Electricity Networks Corporation Trading as Western Power v Herridge Parties & Ors

[2022] HCATrans 148

[2022] HCATrans 148

Office of the Registry
  Perth  No P5 of 2022

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER (ABN 18 540 492 861)

Appellant

and

HERRIDGE PARTIES (PER ORDER MADE BY JUSTICE MITCHELL ON 28 OCTOBER 2019)

First Respondents

IAG/ALLIANZ PARTIES (PER ORDER MADE BY JUSTICE MITCHELL ON 28 OCTOBER 2019)

Second Respondents

RAC PARTIES (PER ORDER MADE BY JUSTICE MITCHELL ON 28 OCTOBER 2019)

Third Respondents

NOREEN MERLE CAMPBELL

Fourth Respondent

VENTIA UTILITY SERVICES PTY LTD (ACN 010 725 247) (FORMERLY KNOWN AS THIESS SERVICES LTD)

Fifth Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 SEPTEMBER 2022, AT 9.45 AM

(Continued from 7/9/22)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Ms Harris.

MS HARRIS:   Thank you, your Honour.  In my attempt to be hasty yesterday, it was perhaps unhelpful not to go first to just remember what the trial judge did in relation to the two duties that were posited by my client and the first respondents at trial.  If one goes to the trial judgement, which is at volume 1 of the core book of authorities at page 90, under the heading:

K. NEGLIGENCE CASE AGAINST WESTERN POWER –

the trial judge first, at paragraphs 287 and 288, outlines the two ‑ ‑ ‑

KIEFEL CJ:   I am sorry, Ms Harris, where are you taking us to?

MS HARRIS:   It is at page 90 of the core appeal book, paragraph 287.

KIEFEL CJ:   Thank you.

MS HARRIS:   The trial judge acknowledges that:

All of the plaintiffs plead that Western Power owed to the plaintiffs two duties of care.

The first is the broader one:

to take reasonable care to inspect and maintain in a safe and fit condition for use in the supply of electricity, connected assets –

et cetera.  Then the second duty is the works‑related duty.  The plaintiffs say that:

Western Power owed the plaintiffs when undertaking works on, or any inspection of, the PA pole, a duty to take reasonable care to inspect, and maintain in a safe and fit condition for use in the supply of electricity, connected assets including the PA pole –

The trial judge’s finding that I only averted to briefly yesterday is at paragraph 297, and his Honour found that:

before undertaking works on the PA pole, Western Power owed to the plaintiffs a duty to take reasonable care to inspect the PA pole to ascertain whether it was in a safe and fit condition for use in the supply of electricity.  It owed the same duty to the plaintiffs when undertaking works on the PA pole.

If when undertaking a pre‑work inspection or when undertaking works on the PA pole, Western Power identified that the PA pole was not in a safe and fit condition for use in the supply of electricity, it owed the plaintiffs a duty to not use the PA pole in or in connection with the supply of electricity.

His Honour goes on to identify the basis for that finding that Western Power had that works‑related duty.  First – and I will not go through them all, but he addresses the factors going to the foreseeability of the risk of harm at paragraphs 300 to 303, including the finding at 302:

a collapse of a wooden pole presents a grave hazard to human life and property.

And then:

Seventhly, Western Power knew, or ought to have known, that any in service failure of a wooden pole created a serious risk of unintended discharges of electricity from the electricity installation supported by, or connected to, the PA pole and if the unintended discharge occurred in hot, dry, windy conditions, the ignition of a bushfire.

The trial judge explicitly recognises at paragraph 303 that:

When Western Power exercised its power to undertake such works, or to inspect the PA pole, it had the requisite control over the source of the risk of harm.

which we say is the important control question; not did it have control over the entirety of Mrs Campbell’s land, but did it have control over the source of the risk of harm?  Ultimately, at paragraph 304, the trial judge finds that the:

duty of care is not incompatible with the provisions of the Electricity Act.

And one might infer with the statutory scheme as a whole, although not expressly stated.  So that duty was not appealed from, but at trial it was held by his Honour at paragraph 359 of the trial judgment to have been discharged by Western Power:

by engaging and instructing Thiess to carry out the relevant work, including the inspection of the PA pole.

What we say is that that duty was a non‑delegable duty, and while it could, in practice, be the performance of the works – the subject of the duty – could be delegated, the duty itself could not.

Before I come to the way the Court of Appeal dealt with this issue, I just wanted to reiterate the state of authority on the principles underlying a non‑delegable duty.  I have gone to them yesterday, your Honours, and I do not wish to repeat myself.  The starting point for my submissions was Justice Gleeson’s discussion in Leichhardt, which, of course, is the most recent discussion of the principles of non‑delegable duty, and it also referred back to Kondis which Chief Justice Gleeson had also been referring to.

