is more demanding, but not by much.

2. The approach to be adopted by courts in a negligence case was discussed by Gummow J in Roads and Traffic Authority of NSW v Dederer.[11] Gummow J stated:

   First, the proper resolution of an action in negligence depends upon the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt.[12]

   [11] (2007) 234 CLR 330.

   [12] Ibid 337-338.

3. While duties of care may vary in scope, it is fundamental that they are all to be discharged by the exercise of reasonable care.[13] A court must keep in mind that an obligation to exercise reasonable care is not an obligation to prevent harm occurring to others.

   [13] Ibid 347.

4. In determining the question of breach of duty, it is important to identify the risk of harm to which s 32(1) refers. The risk must be foreseeable (s 32(1)(a)) and not insignificant (s 32(1)(b)). It is only after the correct identification of the actual risk that a court can determine what a reasonable response to that risk would be (s 32(2)).

5. The appellant submitted Mr Turic had taken steps to ensure the plan was to scale. He did so by attending the site and making various measurements of those objects marked on the plan and being above ground.  Having determined the plan was to scale, and having satisfied himself that the cable was more than 3 metres from the proposed trench, the identified risk was whether Mr Turic could reasonably expect the cable to be approximately 4-5 metres from where the plan indicated.

6. I do not accept that submission; it mischaracterises the risk. It assumes that Mr Turic was entitled to rely on the location of the cable as marked on the plan.

7. The starting position for the identification of the risk, is what Mr Turic knew or ought to have known. It was conceded on appeal that Mr Turic ought to have known that the plan was indicative only as to the location of the cable. From that starting point, the relevant risk for which reasonable precautions were to be taken can be articulated as follows: knowing the cable may not be located where marked on the plan, was there a risk that digging in this particular area might result in damage to the respondent’s cable. If so was the foreseeable risk “not insignificant”.

8. Mr Turic was not entitled to assume that the plan was accurate; he was not entitled to be certain where the cable was located. By conducting the exercise of “confirming” that the plan was to scale and therefore “accurate”, his confidence that the excavation was occurring more than 3 metres from the cable increased. That confidence was misplaced.

9. The risk of harm arises here because Mr Turic could not, and was not entitled to, be certain where the cable was located. Thus, the identifiable risk of harm was digging in this area when the actual location of the cable was not known. On his own measurements, the southern edge of the excavated trench was close to 3 metres from where he assumed the cable was located. He could not rely on the position of the cable and clearly risked digging within 3 metres of the cable. Such a risk of harm was in my view clearly foreseeable and not insignificant.

10. The question then becomes what would be a reasonable response to that identified risk. This question is to be answered by considering the (non-exhaustive) factors set out in s 32(a)-(d). Whether reasonable care was exercised in any particular case is a question of fact going to the breach of duty not to the existence of the duty.[14] The inquiry into breach involves a court identifying with some precision “what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk”.[15]

    [14] Ibid 353 [65] (Gummow J).

    [15]   Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 611-612 [192].

11. The inquiry into breach must be conducted prospectively. That is, after the event, the court must determine what the reasonable person would have done to avoid what is known to have occurred. As Hayne J in Vairy v Wyong Shire Council observed:

    Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about.  In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured.  The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty.  In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries.  The inquiry into the causes of an accident is wholly retrospective.  It seeks to identify what happened and why.  The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk.  And one of the possible answers to that inquiry must be "nothing".[16]

    [16] (2005) 223 CLR 422, 461 [124].

12. The possibility of a different result is not the issue and does not represent the proper test for negligence.  That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care.[17]

    [17]   Derrick v Cheung (2001) 181 ALR 301.

13. In determining the question of breach, a court must conduct a balancing exercise of the factors referred to in s 32(2). The answer given in any particular case depends upon the facts as they are proved in evidence.[18]

    [18]   Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 440 [40].

    Grounds of Appeal

14. The appellant alleged that;

    1. The learned trial judge erred in finding that Mr Turic regarded the HV cable as marked on the “Dial Before You Dig” plan (“the plan”) as perfectly accurate when that was not Mr Turic’s evidence.

    2. The learned trial judge erred in that:

    (a) he impliedly found that the excavation was beyond 3m of the HV cable as marked on the plan; or

    (b) he failed to find that the excavation was within 3m of the HV cable, as marked on the plan; and

    accordingly, no additional precautions were required of the appellant or no additional precautions were required of the appellant in accordance with industry practice.

