Duval v Pederson
[2003] WADC 197
•12 SEPTEMBER 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DUVAL -v- PEDERSON [2003] WADC 197
CORAM: MARTINO DCJ
HEARD: 28-30 APRIL, 1 & 2 MAY, 30 & 31 JULY 2003
DELIVERED : 12 SEPTEMBER 2003
FILE NO/S: CIV 2515 of 2001
BETWEEN: STEPHEN ANTHONY DUVAL
Plaintiff
AND
GLEN PEDERSON
DefendantWESTERN POWER CORPORATION
First Third PartyCITY OF GOSNELLS
Second Third Party
Catchwords:
Negligence - Personal injuries - Foreseeability - Liability of statutory authorities - Damages - Loss of earning capacity
Legislation:
Electricity Act 1945
Energy Operators (Powers) Act 1979
Local Government Act 1995
Result:
Judgment for plaintiff for $125,103
Defendant's claims against third parties dismissed
Representation:
Counsel:
Plaintiff: Mr I L K Marshall
Defendant: Mr J P T Olivier
First Third Party : Ms F C E Davis
Second Third Party : Mr J Eller
Solicitors:
Plaintiff: Ilberys
Defendant: Talbot & Olivier
First Third Party : Phillips Fox
Second Third Party : John Eller
Case(s) referred to in judgment(s):
Brodie v Singleton Shire Council (2001) 206 CLR 512
Donoghue v Stevenson [1932] AC 562
Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183
Jongen v CSR (1992) A Tort Rep 81‑192
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Newman v Nugent (1995) 12 WAR 119
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
Trigwell v Trigwell (1997) 18 WAR 83
Case(s) also cited:
Bartels v Bankstown City Council [1999] NSWCA 129
Bolton v Stone [1951] 1 All ER 1078
Bomford v Commissioner of Main Roads (2000) 32 MVR 201
Brodie v Singleton Shire Council (2001) 180 ALR 145
City of Rockingham v Curley (2000) 112 LGERA 123
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Edith Cowan University v Czaryko [2002] WASCA 334
Edwards v Noble (1971) 125 CLR 296
Ghantous v Hawkesbury Shire Council (2001) 180 ALR 145
Graham Barclay Oysters Pty Ltd v Ryan (2002) 194 ALR 337
Hackshaw v Shaw (1984) 155 CLR 614
Mallesons Stephen Jaques v Trenorth Ltd [1999] 1 VR 727
March v Stramare (1991) 171 CLR 506
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 176 ALR 411
Ordukaya v Hicks; Library No BC 200003956; 19 July 2000
Pyrenees Shire Council v Day (1998) 192 CLR 330
Richard Evans & Co Ltd v Astley [1911] AC 674
Roads and Traffic Authority of NSW v Jackson [2003] NSWCA 40
Rundle v State Rail Authority of New South (2002) A Tort Rep 81678
Schiller v Mulgrave Shire Council (1972) 129 CLR 116
Stannus v Graham (1994) A Tort Rep 81-293
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449
Webb v The State of South Australia (1982) 56 ALJR 912
Western Australia v Watson [1990] WAR 248
Wyong Shire Council v Shirt (1980) 146 CLR 40
MARTINO DCJ:
Introduction
On 19 June 2001 the plaintiff ("Mr Duval") was at his home at 21 Nardoo Way, Maddington. The defendant ("Mr Pederson") is a self‑employed tree lopper. In 2001 he shredded branches and leaves of street trees pruned by the second third party ("City of Gosnells") using a chipper mounted on a trailer attached to his truck.
Nardoo Way is a cul‑de‑sac within the boundaries of the City of Gosnells. On 19 June 2001 Mr Pederson was shredding branches and leaves that had been pruned and left on the ground beside trees in Nardoo Way by an employee of the City of Gosnells. At the end of Nardoo Way he executed a three‑point turn. While he was reversing his truck and trailer his trailer struck a cable stay wire attached to a power pole at the end of Nardoo Way. This resulted in a timber power pole outside Mr Duval's home breaking and falling onto Mr Duval's metal perimeter fence. Power lines rested on that fence.
Mr Duval suffered an electric shock and was injured when he touched the fence. In this action he claims that his injuries were caused by Mr Pederson's negligence in reversing into the cable stay wire. Mr Pederson admits that his trailer came into contact with the cable stay wire and this caused the collapse of the power pole but denies that he drove negligently and contends that it was not foreseeable that this contact would cause the power pole to fail. He admits that Mr Duval suffered some injuries but denies that he has suffered any loss. Mr Pederson also contends that any injuries or loss suffered by Mr Duval were caused by the negligence of the first third party ("Western Power") and the City of Gosnells.
The accident
Nardoo Way runs in approximately a north‑east direction. The power lines run on the south‑east side of the street. They are supported by timber poles which are approximately 8 metres tall and 48 metres apart. Mr Duval's home is on the south‑east side of the street.
The power lines terminate at a pole located at the end of Nardoo Way. The force on that terminating end pole caused by the tension in the power lines is compensated for by a stay wire that runs from the pole to the ground. The stay wire forms an angle of approximately 60 degrees with the ground. The base of the stay wire is 2.43 metres from the road. There is no footpath on the verge near the stay wire. Near the terminating pole there are two street trees. One is a cape lilac, the other a pepper tree. The pepper tree has a natural weeping habit. At the time of the accident the leaves and branches from that pepper tree fell over the stay wire. The penultimate pole in Nardoo Way is on the street verge near Mr Duval's home.