I averted to the decision of the Court in Burnie Port Authority v General Jones Pty Ltd, which is in volume 3 of the joint book of authorities at page 866.  The significance of Burnie is, again, a reiteration of Justice Mason’s discussion of the law in Kondis, and his identification of the unifying principles behind non‑delegable duty cases.  I mentioned yesterday, I think, that the Chief Justice Mason and Justices Deane, Dawson, Toohey, and Gaudron, having referred to Kondis, described that element of undertaking the care, supervision, or control of the personal property of another as the central element of control.

Importantly, from our perspective in this ground of appeal – or this proposed ground of cross‑appeal – they also looked at it from the perspective of the person to whom the duty is owed, and at page 552, recognise that:

Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non‑delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person.

The Court in Burnie recognised, as an example of that type of relationship characterised by a central element of control and dependents and vulnerability, the Rylands v Fletcher‑type situation, where one party is in control of premises and has taken advantage of that control to, among other things, undertake thereon a dangerous activity or allow another person to do one of those things. Of course, we say here that Western Power had the powers to enter on to Mrs Campbell’s land under the statutory scheme – under the Powers Act – and, pursuant to section 4(2) of that Act, engaged Thiess on its behalf, at its request, and using the language of section 4(2):

on behalf of the energy operator –

to undertake the works and the associated inspection.  Going back to Burnie, at page 556. First, if I could just – sorry – go back to page 554 in Burnie.

EDELMAN J:   Just before you do, Ms Harris, what is the significance of Thiess acting on behalf of Western Power?  Do you say Thiess was acting as an agent for Western Power?

MS HARRIS: The language of agent is of course also used in section 4(2), your Honour, separately. It was put to the trial judge that Thiess was an agent and that was rejected. There is no ground of appeal on that, but in terms of what the statutory scheme demonstrates as the purpose of Western Power being able to request independent contractors to do work, it does indicate a closer relationship of responsibility than simply saying we have requested you, by contract, to do this. The words, on its behalf, we say, do add an extra element of, in effect, unifying ‑ ‑ ‑

EDELMAN J:   But you are not using them in a strict sense of agency?

MS HARRIS: No, your Honour, because that is separately identified in section 4(2). Your Honours, I just wish to note in passing, at page 554 of Burnie under the heading “The degree of care”, the Court acknowledges that it has been emphasised in many cases that the degree of care under that standard – the standard of what is reasonable under the ordinary law of negligence – necessarily varies with the risk involved, and that the risk involved includes both the magnitude of the risk of an accident happening, and the seriousness of the potential damage if an accident should occur.  The reason I point to those words is because they come back in the discussion of Justice Nettle of non‑delegable duties in the case of Meech v The Queen.

Then, finally, I just wish to point to the observations at pages 556 to 557 in Burnie, where, after having acknowledged that the ruling in Rylands v Fletcher had been absorbed into the principles of ordinary negligence, the Court goes on to observe that:

Under those principles, a person who takes advantage of his or her control of premises to introduce a dangerous substance, to carry on a dangerous activity, or to allow another to do one of those things, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another.

That is certainly putting to one side any requirement of actual physical control – it might be sending another party on pursuant to the principal’s ability to enter land.

Your Honours, if I can then briefly go to McLean v Meech, which is where Justice Nettle discussed the principles underlying non‑delegable duty.  That is in volume 8 of the joint book of authorities at page 2842.  It is a decision of the Court of Appeal of the Supreme Court of Victoria.

EDELMAN J:   So which tab is this?

MS HARRIS:   That case did involve a statutory authority.

KIEFEL CJ:   Which tab is that?

MS HARRIS:   Your Honour, I am sorry, I do not have the tab – I did ‑ ‑ ‑

KIEFEL CJ:   Which page did you say again?

MS HARRIS:   It is 2842.

GORDON J:   It is tab 60, I think.

KIEFEL CJ:   Yes.

MS HARRIS:   Thank you, your Honour.  I apologise.  That case did not involve a statutory authority; it related primarily to the duties of an occupier but not owner of land from which a horse had escaped and caused a motor vehicle collision, which then caused injury.  Justice Nettle at that court, as his Honour then was, with whom Justice of Appeal Chernov and Acting Justice of Appeal Hollingworth agreed, examined in some detail the principles relating to non‑delegable duties, including the discussions in Kondis and Burnie. The passage that I wished to identify to the Court is in paragraph 22, at page 2851. I will not read that whole paragraph, your Honours, but at the end of that paragraph 22, his Honour observes:

Following the decision in Burnie Port Authority, the question in each case is whether the combined effect of the magnitude of the foreseeable risk of an accident occurring and the magnitude of the foreseeable potential injury or damage if an accident does occur is such that an ordinary person acting reasonably would consider it necessary to exercise “special care” or to take “special precautions” in relation to it.