    3. By reason of the matters set out in Grounds 1 and 2, the learned trial judge erred in finding that a reasonable person would have realised that there was a substantial risk that the excavator was working within 3m of the HV cable (as marked on the plan).

    4. The learned trial judge erred in finding that a reasonable person would have foreseen that there was a significant risk that the cable would be damaged when:

    (a) there is no finding as to the location of the HV cable, as marked on the plan, relative to where the excavation was to occur save as set out in Ground 2

    (b) there is no finding that Mr Turic was wrong in his belief regarding the location of the HV cable, or that there was a reasonable basis for him to question his belief.

    5. By reason of the matters set out in Grounds (1) to (4), the learned trial judge erred in finding that a reasonable person in Mr Turic’s position would have taken further precautions “to ensure that he knew precisely where the cable was before he directed Mr Dawson to commence excavating”.

    6. The learned trial judge erred in law by elevating the scope of the duty owed by the appellant to the respondent from an obligation to exercise reasonable care to a duty to prevent possible harm.

    7. Further to Grounds (1) to (6) above, the learned trial judge erred in finding that a reasonable person would have taken the precautions identified in his Reasons (16) where:

    (a) the respondent did not advance a case at trial, and the learned judge did not find, that warning Mr Dawson of the “possible presence” of the cable would probably have prevented the incident;

    (b) the use of a contractor to locate the cable, or to notify the respondent of the excavation, or to request an on-site inspection was only required by the respondent when undertaking digging within 3 m zone; and

    (c) manual excavation was only required by the respondent when undertaking digging within 1 m of underground cabling as marked on the plan.

    Discussion

15. The grounds of appeal are based on the appellant’s incorrect identification of the risk. It is a fatal flaw in relation to all grounds of appeal and the appeal must fail. My reasons follow.

    Grounds 1-5

16. The appellant submitted that grounds 1-5 of the appeal were all interrelated and were substantially based on the failure of the Judge to make two particular factual findings.

17. It was submitted that the Judge:

    1. Did not make a finding about the actual location of the HV cable by reference to where it was indicated on the DBYD Plan.

    2. Did not make a finding that the excavation by the appellant was to be within three metres of the 11kV cable as indicated by reference to the DBYD Plan.

18. In my view, it was not necessary for the Trial Judge to make either finding.

19. The appellant submitted that there was no evidence available to Mr Turic that identified the true location of the 11kV cable by reference to the plan (as distinct from where the plan erroneously indicated the cable to be). The appellant submitted the Trial Judge ignored the lack of evidence when making his findings. Absent that evidence, it was submitted the respondent could not prove, and, the Judge could not find, a “reasonable person would have realised that there was a substantial risk that the excavator was working within three metres of the HV cable”.[19]

    [19]   SA Power Networks v D&V Services Pty Ltd [2017] SADC 68, 72 [15].

20. The appellant relied on the respondent’s own requirements as set out in NICC-404 of January 2007 which relevantly stated:

    1. Any party intending to undertake civil works to a depth of more than 0.3m within 3.0m of underground assets or associated equipment must seek written authority from the relevant ETSA[20] Utilities Manager.

    2. Any party will not commence work in and around buried cables until those cables have been located through the “Dial Before You Dig” (DBYD) process.

    3. No mechanical, hydraulic or air pressure operated tools or machines are permitted to excavate deeper than 0.3 m within 1.0 m of the underground cables (as marked by the DBYD), transformers, or any other ETSA Utilities equipment associated with the underground network.

    4. Within 1.0m of assets described in clause 3 above only manual hand digging is permitted.

    5. Within 1.0m of cables of less than 66,000 volts, automatic reclose protection must be de-activated by ETSA Utilities.

    [20]   Now SA Power Networks.

21. The appellant submitted the respondent itself stipulated these requirements for contractors working near electrical infrastructure including underground HV cables. The requirements were subject to the voltage of the cable and the distance between the cable and the work to be undertaken.

22. For an 11kV cable, no restrictions existed when working beyond a zone of 3 metres from the identified location of the electrical cable as marked on a DBYD plan. The appellant accepted that restrictions applied when working within 3 metres of the HV cable.

23. Mr Turic, the appellant submitted, did all that was required of him. He obtained the plan, made an assessment that the plan was accurate and determined that, according to the plan, there was no need to obtain any clearance from the respondent or to take any further precautions before excavating the water pipes. The appellant submitted that the evidence demonstrated that the actual location of the cable was approximately 4.5 metres north of where it was indicated to be on the plan. Viewed prospectively, Mr Turic had taken sufficient precautions to ensure that the excavation occurred outside of the 3 metre zone from where the cable was indicated on the plan. That is, additional precautions were only required if digging was to occur within 3 metres of where the cable was marked on the plan.