On the day of the accident Mr Pederson was working in Nardoo Way with the assistance of his employee Ben Oakley. Mr Pederson's truck was 7 metres long. It had 16‑inch wheels. It did not have power steering. Attached to it was the trailer containing the chipper. The trailer had a chute which could be raised or lowered. With the chute raised the end of the trailer was 4 metres from the end of the truck. With the chute lowered the end of the trailer was a further 0.9 metres from the end of the truck. The total distance from the front of the truck to the end of the trailer with the chute lowered was 11.9 metres. The trailer weighed 2.8 tonnes. The truck had a load carrying capacity of 4 tonnes or 5 tonnes. Mr Pederson did not know the weight of the truck but it would have been heavier than the trailer (T369).
Mr Pederson drove his truck to the end of Nardoo Way on the right side of the road. The chipper fed from the right side and Mr Pederson travelled on that side of the road to keep the feeder as close as possible to the cuttings to be shredded.
Mr Pederson stopped his truck so that the trailer was near the cape lilac tree beside the final pole on Nardoo Way. He and Mr Oakley cleaned up the cuttings at the base of the cape lilac tree and placed them in the chipper.
Once that task had been completed Mr Pederson went to the driver's seat of the truck. Mr Oakley sat on the mudguard of the trailer wearing ear muffs. The machine on the chipper continued to run. The end of Nardoo Way was not wide enough to enable Mr Pederson to complete a turn in his truck and so it was necessary for him to make a three‑point turn. This was a manoeuvre that Mr Pederson performed with his truck and trailer quite often, approximately weekly. Mr Pederson drove forward and then commenced to reverse. Before he reversed he checked the mirrors on his truck and looked for Mr Oakley. Mr Pederson's main concern was to avoid striking the terminating power pole. Mr Oakley was sitting on the mudguard of the trailer on the left hand side of the trailer ie. the side on which a passenger would sit in the truck.
Mr Pederson's evidence was:
"I reversed back. The driver's side wheels of the chipper mounted the kerb. I was watching the left‑hand side, that's where my offsider was. When the wheels got to the kerb there I put it in forward gear to pull forward. ... That's when a guy in the end house was sort of yelling out." (T344)
Mr Pederson had pulled forward a few metres by the time that he noticed the person calling out to him from the end of the street and he looked to see why it was that he was calling out. Mr Pederson noticed that a pole and electricity wires were down. Mr Pederson proceeded to where the pole had fallen and saw Mr Duval lying in the driveway. Mr Pederson called an ambulance and contacted Western Power.
When a Western Power employee arrived at the scene Mr Pederson went with the Western Power employee back to where Mr Pederson had been reversing. It was there that he saw the stay wire. Mr Pederson had not previously noticed the stay wire.
Although he had no clear recollection of having looked into the area in which he proposed to reverse his trailer before commencing the manoeuvre Mr Pederson's evidence was that his usual procedure would have been to look in that direction before he entered the truck.
Mr Oakley's evidence was that at the time of the accident he was wearing ear muffs and the machine of the chipper was operating. When Mr Pederson was reversing the driver's side wheels of the trailer climbed the kerb. The passenger's side wheels did not quite make it to the kerb. Mr Pederson then stopped and proceeded to go forward to complete his manoeuvre. Mr Pederson then stopped again. Mr Oakley presumed that Mr Pederson had stopped to enable Mr Oakley to get into the truck to proceed to the next pile of cuttings. They proceeded to drive down Nardoo Way. A young gentleman came out and stood in front of the truck to stop them. Mr Oakley noticed the post lying on the fence outside Mr Duval's home. Like Mr Pederson, Mr Oakley did not notice that there was a stay wire attached to the end pole in Nardoo Way until after the accident had occurred. Both Mr Pederson and Mr Oakley gave evidence that Mr Pederson reversed his truck at a slow speed. Mr Pederson described his speed as being less than walking pace and Mr Oakley described it as being at a crawl pace.
Mr Anthony Guitari lives at 25 Nardoo Way. His house is near the end of the cul‑de‑sac. On the day of the accident he was at the front of his house near the letterbox. His evidence‑in‑chief was that on the day of the accident he saw a truck reverse into a power pole causing that pole to collapse. In cross‑examination by counsel for Mr Pederson Mr Guitari was referred to a written statement he had made in which he had said that the trailer had hit the stay of the power pole. The statement was signed by Mr Guitari but was written for him as he is unable to read or write English well. After having been referred to that statement Mr Guitari's evidence was that the truck hit the stay and then the power pole, bringing the power pole down. In cross‑examination by counsel for the City of Gosnells Mr Guitari's evidence was that the terminating pole almost fell over and that the pole which fell over was the pole outside Mr Duval's home. I conclude that the impact of the dramatic sight of seeing a power pole and electric wires come down resulting in his neighbour suffering electric shock injury has affected Mr Guitari's ability to recall the accident and that he has no clear recollection of what occurred.
On the day of the accident employees of Western Power arrived at the accident scene and looked at the stay wire. Mr Terry McBride, a linesman, noticed a "nick or some sort of impact point" (T408). Mr Darren Clavey, a network response officer, noticed "a bright, shiny mark on it" (T483).
I find that before entering his truck to execute the three‑point turn Mr Pederson looked briefly in the direction in which he was to reverse. He saw the weeping pepper tree but did not check whether anything was behind the weeping branches of the tree. Mr Pederson reversed his truck into that area at slow speed and his trailer struck the stay wire causing the pole outside Mr Duval's home to break.
In my view Mr Pederson was negligent in reversing his truck and trailer into the area of the verge without adequately checking that the area was clear of obstructions and that it was safe to do so.
The pruning on Nardoo Way
The cuttings on Nardoo Way that were being shredded by Mr Pederson had been pruned from street trees shortly beforehand by an employee of the City of Gosnells, Mr Denis McLoughlin, who was employed by the City of Gosnells as a tree pruner.