That was the conclusion as to what the non‑delegable duty involved in that case and the principle underlying it.  Now, we understand Western Power to say that Meech is inapplicable because Western Power was not in control of Mrs Campbell’s land at the time of the works duty, but we say that, for the purposes of the principles underlying non‑delegable duty, that conception of control is too narrow.  We refer back to the degree of control which is evinced by the legal power to enter onto the land, the power to do the works, and the power to request the independent contractor to do the works on its behalf. 

EDELMAN J:   Ms Harris, in 2013 in Woodland v Swimming Teachers Association, the Supreme Court of the United Kingdom, by reference – including to a number of the Australian authorities, including a number of those that have taken us to – drew a distinction between two classes of non‑delegable duties; the class based upon undertakings or assumptions of responsibility, to which one might say, in some statutory cases, by analogy and an imposition or an imposed undertaking, and a class based upon extra‑hazardous activities.  Do you say that that distinction can be drawn from the Australian cases, or do you seek to rely on both elements in a unified category, which is maybe the way that I am understanding your submissions?

MS HARRIS:   I think it is the latter, your Honour.  In Leichardt, Justice Gleeson had quite an extensive discussion of the two types of non‑delegable duty for a statutory authority.  One, the personal duty that cannot be delegated; the second is the one we are talking about, and then, later in the judgment, said we are not here dealing with that category of non‑delegable duty dealing with extra‑hazardous activities that had been articulated in previous cases.

Now we did put that this was an extra‑hazardous activity, but we do not rely exclusively on that category because we say the principles underlying non‑delegable duties of the central element of control, vulnerability and dependence will require reference to the dangerous nature of the activity.  If one goes back to Burnie, there is a reference back to Thompson – the case to which your Honours have been taking – about the undertaking of an electricity supply system being a dangerous undertaking.

So the dangerous nature of this undertaking – and the dangerous nature, we say, of the works – is essential to inform the magnitude of the risk and the vulnerability of the class of plaintiffs in the vicinity of the SWIS who had no control over that serious danger.  Obviously, for an undertaking of the nature of an electricity supply system, it would never have control.  That is a highly specialised public undertaking that was under the charge of Western Power.

GORDON J:   Is this a new category?  I ask that for these reasons.  In Woodland that Justice Edelman just talked to you, Lord Sumption said there was no underlying theory that underpinned all of these so‑called non‑delegable duty cases and that is why he sort of characterised them by these two broad categories.  Then you have Justice Gummow in Scott v Davis forcefully suggesting that we do not expand non‑delegable duties as a sort of separate head of liability.  Is this a new category, then?  Is this a sort of forging of two to create a new one?

MS HARRIS:   No, your Honour, we say it is not.  We say it falls comfortably within the conception of non‑delegable duties in Burnie.  Of course, in Kondis and Burnie their Honours did attempt to distil a unifying principle of the cases.  By the time of Leichhardt, we concede that perhaps it is not regarded as being fully brought into that fold, but while we had put this as an extra‑hazardous duty, a more satisfactory way of understanding it, we say, your Honour, is that it is a duty that is non‑delegable by reason of it attracting the principles as stated in Burnie and Kondis and Meech.

Turning on a very high degree of control, extreme vulnerability and dependence on the entity that holds that control and involving a risk – and this is perhaps where the element of danger is best understood – involving an element of risk which is highly foreseeable and of an extreme and significant magnitude should it eventuate.  So we do not say that it needs to be regarded as a new category, or a melding of both the line of authority about extra‑hazardous duty and the lines of authority that were unified in Kondis by those principles, because we say it fits comfortably within the existing understanding expressed by the Court in Burnie of non‑delegable duties.

Your Honours, I see the time so the only thing that remains is that I should – the final element, of course, and I will not go through it again because we did spend time on it yesterday, is that it could not be inconsistent with the statutory scheme, it must be something – the non‑delegable nature of a duty must be able to sit conformably with the legislation.  We say for the reasons we went to yesterday that it is not inconsistent with the scheme by reason of the provisions of the Electricity Operators (Powers) Act and the scheme as a whole to say that when Western Power delegates functions to a contractor at its request and on its behalf, it is entirely consistent that it retains – subject to the context, there may be some duties that do not fall into the analysis we have gone through – but it is consistent that it retains responsibility to ensure that reasonable care is taken, or, in effect, that it remains liable for any breach.

If we then finish by going to the Court of Appeal’s reasons, your Honours, just to identify why we say the Court of Appeal erred, at paragraphs 226 to 227 of the Court of Appeal’s judgment, which is at page 462 of the core appeal book, the court considers this question of whether the duty was non‑delegable.  We say that the first error was that there was too narrow a focus on whether Western Power was in physical control of the land.  At paragraph 226, the court says:

Western Power did not have control over the land on which Thiess performed work of the kind which would give rise to the duty recognised in Burnie Port Authority.  While in control of the SWIS, which included the service cable, Western Power was never in control or occupation of Mrs Campbell’s Parkerville property.