24. In my view, it was not necessary for the Trial Judge to make the findings suggested by the appellant. The appellant’s submission that these findings were necessary is based on the incorrect characterisation of the “foreseeable risk of harm” identified earlier in these reasons. That is a fatal flaw in relation to grounds 1-5. Further, it is based on an erroneous interpretation of the respondent’s requirements.

25. The disclaimer notice, which Mr Turic did not obtain, recommended that if a contractor intended to dig within 5 metres of the location of a high voltage cable indicated on the plan, the cable should be precisely located.  On Mr Turic’s evidence, Mr Dawson was excavating a trench within 5 metres of where the cable was indicated on the plan. The relevant documentation referred to by the appellant in its submission assumes that the cable has been accurately located. That is, the 3 metre zone where written authority is required encompasses the area around where the cable is actually located, not where it is indicated on the plan. The same logic applies to the 5 metre zone.

26. I accept that the disclaimer notice only recommends that a contractor accurately locate the cable. It was not a requirement. However, Mr Turic ought to have known that the plan was indicative only and that the recommendation from the respondent was, if there was an intention to dig within 5 metres of the location of an 11kV cable indicated on the DBYD plan, the cable needed to be accurately located.

27. Irrespective of the recommendation, the evidence of Mr Turic was that the fence line was 5.4 metres south from the location of the cable as depicted on the plan. Given the northern edge of the trench was approximately 1 metre from the fence line and the bucket of excavator was 1.2 metres wide, the southern edge of the trench was close to 3 metres from where the cable was indicated on the plan. These measurements gave Mr Turic confidence. Given the plan was indicative, these measurements should not have given Mr Turic any confidence.

28. Once it is accepted that Mr Turic ought to have known that the plan was indicative only, there was simply no basis for Mr Turic to assume that the cable was located as marked. He was not entitled to assume that the 3 metre zone commenced from the cable as indicated on the plan. The evidence clearly established that the cable was located in the trench excavated by Mr Dawson and the southern edge of the trench was approximately 1 metre from the fence. The cable was within 5 metres of where stated on the plan. The finding of the Trial Judge required no greater specificity.

29. The importance, as discussed earlier, of correctly identifying the “foreseeable risk” is highlighted by the submissions of the appellant. The submissions of the appellant fail to recognise that Mr Turic ought to have known that the plan was indicative only as to the location of the 11kV cable. He could not assume he was digging outside the 3 metre zone. Self evidently, assuming in those circumstances that the plan accurately showed the location of the cable was an error.

30. The appellant submitted that identifying the risk as “digging in the vicinity when the actual location of the cable is unknown” is to impose an obligation on a contractor to always locate a cable accurately. I do not accept that submission. Clearly if the trenching was to occur 150 metres from the location of a cable as marked on the plan, the risk of damage to the cable would be insignificant. Breach of duty could not be established. The question of foreseeability is decided upon the facts of the case. Here the trenching was to occur within 5 metres, indeed possibly closer, to the indicated position of the cable. On these facts, foreseeability of risk was established and the risk was not insignificant.

31. Leaving aside the question of what Mr Turic ought to have known about the nature of the plan, the Trial Judge made findings as to the possibility of error using Mr Turic’s own calculations. Although the Trial Judge accepted Mr Turic’s evidence about what he did to satisfy himself the plan was to scale, the actual plan he used was not produced. If he was 1 millimetre out with his marking on the plan as to the extended fence line, it would create a margin of error of 1.8 metres. The Trial Judge made the finding of the possibility of error. Such a finding was open on the evidence.

32. The Trial Judge was required to decide what a reasonable person in the position of Mr Turic would do by way of response to the reasonably foreseeable and not insignificant risk.

33. Turning to grounds 1, 2, 3, 4 and 5 of the appeal, these grounds are based on the incorrect premise about the accuracy of the plan. It was not necessary for the Trial Judge to make the findings suggested. No error has been identified in the approach of the Trial Judge. I would dismiss grounds 1-5.

    Ground 6

34. The appellant submitted that the Judge elevated the duty from one of exercising reasonable care in undertaking the dig to a duty to take precautions not to damage the cable.