Mr McLoughlin had not intended to prune the pepper tree, but the resident in the house behind the pepper tree asked him to do so to enable him to park his car on the verge. Another resident on Nardoo Way, probably Mr Guitari, asked Mr McLoughlin not to prune the pepper tree. Mr McLoughlin did something of a compromise: he pruned the pepper tree sufficiently to enable a car to park on the verge, but leaving branches and leaves hanging over the stay wire.
Plastic sheath on the stay wire
The power poles and the stay wire in Nardoo Way were installed in 1982. It is Western Power's practice now and was in 1982 to place a piece of white or pale grey plastic pipe over stay wires that covered the bottom 1‑1/2 metres to 2 metres of the stay wire. The purpose of the pipe is to make the stay wires more visible to people on the verge and to cover sharp wires at the base of the stay wire.
On the day of the accident there was not a plastic sheath on the stay wire which Mr Pederson struck. Mr Clavey has a vague recollection that he noticed some white plastic PVC at the bottom of the stay wire when he inspected it on the day of the accident (T391). Mr Clavey was clearly uncertain about his recollection. He did not make a note of seeing the white PVC at the time. I am not satisfied that Mr Clavey did see white PVC near the base of the stay wire on the day of the accident.
The plastic sheath that Western Power installs on stay wires go missing from time to time. Sometimes they are damaged by children.
I am satisfied that a plastic pipe or marker was placed on the stay wire when it was installed in 1982 and that at some time which it is not possible to identify or estimate it came off the stay wire.
The failure of the pole
As I have noted the pole which fell onto Mr Duval's fence was not the pole to which was attached the stay wire which Mr Pederson struck but the next pole along Nardoo Way. On 31 January 2003 sections of the pole which fell onto Mr Duval's fence were inspected by Professor Geoffrey Boughton. Professor Boughton is a structural engineer who specialises in the study of timber. The pole fractured near its base. The fracture was of a type known as a brash fracture. Brash fractures are not seen often in timber poles. The usual fracture of a timber pole results in a jagged fractured surface with many long splinters on one side and with the fracture surface spread over more than 1 metre of the length of the pole. The fracture of the pole that fell onto the plaintiff's fence was almost perpendicular to the length of the pole. The main causes of brash fractures in wood are advanced rot, compression growth stresses which are usually in the centre of the tree, wood which has been subject to impact and wood which has been subject to substantial compression loads for a very long duration.
There were little signs of rot in the pole and Professor Boughton was of the opinion that rot was not a cause of its failure.
The fracture was not confined to the centre of the pole and Professor Boughton concluded that the failure was not caused by compression growth stresses.
The pole was at a change in direction of the power lines and would have sustained a lateral load due to the tension in the conductors. This action would have induced permanent compression on one side of the pole. As the brash fracture was across the complete cross‑section Professor Boughton concluded that compression load was not a cause of the failure. Professor Boughton concluded that the likely cause of the brash failure of the pole was that prior to the accident it had suffered an impact. Normal methods of inspection would not have detected the weakness in the pole.
Each of Mr Duval and Mr Pederson called expert engineering evidence on the accident. Mr Duval called William Jack Apgar. Mr Pederson called James Van Der Meer.
It is Mr Apgar's opinion that the impact of Mr Pederson's trailer striking the stay wire caused greater horizontal force at the top of the pole outside Mr Duval's home (ie. the pole which failed) than at the top of the pole to which the stay wire was attached (the terminating pole). It is also Mr Apgar's opinion that the horizontal force required to cause the pole outside Mr Duval's home to break was lower than that required at the pole to which the stay wire was attached.
Mr Apgar's conclusions are based on two factors. The first is that the terminating pole received a substantial downward force from the stay wire. This downward force created compressive stresses on the pole. These compressive stresses effectively strengthened the pole making it capable of sustaining higher bending loads.
The second factor is that the power lines at the pole which failed formed an angle of approximately 11 degrees so that the combined forces of the power lines caused the pole to be pulled sideways so that the horizontal force at the top of the pole which failed would be greater than at the top of the terminating pole.
In Mr Apgar's opinion the presence of splits or knotting in the pole may also have been a factor which contributed to its failure.
Mr Van Der Meer prepared three reports. In his first report, dated 12 March 2003, he expressed the opinion that, "From a Structural Engineer's perspective it is difficult to imagine the pole in question failing due to a vehicle impacting the stay on the adjacent pole. This would only be conceivable if the failed pole was significantly weaker than the stayed pole." In his evidence Mr Van Der Meer described this conclusion as based on his intuition.
In his second report, dated 9 April 2003, Mr Van Der Meer expressed the opinion that the stresses caused to the pole which failed by the impact on the stay wire would have been less than the stresses caused to the terminating pole due to the sag in the power lines.
In his report dated 29 April 2003, Mr Van Der Meer reported that a computer analysis showed that the weakest link in the structural system is the cross arms and that they would fail first if the force on the stay were great enough. Once the cross arms are broken it would not be possible to transmit forces to adjacent poles because the structural system would be broken.
In Mr Van Der Meer's opinion, his third report is correct. In making his analysis, Mr Van Der Meer used information obtained from an inspection at the scene and information from Western Power's manuals. The analysis was a static rather than a dynamic analysis, but in Mr Van Der Meer's opinion that does not alter his conclusions.
To make an accurate assessment of the forces created by Mr Pederson's trailer striking the stay wire it would be necessary to make a detailed reconstruction and analysis of the accident. For legitimate reasons of expense both Mr Apgar and Mr Van Der Meer made assumptions in arriving at their conclusions. I prefer the final conclusion of Mr Van Der Meer to that of Mr Apgar because although, like Mr Apgar, Mr Van Der Meer made some assumptions in arriving at his conclusion his analysis was based on more information than that of Mr Apgar.