We say two things.  One, that is too narrow a conception of control.  Secondly, in effect, they – through Thiess – did exercise a strong element of control when entering onto the land to perform the works.

The second way we say that the Court of Appeal erred was that it construed, at paragraph 229, the legislative scheme to say that:

there is nothing in the legislation to suggest that Parliament intended to impose a duty on Western Power to ensure that reasonable care was taken in the exercise of those functions.

We say that when the statutory scheme is examined, that proposition is not worn out.  The legislative scheme is not only not inconsistent with it, it is entirely compatible with the idea that the works duty was a non‑delegable duty.  Thirdly, and importantly, we say ‑ ‑ ‑

EDELMAN J:   Just on the second point, Ms Harris, you need not elaborate on it, but could you just explain what your position is on

section 25(1)?  I understand your position on 25(1)(a) is that that is a non‑delegable duty.  What about 25(1)(b) or 25(1)(c) or (d)?

MS HARRIS:   We would say 25(1) is also non‑delegable.  Section 25(1)(b) – there is a question, your Honour, about first:  can the duty of the actual supply of electricity be delegated within a practical sense?  The Electricity Operators (Powers) Act talks about provisions of this Act and that is limited to:

entry on or into any land . . . carrying out of any works –

and so on.  With respect to whether that duty of the actual supply could be delegated, that is far from apparent, but if one is talking about the obligation to take all reasonable precautions in order to avoid the risk of fire, to the extent that that actually relates to the supply of electricity, it may be that it also cannot be delegated, because the supply of electricity is being done by the authority itself.

EDELMAN J:   So, it is a duty to ensure that all reasonable precautions are taken?

MS HARRIS:   Yes, your Honour.  I think that is the best reading of it.  I think your Honour mentioned paragraph (c).  While it is not essential to our argument, it may well be that it attracts the same analysis.  So, your Honours, the final thing I wish to point out about the Court of Appeal’s judgment was that it failed to have regard to the plaintiff’s special vulnerability and dependence if reasonable care was not exercised in undertaking the works duty.

The Court of Appeal’s focus was very strongly on ultra‑hazardous activity, but the general propositions about the central element of control and vulnerability and dependence were put to the Court.  The Court of Appeal did recognise the foreseeable potential for failure of a structure supporting live electrical apparatus to result in gravely hazardous consequences of death or injury – that is back at paragraph 157 of the Court of Appeal’s judgment – but it did not go on to bring that to bear to the analysis of the non‑delegable duty and the effect that it would have on the magnitude at a foreseeable risk of the accident and of the foreseeable injury which called for special care by reason of the existing authorities on that question.

Your Honours, those are our submissions on that non-delegable duty cross‑appeal.

KIEFEL CJ:   Yes, thank you, Ms Harris.  Yes, Mr Dharmananda.

MR DHARMANANDA: Thank you, your Honour. I propose to reply to our appeal and then deal with the non‑delegability point. At transcript 96, point 480 to 97, point 420, Mr Gleeson argued that section 28.3 of Energy Operators (Powers) Act 1979 – which is in the second volume, tab 25, relevantly page 587, gave Western Power ample power to inspect and replace the PA pole.

Even assuming the fact of that power, it was not exercised by Western Power, nor was control taken by Western Power as the Court – and I think it was Justice Edelman – raised, there is an issue as to whether the power may be exercised – needs to be exercised in conformance with the function in section 41(1) of the Electricity Corporations Act 2005. The fact that Western Power has the function as regards its distribution system, the system by which it transports electricity, does not require it to inspect consumer poles and replace them.

There are two aspects, therefore, to our case.  Western Power did not exercise any actual control over the consumer’s PA pole, and to impose an obligation of routine asset inspection of consumer PA poles would be incoherent and incompatible with this scheme.

Once it is appreciated that Western Power’s function is as to the management of Western Power’s distribution system, one is not compelled to the absurd suggestion embraced by our learned friends that Western Power would be responsible to inspect and maintain consumer property, including, for example – as Justice Edelman raised – a fascia board at a house to which Western Power’s service is connected.

EDELMAN J:   Why not?

MR DHARMANANDA:   In our submission ‑ ‑ ‑

EDELMAN J:   If it is Western Power’s fascia board, or its power system that is connected to a fascia board, and Western Power is concerned about failures of the fascia board, why would it not be entitled to make repairs using the powers in the Powers Act?

MR DHARMANANDA:   In our submission, the requirement would be for the consumer to make repairs as regards their property.  It is not the function or a requirement of the statutory scheme for Western Power to do so.

GORDON J:   Assume that is right for the moment, it would still give them the power to turn off?

MR DHARMANANDA:    Absolutely, the power to turn off.

GORDON J:   I do not think that helps you though, does it?  In other words, they could still have this function, 41, inspect their own mechanisms, bits and bobs.