35. Again this assumes the incorrect identification of risk discussed earlier in these reasons. As already discussed, if the trench was to be excavated at a distance, for example, 150 metres from where the cable was marked on the plan, any risk would be insignificant. Even though the duty remained the same, no further precautions would need to be taken. It is only because the trench was being excavated in this particular location that a not insignificant foreseeable risk arose. The Trial Judge identified the risk and applied the criteria set out in s 32(2) of the Act. No error has been shown.

36. It was submitted that the Judge assessed the question of breach retrospectively (by reference to where the damaged cable was actually located near the fence) and not prospectively, (by reference to the information he had or ought to have had before the dig commenced; namely the plan). For the same reasons, I would reject this submission.

37. The Trial Judge assessed the question of breach prospectively and from the correct starting point of what Mr Turic ought to have known. No error has been demonstrated.

38. I would dismiss ground 6.

    Ground 7

39. Ground 7 is directed to the “reasonable precautions” that ought to have been taken by Mr Turic.

40. Mr Turic stated that, having undertaken the exercise of ensuring the “accuracy” of the plan, he considered there was nothing further he needed to do as “there was no risk at all”. He knew it “was far enough away from the fire main”. Mr Turic said that he didn’t tell Mr Dawson about the cable nearby as “I didn’t have to. I didn’t think it was a problem” as he “knew it was a safe distance away”. As discussed, he was not entitled to make those assumptions.

41. Mr Turic, when cross examined, accepted that if he was working 3 metres from a high voltage cable he would “make sure there was a spotter and check exactly where it was”.

42. The appellant submitted that the evidence did not permit a finding that the excavation was intended to be within 3 metres of the HV cable as marked on the plan. It submitted that the Judge erred in concluding that a reasonable person in the position of the appellant should and would have taken the further precautions identified.

1. This submission again assumes that Mr Turic was entitled to rely on the “accuracy” of the plan. For the reasons already discussed, he was not entitled to rely on the plan as to the actual position of the cable. The Trial Judge made a specific finding that he could not rely upon the plan as being “perfectly accurate”. He was correct in doing so. The Judge found that a reasonable person in Mr Turic’s position would have realised that there was a “substantial risk that the excavator was working within three metres of the HV cable”. Again the Judge was correct in so finding. It was against that background that the Judge turned to the question of whether Mr Turic took reasonable care.

2. The Trial Judge found:

   A reasonable person would have realised that there was a substantial risk that the excavator was working within three metres of the HV cable. A reasonable person would have foreseen a significant risk that the cable would be damaged, and that harm might result.

   I consider that a reasonable person in Mr Turic’s position would have taken further precautions to ensure that he knew precisely where the cable was before he directed Mr Dawson to commence excavating. Those precautions would have included:

   ·       warning Mr Dawson of the possible presence of the cable;

   ·       engaging a contractor to locate the cable, either by using an ultrasound scanner, or by use of the technique known as ‘pot-holing’ (moistening the soil and using a strong vacuum to excavate over the cable);

   ·       notifying the plaintiff and requesting an on-site inspection and location of the cable; and

   ·       after locating the cable, manual excavation using a special blunt-nosed shovel to expose the cable.

   None of these precautions would have placed a heavy burden on the defendant, particularly in proportion to the seriousness of the harm which might have resulted from a breach of the cable.

   For those reasons, I conclude that the defendant was in breach of its duty of care to the plaintiff to take reasonable precautions against damaging its cable. It is therefore liable in negligence to the plaintiff.[21]

   [21]   SA Power Networks v D&V Services Pty Ltd [2017] SADC 68, 72 [15-16].

3. The evidence established that Mr Turic did not advise Mr Dawson of the possibility that an 11kV cable was in the vicinity.  The trench was dug without Mr Dawson expecting a cable to be there nor did he have the benefit of a “spotter”.[22] Mr Turic agreed that if the cable was within 3 metres, he would have taken the precaution of telling Mr Dawson and having a spotter. He also accepted he would check the location of the cable. It is implicit in his evidence that if he considered the cable may have been within 3 metres of the excavation, it needed to be located precisely before excavation commenced.

   [22]   The evidence established there was another person also assisting with the excavation there but he did not know about the possible presence of the cable.

4. The Judge’s findings on breach were predicated upon what Mr Turic ought to have known about the indicative nature of the plan. The risk of damage to the cable was obvious and the cost to take the reasonable precautions, as the Judge stated, did not place a “heavy burden” on the appellant. Those findings were open to the Trial Judge on the evidence. Indeed, on the evidence, they were inevitable.

5. No error has been demonstrated. I would dismiss ground 7.

   Order

6. Appeal dismissed.