It is clear from Professor Boughton's evidence that the pole failed at a site at which it had earlier been weakened by an impact. That is unlikely to have been a coincidence. I conclude that if the pole had not been weakened by the earlier impact the most likely source of failure of the structure as a result of an impact on a stay wire is somewhere on the pole to which the stay wire was attached. I accept Mr Van Der Meer's evidence that the most likely point of failure on that pole is the cross arms. Failure of the cross arms would cause the power lines to fall to the ground.
Foreseeability
In par 3 of his statement of claim Mr Duval pleads that Mr Pederson reversed "into a cable stay wire causing the collapse of a power pole which, in turn, caused electrical power lines to fall onto the Plaintiff's property and perimeter fence".
Mr Pederson, in par 2 of his defence, admits par 3 of the statement of claim "but says that the trailer attached to the defendant's truck came into contact with the cable stay wire and that it was not a foreseeable consequence of this contact that it would cause a collapse of the power pole":
"In determining whether a defendant should have reasonably foreseen a risk of injury, it is not necessary that the defendant should have foreseen the precise risk of injury or how it occurred. It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen." - Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183 per McHugh J at [87].
It is not necessary therefore for the failure of the pole outside Mr Duval's home to have been a foreseeable consequence of Mr Pederson's trailer striking the stay wire. The issue of foreseeability is whether it was reasonably foreseeable that if Mr Pederson's vehicle struck a stay wire it could cause a failure of the power line structures resulting in power lines falling and so creating a risk of electric shock injury.
I accept the evidence of Professor Boughton that the pole which failed had a defect that could not be detected on any reasonable inspection.
However it is my view that it was reasonably foreseeable that if Mr Pederson reversed his truck in such a manner that the trailer struck a stay wire he could cause failure of the power line structure at some point resulting in power lines falling and creating a risk of electric shock injury to persons in Nardoo Way. If the structures were perfectly sound the cross arms on the terminating pole would have failed causing the power lines to fall to the ground. Quite apart from that conclusion, it was in my view reasonably foreseeable that a pole might have been weakened by an earlier impact and that the force of a heavy truck and trailer striking a nearby stay wire could cause the failure of that pole. I conclude therefore that Mr Pederson is liable for the electric shock injuries suffered by Mr Duval as a result of his negligent driving.
Mr Duval
Mr Duval was born on 24 March 1959. He is married and has three children. The eldest, aged 20, serves in the army. The second is aged 15 and the youngest 13. The youngest child is in Year 9 at high school.
Mr Duval left school at the age of 15. He has no formal vocational qualifications. He has been employed in a variety of occupations including bar work, landscaping, managing supermarkets, running a nursery, lawn mowing and installing reticulation.
In 1988 Mr Duval was employed as a night fill manager at a supermarket. On 25 May 1988 he injured his back when attempting to move a pallet of cool drinks with a pallet jack. The pallet jack released suddenly causing the plaintiff to fall backwards and to strike his back on door handles. As a result of injuries suffered in that accident Mr Duval saw Mr Michael Lee, neurosurgeon. Mr Lee carried out surgery on Mr Duval's back in 1990 and 1991.
Mr Duval's evidence was that following the surgery he made a good recovery which took approximately two years but he continued to suffer some right sciatica. Mr Duval first received a disability pension in 1991.
In 1991 Mr Duval commenced action in this Court against his employer at the time of the accident on 25 May 1988.
In that action Mr Duval claimed that as a result of the injury to his back on 25 May 1988 he suffered from severe low back pain, severe sciatica in the right leg, limitation of lumbar movement, loss of lumbar lordosis, marked restriction of straight leg raising on the right and bouts of insomnia, depression and irritability. Mr Duval claimed that the injuries suffered in 1988 rendered him unfit for work as a night fill manager and that he was "not an economically employable proposition to any prospective employer in respect of any retained work capacity he may have".
Mr Duval obtained a judgment by consent against the defendant in that action on 13 November 1992. That judgment was for $125,000 "exclusive of any repayment to the Department of Social Security and Medicare", special damages of $8,543.60 and costs.
Mr Duval's general medical practitioner since 1994 has been Dr Kanwal Singh and since that time Mr Duval has seen either Dr Singh or a practitioner from Dr Singh's practice for a variety of problems concerning his health. Dr Singh gave evidence of the contents of his medical practice's file on Mr Duval. In April 1991 Mr Duval was admitted to Queen Elizabeth II Medical Centre where he remained as an inpatient for 11 days for left buttock and left leg pain and weakness. On 11 March 1994 Mr Duval consulted his general practitioner for a sudden onset of pain in the left loin. That appears to have been caused by renal colic. The pain eased quickly.
Mr Duval suffers asthma for which he has required treatment from time to time. In 1991 he suffered an acute episode which required admission to Royal Perth Hospital. Mr Duval has required ongoing advice and treatment for his asthma but has not required further admission to hospital.
On 15 December 1994 Mr Duval consulted his general practitioner for a panic attack in which he thought he was going to die. The attack settled with medication. Mr Duval required treatment for panic attacks over the years from 1994 to 2001 and has continued to require treatment for panic attacks following the accident on 19 June 2001. On 19 April 1995 Mr Duval consulted his general practitioner for excruciating pain which, he informed his doctor, occurred because he had fallen on his shoulder.