MR DHARMANANDA:    Yes.

GORDON J:   At the fascia board and say, stop.

MR DHARMANANDA:    They have, in our submission, a function of ensuring their service apparatus is safe and maintained, but that function does not extend to require, as a matter of common law duty, routine inspection of, in the example we are using, the fascia board.

EDELMAN J:   They are two different points though.  The first point is whether they have got the power to do it.  And the second is, in exercising that power, what duties do they have?  I understand your submission to be that they do not even have the power to interfere with consumer property, even where they need to do so in order to, for example, adjust the hook that a cable is connected to.

MR DHARMANANDA:    The submission I am making is, if they have the power to deal with consumer property for the purposes of managing their property, I am not cavilling with that power.  The duty point is the submission is making.

GAGELER J:   When you say managing their property, that includes safely connecting their cable?

MR DHARMANANDA:    Yes.

EDELMAN J:   And ensuring that their cable remains safely connected and remains operating safely.

MR DHARMANANDA:    Ensuring that the cable remains safely connected is pregnant with whether or not that includes an obligation of routine inspection of consumer property, and we submit it does not, for the reasons we have developed in our case.

GORDON J:   It may be a slight – “fudge” is probably the wrong word – but, when you accept, as I think you do, that there is a need to inspect your own property, then it is not a very large step to take to say that there is also a need to inspect your property and what it is attached to.  And, in a sense, that is the bit about which we are fighting.  That is the issue, in a sense, that what I think Justice Edelman was putting to you.  I do not quite know what your answer is to that.

MR DHARMANANDA:   In our submission, because of the operation of the scheme, there is no obligation to check every bit that the service apparatus is connected to, because of the intention – which I will not go back over – but also because if one stepped back and thought about that, there is a parallel obligation on the owner, and the exact same obligation on the utility because of an assumption that the owner will not be complying with their duty.  We say that that is not a proper extension of the common law.

EDELMAN J:   Do you accept the first part of Justice Gordon’s question; that there is a duty upon an operator like Western Power to inspect its own equipment?  To make sure, for example, that the cable is not frayed or that electricity is not flowing in an unsafe way through the cable?

MR DHARMANANDA:   Yes, and we say that that is entirely within 25(1)(a), the obligation to maintain.

STEWARD J:   Can I ask you perhaps a more detailed question about the language of section 49(c) of the Powers Act and the way you read it.  Do you contend that when it refers to:

supply system, or any undertaking or other related things necessary for the establishment or maintenance of any supply system –

On your case, is that necessarily limited to the things that you own?

MR DHARMANANDA:   That is how we put it below, and that is what the trial judge accepted.  But, as your Honour would have worked through, there are multiple definitions that are used.  An argument could be made that the repair of entitlement may include consumer property, but we say no.

STEWARD J:   You would say that we should read it down.  It is a threshold to your whole case, at the end of the day, that you have a dividing line about power, that is, you have power and responsibility for what you have got, and the owner has power and responsibility for what it owns.  If that is wrong, and if (c) does give you the power to inspect, repair things which fall within the phrase:

related things necessary for the establishment of maintenance of any supply system –

Such as, arguably, the PA pole, then things probably get a bit harder for you.

MR DHARMANANDA:   In our submission, no, because then one is in an assumed power, you still have to make judgment about whether power exercised and required to be exercised ‑ ‑ ‑

STEWARD J:   You might say, then, that whilst Parliament has reserved the power company the theoretical capacity to go in and replace the PA pole, one should not equate that theoretical power with a positive duty.

MR DHARMANANDA:   Precisely.

STEWARD J:   I understand.  Thank you.

MR DHARMANANDA:   So, this is not a case where Western Power is liable because it chose to exercise – assume the power the subject of one of its functions.  As to the point of supply that Justice Gordon and Justice Steward raised with counsel, including me, on day one, the point of electricity supply occurs at the consumer mains connection box.  We have prepared an aide‑mémoire that explains that, which takes, as I said, trying to avoid it, one is compelled to go to the Wiring Rules and other things, but that document that the quote has explains how the point of supply has been described in all of the legislative material which leads to the Wiring Rules and when they – in 1997 when the WA electricity requirements came in, it refers to that as well.  That is why supply occurs at the mains connection box, in this case at the top of the pole.

There is one other piece of legislation that my instructors have identified.  I have not gone through it, but it addresses Justice Steward’s question about title.  There is a regulation called the Electricity Distribution Regulation 1997, and the relevant regulation is 45(2), which deals with title to and risk, and, as we read it – as my instructors have read it – when one goes through the maze of definitions, one ends up with title passes from transporter to retailer, Synergy, at the point where distribution system ends.  One goes through that – that gets to the mains connection box in our case, which is the same as the point of supply.

At transcript 87, point 3885, Mr Gleeson made submissions about section 43 of the Energy Operator’s (Powers) Act 1979, which is in the second book at page 616.  The effect of the submission was that this was the provision under which property owned by Western Power’s predecessor at consumer premises was transferred to Western Power.  We submit that is an incorrect construction.  Section 43 is concerned with ensuring that Western Power and its predecessor continues to have property over works or things placed on consumer land.  The power in section 43(2) to:

demolish . . . or remove –

et cetera, is a power given to Western Power as to its own property, not as to consumer’s property.  At transcript 98, point 4282, Mr Gleeson made submissions about the width of the powers in sections 49(c) and 49(d).  May I just go back to them.  We make a few points about that.  The powers are given:

For the purpose of, and subject to –

the Powers Act.  That, as I said in opening, appears at the chapeau of section 49.  May I invite the Court to focus on section 49(d) and, in particular, note the words in parenthesis that my learned friend did not read.  It is a large mouthful, but, as we read it, section 49 goes this way: Western Power may cause:

any distribution works or service apparatus –

to be affixed:

to or against any part of a house, building or other structure –

But the words in brackets make it plain that is a condition of Western Power’s attachment that if the owner or occupier wishes to rebuild or alter, they need to be detached, and if not attached for the sole purpose of energy supply to that owner or occupier, Western Power must pay for the removal and any reattachment.

Section 49(d) draws a clear distinction between the distribution works and the structure to which it is attached.  The PA pole or any part of any structure to which Western Power’s service cable is attached is not part of Western Power’s distribution works.  At transcript 101, point 4400, Mr Gleeson referred to section 57 of the Powers Act, which is a couple of ‑ ‑ ‑

EDELMAN J:   Mr Dharmananda, are you going to come back to section 46, or have you skipped over that?

MR DHARMANANDA:   I did not propose to say anything more about it, your Honour.

EDELMAN J:   Do you accept that section 46(1), particularly read with the deeming provision that Mr Giles took us to in section 46(9) would give Western Power the power to deal with the pole as part of any carrying out of any works without the consent of the occupier?

MR DHARMANANDA:   I think we accept the latter part – consent not needed – but as to the dealing with the pole, I would be repeating submissions I have already made about – there is a question.  And we say, no.

At transcript 101, point 4400, Mr Gleeson referred to section 57 of the Powers Act – and that is at page 633 – suggesting that section 57 gave power to deal with the pole because it created a system emergency.  In our submission, that is not correct.  “System emergency” is defined in some detail in section 57(1).  It is necessary for an opinion to be formed that immediate action was required.  Before the PA pole collapsed, it could not be described as giving rise to a “system emergency” as defined.  There is a further point.  Section 57(1) defines, for the purposes of the section, “distribution system” as:

distribution works and service apparatus pertaining to distribution works –

Then, in the definition of “system emergency” on page 634, in paragraph (a) it is defined as:

any event of circumstance –

as to a distribution system:

(a)by reason of which the ability of the operator of the distribution system to maintain a supply . . . is, or may reasonably be expected to be, affected –

The words in parentheses at paragraph (a) are important.  They say that:

(and for the purposes of this section a reference to a distribution system is taken to extend to any act, matter or thing which affects, or in the opinion of the operator or the Minister may affect, the supply of energy or the obtaining or manner of delivery of any energy or energy resource) –

So, the definition of “distribution system” is widened for the purposes of emergency. That widened concept may, let it be assumed, perhaps include consumer property. Absent the widening, “distribution system” does not include consumer property. At transcript 112, point 4903, Justice Gordon raised regulation 241 of the Electricity Regulations 1947. Your Honours will see that in the second book of authorities, tab 15, page 477.

Mr Gleeson also made submissions about regulation 242 on Tuesday and the transcript is T92, point 4081.  The fact that, in regulation 241(2) it is made clear that to avoid doubt the network of the network operator does include service apparatus but not, for example, a pole to which electricity is supplied, that is beyond the point at which electricity is supplied, in our submission, is telling.  The intention of the scheme is to avoid a PA pole being treated as part of the network.

Regulation 242(1) requires Western Power to supply, when its service apparatus is installed and maintained, connection of the consumer’s electric installation would be safe and:

any notice of completion . . . has been produced –

Regulation 242(1A) at the foot of page 477 defines “notice of completion” as:

a notice of completion required under the Electricity (Licencing) Regulations 1991 regulations 52 and 53.

The reference is tab 20 page 528. There is no need to go to it.  Regulation 242, in our submission is not a source of power requiring routine consumer asset inspection.  The argument Mr Gleeson made is that the PA pole was somehow the shared responsibility of Western Power and Mrs Campbell.  Mr Gleeson relied on an assertion that Western Power somehow incorporated the PA pole into its distribution system.  We submit that it was Mrs Campbell’s responsibility as the person who installed it to obtain electricity supply as the owner of the pole.