On 14 December 1995 Mr Duval consulted his general practitioner for pain in the groin with a history of collapsing. He had hurt his left leg in that episode. Dr Singh thought that Mr Duval had inflammation in the hip joint and prescribed anti‑inflammatory medication and certified that he was unfit for work for four days. On 18 February 1996 Mr Duval consulted his general practitioner for a sore lower back. He said he fell on the right side. Mr Duval said he was tender on the right side trapezius muscles around the neck and also the left side of the neck. Dr Singh prescribed gentle mobilisation. Mr Duval returned to the surgery on 20 February 1996. At that consultation he complained of no feeling in the right leg.
On 19 April 1996 Mr Duval informed his general practitioner that he was suffering back pain and his left leg was painful and that he was having an operation by Dr Michael Lee. He was given a referral to Dr Lee but there was no evidence that any surgery was carried out by Dr Lee at that time.
On 26 June 1996 Mr Duval had arthritis in the small joints of both hands. He has complained about arthritis in his hands from time to time.
On 21 April 1997 Mr Duval complained of loss of vision, headaches and nausea. It appears that he had a severe reaction to Zoloft. Zoloft is an anti‑depressant medication.
On 2 May 1997 Mr Duval reported severe anxiety regarding the side effects of Zoloft. He also reported left sided sciatica.
Leg pains were reported by Mr Duval on 17 December 1997.
On 5 January 1998 Mr Duval complained of binge drinking. Mrs Duval's evidence was that when Mr Duval has a drink he generally drinks too much, but it may only be once a fortnight that he has a drink. The reference to binge drinking is a reference to alcohol, but there was insufficient evidence of the extent of Mr Duval's alcohol consumption for it to be of any relevance to his claim.
On 23 January 1998 Mr Duval reported that his leg gave way and he fell over. X‑rays showed fractures of two bones of his foot.
On 19 March 1998 Dr Singh carried out a medical review of Mr Duval for the purposes of Mr Duval's disability support pension. Dr Singh completed a Centrelink form. In that form Dr Singh described Mr Duval as suffering from two conditions. The first condition was described as "laminectomy for spinal disc disease 91" with clinical features of weakness of the legs, leg gives way and pain in the lower back. The second condition was "anxiety disorder panic attacks". Dr Singh expressed the opinion that Mr Duval was able to return to work and "might be able to go back to non‑labouring jobs. Can be trained."
At the time that Dr Singh completed that form Mr Duval informed Dr Singh that he was keen to be retrained and he asked Dr Singh not to place too much emphasis on his physical disability. Mr Duval hoped he might get some training. Mr Duval did not receive training. His disability pension was cut off and he was told to get work that was available.
On 19 May 1998 Dr Singh completed another Centrelink form. In that form he described Mr Duval as suffering from asthma in addition to spinal disc disease and anxiety disorder. Dr Singh expressed the opinion that it was likely to be more than two years before Mr Duval could return to work and that he "might be able to go back to non‑labouring jobs".
On 4 July 1998 Mr Duval reported that he was getting depressed and feeling suicidal. He reported a painful left shoulder on 14 July 1998 and back pains on 13 January 1999.
In October 2000 Mr Duval consulted his medical practitioner because he was unable to flex his left little finger which he fractured while playing cricket. This was a minor injury, but it does confirm that Mr Duval was playing cricket prior to the accident on 19 June 2001.
On 1 September 1993 Mr Duval and his wife acquired a nursery in Kwinana. Both Mr and Mrs Duval worked in the nursery. They sold the nursery on 10 January 1994. Their evidence was that they did so because they found that they had to work very long hours in the business. Soon after having sold that business Mr Duval obtained employment as a manual labourer at a business which manufactured outdoor jarrah furniture. The plaintiff continued that employment for approximately seven months. In early 1997 the plaintiff and his wife acquired a gardening service business which he operated for approximately six months. They ceased carrying on that business in mid‑1997 when Mrs Duval commenced employment. From that time the plaintiff ceased looking for employment and his responsibilities were caring for the children and the family home. In the year ended 30 June 1997 Mr Duval's taxable income was $62. In the following year it was $783.
Prior to the accident on 19 June 2001 Mr Duval coached children's soccer, football and cricket teams, played super league indoor cricket two or three times a week and played social tennis once a week.
The consequences of the electric shock
On 19 June 2001 Mr Duval's son told him that a power pole had fallen down outside the front of the house. Mr Duval went to the front of the house. He saw the power pole which had fallen and a truck parked near it.
Mr Duval does not have a clear recollection of events at his home after that. He was taken to Royal Perth Hospital by ambulance. Mr Duval is not sure if he woke in the ambulance or at the hospital. He was suffering from headaches and pains in his chest.
The hospital's records show that the doctor who saw Mr Duval took a history that he had been thrown backwards by an electric charge that morning and had been in and out of consciousness in the ambulance. Mr Duval complained of a sore left wrist, neck pain and headache. The doctor found no cranial nerve abnormality. Mr Duval's arms and legs had 4/5 power throughout and were otherwise normal. Mr Duval had mild cervical spine and upper thoracic tenderness. The records include the notation "NO BURNS".
Mr Duval remained at the hospital for approximately 1‑1/2 hours and discharged himself. He saw Dr Singh on 20 June 2001. He was complaining of pain in the neck, blurred vision and headaches and of feeling very weak. He was in obvious shock, was quite distressed and looked uncomfortable. Dr Singh diagnosed Mr Duval as suffering from the after effects of electric shock which were generalised weakness and also being emotionally disturbed. Dr Singh prescribed pain killers and anti‑inflammatory medication.
Dr Singh has continued to see Mr Duval approximately monthly. Mr Duval's complaints to Dr Singh have been of persistent headaches, aggravation of his back pain, difficulty in maintaining erections, difficulty in voiding his bladder and incontinence of his bladder.