There is something strange, in our submission, about the idea of shared responsibility for the routine inspection and maintenance of a consumer pole.  On the Court of Appeal’s findings, Mrs Campbell is liable for failing to inspect and maintain the pole, and Western Power is liable for failing to have a system of inspection of the same pole.

It would be that Mr Hutley, and now Mr Giles, who brought Mrs Campbell’s unsuccessful cross‑appeal, fully appreciated that such an idea of shared responsibility may not be found.  Mrs Campbell sought to sheet home all liability to Western Power.  In truth, for the reasons we have submitted, the relevant liability is Mrs Campbell’s.  At transcript 127, point ‑ ‑ ‑

STEWARD J:   Just before you go on, on that issue of having a system of inspection, can I just take you back to the trial judge’s reasons at 223 and 224, and ask you whether the finding that Western Power had established a system for inspection, what that included, bearing in mind that regulation 253 and 254 deal with consumer‑owned property.

MR DHARMANANDA:   Yes.

STEWARD J:   What did it extend to?

MR DHARMANANDA:   That is the 253 – as I described it in opening – a system by permitting sample.  So, that is when a consumer installs electrical work or alters it, then it needs to be checked before it connects to the network.  Originally, every time it was done it needed to be checked.

STEWARD J:   Would that include the PA pole, if it was new?

MR DHARMANANDA:   If there was an electrical installation that included a PA pole, the checking involves checking – for electricity – the safety of the network, so yes, it could include ‑ ‑ ‑

STEWARD J:   Could include the pole?

MR DHARMANANDA:   It could include, but it is by sample as regards when connections are made, when there is alteration are made ‑ ‑ ‑

STEWARD J:   The difference between the Court of Appeal and what in fact happened is that there was a system of inspection by sample, which could include the pole, versus the regular periodic testing, which the Court of Appeal said would be needed.  What is the difference between the two?

MR DHARMANANDA:   Paragraph 253 is directed to checking electrical work only when new, or only when changed.  Routine inspection is ‑ ‑ ‑ 

STEWARD J:   Outside of that.  All right.

MR DHARMANANDA: ‑ ‑ ‑ regardless of no change. At transcript 127, point 5600, Mr Giles, my learned friend, referred to section 75 of the Energy Operators (Powers) Act 1979, which is tab 26 of the second book, page 598. The relevant page is at 662.

The argument that a consumer using a licensed electrician could not interrupt supply to replace their apparatus, including the PA pole, because there would be an offence under section 75 would not be accepted, we submit. Section 75(1) is directed to the wilful interruption of supply without giving notice to the network operator which is permitted by regulation 51 of the Electricity (Licensing) Regulations 1991 – I will give your Honours a reference, I do not need to go to it. It is in the second book, tab 20, starting at 517, the relevant page is 527. I took the Court to that in opening.

At transcript 130, point 5722, Mr Giles argued that the 1979 amendments to the Electricity Act negated the Parliament’s intention of 1945, that the supply authority was not responsible for consumer property.  When the 1979 amendments were made, inserting the broader definition of service apparatus, no change was made to section 25(1)(a).  The absolute obligation to maintain service apparatus remained an obligation only as to service apparatus belonging to the network operator.

Thiess relies in its aide‑mémoire in paragraph 8.b.i. to the Electricity Act section 47.  May I just say this, that section applies only to property of a supply authority, and Western Power is a network operator and not a supply authority, so that provision is inapposite.

May I deal now with the cross‑appeal on non‑delegability.  We submit that special leave should not be granted to appeal against the trial judges in the Court of Appeal’s conclusion that the pre‑work inspection duty was not non‑delegable.  In our submission, there is no special leave point.  The issue is a matter of statutory construction and nothing in the scheme requires the conclusion that Western Power had to act personally when maintenance work including pre‑work inspection were done.  If Western Power owed a non‑delegable duty of pre-work inspection, it would not only have to engaged to competent contractor, but also to have taken steps to ensure, in this case, Thiess acted properly.  Such a strict obligation is not contemplated by the scheme.

The Court of Appeal correctly followed this Court’s analysis in Stevens v Brodribb Sawmilling Co (1986) 160 CLR 16. Your Honours will find it – I am not going to go it – in the book of authorities at volume 6, tab 48, page 2202. That case, Brodibb, was closely analysed by Justice of Appeal Campbell, speaking for the New South Wales Court of Appeal in Transfield Services v Hall (2008) 75 NSWLR, page 12.  It is in the book and I am not going to go to it.  It is volume 9, tab 76, at page 3601.

The simple point is that a principal is not liable for its independent contractor’s negligence, merely because the work is said to be extra‑hazardous.  The Court of Appeal said so much – again, I am not going to go to it – at paragraph 228 of the judgment, and that is in the core book 1, page 463.  Also, the trial judge made findings accepted by the Court of Appeal that the July 2013 works were not extra‑hazardous.  May I give the Court the references?  The trial judge at paragraph 337, it is in the book at 103.  Court of Appeal at 231, it is in the book at 464.

The challenge to that fact‑specific finding involves no more than an assertion that electricity supply must always be treated as extra‑hazardous.  There is no focus on the work done in July 2013 of replacing the termination pole – which relevantly required inspection of the pole – and the disconnection and connection of Western Power service cable.  There is nothing in the facts of this appeal that would justify the extension of the classes of case in which a non‑delegable duty arises to a new class.

The Court has already been taken to Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22. It is in the book tab 41, at page 1485. I do not propose to go back over what Chief Justice Gleeson said, but I may just draw one thing out of what Justice Heyne said at paragraph 155. His Honour said at the top of page 76 of the Commonwealth Law Reports:

the doctrinal roots of non‑delegable duties are anything but deep or well established.  Professor Glanville Williams went so far as to say that imposition of non‑delegable duties represents the reaching of a desired result “by devious reasoning and the fictitious use of language”.

Justice Callinan said something similar at paragraph 190, in the second sentence, page 88:

The unanimous judgment of this Court in Sullivan v Moody speaks of the necessity for coherence in the law.  All of this is to suggest that this Court should scrutinise with great care, and generally reject the imposition of non‑delegable duties, unless there are very special categories warranting an exception, as to which nothing further need be said here.

The statutory scheme under which Western Power, as network operator distributes electricity to consumers, does not provide expressly or by implication that Western Power was always required to act personally without any ability to delegate any work to independent contractors. Section 4(2) of the Energy Operators (Powers) Act with which your Honours are familiar makes it clear that the Parliament expressly contemplates that Western Power could engage independent contractors. The last part of section 4(2) expressly provides that any reference to, or liability of the energy operator may be construed as a reference to the independent contractor – that is, the independent contractor is given power in a reference to the energy operator, both as to power and liability is to the independent contractor.

My learned friend took your Honours to sections 120 and 121 of the Powers Act. That is at page 671 in the second book, tab 26. Putting it shortly, section 120 provides that the energy operator or the independent contractor is liable to pay adequate compensation if they cause physical damage on entry as permitted by 49. Section 121 provides that there is no liability for that damage unless it is attributable to negligence of the energy operator. Because of section 4(2), sections 120 and 121 apply directly to an

independent contractor to make them liable for damages, and to save them from liability for damages if they were not negligent.  The submissions made by the Herridge parties in their reply submissions at paragraph 6 that Western Power had, quote:

transcendent legal and practical control –

over Mrs Campbell’s property and the July 2013 works should be rejected.  Western Power did not take control of Mrs Campbell’s property of the July 2013 works in any legal or factual sense.  The scheme enabled Western Power’s independent contractor to go onto Mrs Campbell’s property and to do the July 2013 works. 

Western Power did neither of those things and that is picked up by the Court of Appeal at paragraph 226 of their judgment at page 462.  Control was exercised only by Thiess.  Western Power had no requisite control.  The Court of Appeal correctly concluded that both Burnie Port Authority v General Jones (1994) 179 CLR 520 – and that it is in the third volume, tab 28; I am not going to go to it – and AD & SM McLean v Meech (2005) 13 VR 241 – it is in the materials in volume 8, tab 60 – are distinguishable on the basis of the control point.

If AD & McLean v Meech went on special leave to this Court and special leave was not granted, looking at the discussion, which included between the Chief Justice and counsel, the case boiled down to a case about the parents being liable for the person who was running the horse – a case so far removed from this case – and Chief Justice Gleeson could not see the point of principle that was being raised to deal with non‑delegability, as if it needed to be looked at by this Court.

In our submission, special leave to cross‑appeal on the issue of non‑delegability should be refused.  May it please you, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Dharmananda.  A reply, Ms Harris?

MS HARRIS:   Your Honours, I do not – excuse me, that is quite a difficult mask.  There is no further point that we need to make in reply.  The Herridge parties, I should say, had joined in this grant of appeal if that is not clear in those submissions.

KIEFEL CJ:   Yes.  Thank you.

MS HARRIS:   Thank you.

KIEFEL CJ:   Mr Dunning.

MR DUNNING:  Your Honours, we have just one point.  Your Honours, it is simply to make this submission.  Our learned friend Mr Dharmananda challenges non‑delegable duty as incoherent and not soundly based in principle.  It is an issue that was litigated fully at trial and fully in the Western Australian Court of Appeal and fully litigated here.   In our submission, that would make it a most suitable vehicle for a grant of leave and for disposition to address – if it be right – those criticisms of its lack of coherence and, in particular, it is part of the fabric of our law, so if it is going to be met with submissions like, it is incoherent, then it would be appropriate for it to be disposed of.  They are our only submissions.  Thank you, your Honour.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.

AT 10.51 AM THE MATTER WAS ADJOURNED