Dr Singh has prescribed analgesics, muscle relaxation medication to treat panic attacks. Mr Duval's evidence was that sometimes Dr Singh injects him with morphine. Dr Singh's evidence was that he gave Mr Duval one injection of morphine. In my view Dr Singh is more likely to be correct as he keeps a record of his treatment of Mr Duval in his notes.
Mr Duval described his current symptoms as being migraine headaches, which he suffers every eight days or nine days, constant tinnitus in his right ear, blurred vision, pins and needles and numbness in his left arm, intermittent numbness in his right arm, numbness in his legs, constant pain at the top of the middle of his back, low back pain, right sided sciatica which is worse than the sciatica from which he suffered before the accident, left sided sciatica and difficulty in maintaining an erection. By sciatica Mr Duval means a pain that goes from his back, over his buttocks and down his legs. Mr Duval also suffers from nightmares three or four times a week. He no longer sleeps in the same bedroom as his wife due to his restlessness at night. In the opinion of Dr Peter Silbert, a neurologist, Mr Duval's headaches are tension headaches rather than migraines.
In cross‑examination Mr Duval assessed his current symptoms as being the same as they were after the accident in 1988, save that he now has left sided sciatica, difficulty maintaining an erection, migraines and pain at the top of his back. This was clarified in re‑examination. Immediately prior to the accident on 19 June 2001 he suffered from sciatica in the right leg which was not severe. He described his right sided sciatica as having "got a little bit worse now" (T169).
MRI scans of Mr Duval's spine have shown a significant disc protrusion at L5/S1 and herniation at T8/9. In the opinion of Mr Lee, neurosurgeon, and Dr Silbert, the herniation at T8/9 is longstanding and not relevant to Mr Duval's current condition.
Mr Duval's main problem is constant left sided sciatica. An MRI on 22 August 2001 showed a left postero‑lateral disc herniation at L5/S1 with impingement on the left S1 nerve root.
On 11 December 2001 Mr Lee carried out surgery to remove the disc protrusion at L5/S1. This achieved considerable improvement in Mr Duval's left leg pain, improvement which lasted only a few weeks. On 7 March 2002 Mr Lee reported that the improvement in his left leg pain "does not seem to have been sustained. He is also experiencing some right leg pain, which I think is probably related to a degree of exacerbation of his old injury, on the right, as he was favouring his left leg."
I accept that as a result of the accident on 19 June 2001 Mr Duval's right sided sciatica has been made worse than it was before the accident, that he continues to suffer from panic attacks which he suffered before the accident and that he now suffers from left sided sciatica, difficulty maintaining erections, tension headaches and pain at the top of his back, in his thoracic spine and in his low back. The low back pain existed before the accident but has been made worse.
Mr Duval now uses a cane to walk. Due to his sciatic pain he is unable to sit or stand for lengthy periods. For approximately four years prior to the accident on 19 June 2001 Mr Duval performed the bulk of the work required to be done at home and his wife worked full‑time. Since the accident Mr Duval has been unable to perform the work required at home.
Mrs Duval continues to work. She also does work at home such as cooking. She is assisted by her mother, Mrs Annie Brukkers.
In the opinion of Dr Philip Finch, a medical practitioner who practises in pain management, the accident on 19 June 12001 exacerbated Mr Duval's pre‑existing problems. Mr Duval has become unfit and deconditioned and has put on weight due to lack of exercise. Mr Duval appears unfit for work and should probably consider early retirement.
Mr Andrew Harper, an occupational physician, has assessed Mr Duval as totally incapacitated for all forms of gainful employment currently and for the foreseeable future. Mr Harper attributes Mr Duval's disability to the accident on 19 June 2001. Mr Harper did not see Mr Duval until after that accident. The history that Mr Duval provided to Mr Harper when he first saw Mr Harper on 2 May 2002 was that prior to the accident he was "as fit as a mallee bull". I have summarised Mr Duval's condition before the accident. It is clear that Mr Duval did have significant restrictions prior to the accident on 19 June 2001. In my view Dr Finch's assessment that the accident exacerbated Mr Duval's pre‑existing problems is a more accurate assessment than that of Mr Harper.
Mr Duval now has significant pain and restrictions in his activities and his enjoyment of life. While he did have limitations before the accident on 19 June 2001 they did not prevent him in engaging in physical activities such as playing cricket and coaching children's sport. The pain suffered by Mr Duval since the accident is significantly greater than it was before the accident. The injuries suffered by Mr Duval have caused him to suffer from a condition which has been diagnosed by Dr Peter Shannon, psychiatrist, as being an adjustment disorder with anxiety and features of anger. Mr Duval had difficulties in adjusting to his accident on 25 May 1988 and had consulted Dr O'Connell, psychiatrist, in January 1992. Mr Duval's psychological condition now is significantly worse than it was before the accident in 2001.
I assess Mr Duval's non‑pecuniary loss as a result of the accident on 19 June 2001 as being 20 per cent of the most extreme case and his award for general damages is therefore $49,100.
Loss of earning capacity
Mr Duval claims past and future loss of earning capacity. His evidence was that it was his intention to carry on a business with his wife, sister and brother‑in‑law when his youngest child commenced high school in 2002. They looked at purchasing the Noble Falls Tavern and were going to start a removal and storage business. Mr Duval's sister and brother‑in‑law had been in business for nearly 12 months. No evidence was given as to the income that Mr Duval could have earned in a business with the members of his family or the income being earned by his sister and brother‑in‑law. Mr Duval had also considered undertaking a 12‑month course and becoming a counsellor.
Mr Duval's evidence was that he had a "couple of friends who are counsellors at foster homes and stuff like that and it would only take me a matter of 12 months with a recommendation from the school and everything else, the trust that's been put in me. I could have done 12 months and become a counsellor." (T47). However, no evidence was given as the prospects of obtaining employment as a counsellor or the income a counsellor earns.
For reasons I have already expressed I accept that Mr Duval has suffered increased pain and physical restrictions as a result of his electric shock injury. However, assessing any loss of earning capacity is very difficult. After the accident on 25 May 1988 the plaintiff has earned very little income. Neither of the businesses he carried on with his wife earned any significant income.
To be entitled to damages for loss of earning capacity Mr Duval must establish both that his earning capacity has been diminished by Mr Pederson's negligence and that the diminution in earning capacity is or may be productive of financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; Trigwell v Trigwell (1997) 18 WAR 83.
Mr Duval's very low income from employment or business in the year preceding the accident on 19 June 2001, his injuries suffered on 25 May 1988, his pre‑accident medical conditions, the fact that he had not been in paid employment or business for four years prior to 19 June 2001 and had commenced receiving a disability pension in 1991 lead me to the conclusion that Mr Duval had very limited earning capacity prior to the accident on 19 June 2001. I estimate his pre‑accident earning capacity as being 15 per cent of the adult minimum wage. It was agreed that the adult minimum wage is $448.40 gross, $376.40 after tax, per week. As a result of the injuries suffered in the accident on 19 June 2001 Mr Duval has lost his pre‑accident earning capacity.
I calculate Mr Duval's past loss from 1 January 2002, when his daughter would have commenced high school. The past loss is therefore:
15% x $376.40 x 88 weeks = $4,968
Interest on that sum at 3 per cent per annum is $251.
Mr Duval is 44 and there are 21 years until he reaches retirement. The multiplier for 21 years is 632.1. The future loss of earning capacity is:
15% x $376.40 x 632.1 = $35,688
In view of the large deduction I have made in estimating Mr Duval's pre‑accident earning capacity I have made no further deduction for contingencies.
There was no evidence as to the costs of superannuation fund administration and taxes or the risk of fund losses. I have therefore used the figure of 30 per cent which was used in Jongen v CSR (1992) A Tort Rep 81‑192. For the period from 1 January 2002 to 30 June 2003 the past loss of superannuation benefits is:
15% x $448.40 x 8% x 88 weeks x 70% = $331
For the period from 1 July 2003 the calculation is:
15% x $448.40 x 9% x 10 weeks x 70% = $42
Total past loss of superannuation benefits is therefore $373. Interest on that sum at 3 per cent per annum is $19.
Future loss of superannuation benefits are:
15% x $448.40 x 9% x 632.1 x 70% = $2,678
Other items of damages
Mr Duval claims future pharmaceutical expenses. I accept that he will need some medication in the future, but there was no evidence as to the cost of that medication. I allow $500 for future pharmaceutical expenses.
Mr Duval's mother‑in‑law, Mrs Annie Brukkers visits Mr Duval's home a couple of times a week and helps out with family tasks. Her husband also helps with handyman tasks. The domestic duties load on Mrs Duval have increased since the accident on 19 June 2001. Compensation to the plaintiff is to compensate him for his inability to look after himself, not his inability to care for the household: Newman v Nugent (1995) 12 WAR 119. In my view a reasonable assessment of Mr Duval's need for assistance is two hours a week. The value of domestic services was agreed at $15 an hour. The past loss is therefore:
2 hours x $15 x 116 weeks = $3,480
Interest on that sum at 3 per cent per annum is $232.
The 6 per cent multiplier for a 44‑year‑old male for the remainder of that person's life is 745.2 (Assessment of Damages for Personal Injury and Death, Luntz, 4th ed, p 689). Future services are therefore:
$30 x 745.2 = $22,356
Mr Duval will require medical treatment in the future, including attending on his medical practitioner and specialists. In my view a reasonable assessment of the cost of future treatment is $5,000.
Past and future travel expenses were agreed at $1,000.
Liability of Western Power
Mr Pederson claims that Western Power's negligence caused Mr Duval's injuries. The negligence particularised is:
"(i)failing to cover the stay wire with a plastic sheath to make it visible to Mr Pederson;
(ii)failing to warn Mr Pederson of the location of the stay wire;
(iii)failing to trim or prune the branches of the tree which concealed the stay wire; and
(iv)failing to maintain the pole which failed."
The fourth allegation of negligence was not pursued at trial.
In 2001 Western Power had approximately 750,000 power poles throughout Western Australia. It now has approximately 770,000 poles of which approximately 250,000 are in the metropolitan area. Western Power has other assets including streetlights, underground cable systems and transformers. It has approximately 3.2 million assets on its assets register.
It has a system of inspection and maintenance of its poles approximately every four years although the period between inspections can be greater. Poles are also inspected when Western Power receives a report that a pole may be damaged.
In October 1998 Western Power received a report that the pole which failed had termite damage. Western Power sent a termite specialist to the pole on 24 October 1998. That inspection was carried out on 30 October 1998. This inspection involved drilling the pole to test the wood and chemically treating the pole in addition to checking for termites and termite inspection.
In February 2001 Western Power received a report that the pole was leaning. Mr Clavey inspected the pole. He saw that some water had been leaking from a nearby pipe. He carried out tests on the pole and satisfied himself that the pole was in good condition.
A routine inspection of the terminating pole on Nardoo Way was carried out on 26 July 1994. Western Power has no record of having received any reports of concerns about the terminating power pole or the stay wire.
As I have noted earlier I accept Professor Boughton's evidence that the pole had a defect that could not be detected by inspection. Mr Pederson's case against Western Power was that Western Power was negligent in not having a visible plastic sheath over the stay wire and in failing to keep the stay wire clear of leaves and branches.
By s 18 and s 30 of the Electricity Act 1945 Western Power is given powers in relation to the management of its electricity supply system.
Section 54(1) of the Energy Operators (Powers) Act 1979 provides that it is the duty of occupiers of land on or over which vegetation is growing to deal with vegetation to prevent it interfering with any electricity supply system. Section 54(2) empowers an energy operator to clear vegetation if the duty created by s 54(1) is not complied with.
The pruning of street trees on Nardoo Way was carried out by the City of Gosnells, but Western Power retained power to prune vegetation on the verge.
The grant of powers does not, without more, give rise to a duty of care to Mr Duval. Whether such a duty exists turns on the relationship between Western Power and Mr Duval:
"To create a duty, the relationship between the public authority and persons affected by the conduct of the authority must be 'so closely and directly affected by [its] act [or omission] that [it] ought reasonably to have them in contemplation as being so affected'." - Donoghue v Stevenson [1932] AC 562 at 580; Graham Barclay Oysters Pty Ltd v Ryan (supra) at [99].
Mr Duval was a resident in Nardoo Way. In my view the relationship between Western Power and residents of Nardoo Way was such that in the management of the electricity supply system in Nardoo Way the residents would be so closely and directly affected by Western Power's conduct that Western Power ought reasonably to have had them in contemplation as being affected by its conduct. I conclude therefore that Western Power did owe a duty of care to Mr Duval.
The content of Western Power's duty to exercise reasonable care must be determined in the context that the duty is not that of an insurer but a duty to act reasonably. What is reasonable must be judged in the light of all the circumstances including the gravity of the injury that might be sustained, the likelihood of such injury being suffered the difficulty and cost of avoiding the danger and all of the circumstances in which the public authority exercises its powers of management: Romeo v Conservation Commission (NT) (1998) 192 CLR 431.
In this case, where there was a stay wire on the verge at the end of a cul‑de‑sac it is my view that the content of the duty of care can be assessed on the basis that users of Nardoo Way such as Mr Pederson will take reasonable care: Brodie v Singleton Shire Council (2001) 206 CLR 512 at [160].
It is my view that Western Power was not in breach of its duty of care to Mr Duval. Western Power's duty of care did not extend to ensuring that persons would not drive their vehicles onto the verge into an area in which visibility was restricted without first ensuring that it was safe to do so.
I conclude therefore that Western Power was not in breach of the duty of care that it owed to Mr Duval. It follows that Mr Pederson is not entitled to contribution from Western Power.
Liability of the City of Gosnells
By letter dated 7 April 2003 from its solicitor to the solicitor for Mr Pederson the City of Gosnells confirmed that the verge on Nardoo Way was controlled and managed by the City pursuant to s 3.53(2) of the Local Government Act 1995. Mr Pederson's case against the City of Gosnells was that it was negligent in failing to clear the stay wire of vegetation.
It was common ground between Mr Pederson and the City of Gosnells that the verge was part of Nardoo Way and was part of a thoroughfare within the meaning of that word in s 1.4 of the Local Government Act1995.
Section 9.57 of the Local Government Act 1995 provides:
"9.57. Local government protected from certain liability
(1)A person cannot recover damages against a local government in respect of loss or injury sustained either to that person or to another person or to property by reason of a mishap upon or while using a portion of a thoroughfare, which portion has not been interfered with by the local government, merely because some other portion of that thoroughfare, whether distant laterally or longitudinally, has been taken over or improved by the local government.
(2)Subsection (1) does not relieve a local government from liability where the mishap is caused by the negligence of the local government in the execution of works then in progress, or which have been completed by the local government in a thoroughfare."
The section was enacted before Brodie v Singleton Shire Council (supra). The section does not provide that local governments are not liable for nonfeasance on highways and are liable only for misfeasance, but seems to assume that the common law so provides. In Brodie v Singleton Shire Council (supra) the High Court held that the liability of highway authorities is to be determined according to ordinary principles of negligence. In my view s 9.57 of the Local Government Act 1995 does not limit the liability of local government as highway authorities to liability for misfeasance. The liability of the City of Gosnells is to be determined according to ordinary principles of negligence. In any event as the City of Gosnells had pruned the pepper tree very shortly before the accident if it had done so negligently its actions would constitute misfeasance. It is my view that when carrying out pruning on Nardoo Way the relationship between the City of Gosnells and residents of Nardoo Way was such that the residents would be so closely affected by the City of Gosnells' conduct that it ought reasonably to have had them in its contemplation as being affected by its conduct. The City of Gosnells therefore owed a duty of care to Mr Duval.
However the content of the duty did not extend to ensuring that persons would not drive their vehicles into an area in which visibility was restricted without ensuring that it was safe to do so. The City of Gosnells was not in breach of its duty of care to Mr Duval and Mr Pederson is not entitled to contribution from it.
Summary
Mr Duval is entitled to damages against Mr Pederson. Those damages are:
Non‑pecuniary loss $ 49,100
Past loss of earning capacity $ 4,968
Interest on past loss of earning capacity $ 251
Future loss of earning capacity $ 35,688
Past loss of superannuation benefits $ 331
Interest on past loss of superannuation benefits $ 19
Future loss of superannuation benefits $ 2,678
Past domestic services $ 3,480
Interest on past domestic services $ 232
Future domestic services $ 22,356
Future treatment costs $ 5,000
Past and future travelling expenses $ 1,000
$125,103
Mr Pederson is not entitled to contribution from either Western Power or the City of Gosnells.
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