Giovenco v Dick

[2010] NSWDC 4

CITATION:	Giovenco v Dick [2010] NSWDC 4
HEARING DATE(S):	23, 24 March and 19 June 2009
JUDGMENT DATE:	4 March 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment for the plaintiff against each defendant in the sum of $350,000; 2. The defendants are to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered; 3. On the cross claims, as between the defendants, liability is apportioned in the proportion of 20 per cent on the part of the first defendant and 80 per cent on the part of the second defendant; 4. No order as to costs in respect of the cross claims; 5. Exhibits may be returned; 6. Liberty to apply on 7 days notice if further orders are required.
CATCHWORDS:	TORTS – negligence – occupier’s liability – unwitnessed electrocution death of self – employed handyman in course of repairing a roof leak at the base of a redundant roof mounted solar hot water installation on rental property owned by first defendant – second defendant plumbing contractor previously carried out work on the system – redundant hot water system left connected to electricity supply – considerations under Civil Liability Act 2002 – contested liability in negligence for damages claimed by surviving de-facto spouse of deceased – liability assessment where precise mechanism of electrocution not known – whether there was contributory negligence on the part of the deceased – apportionment of liability between defendants - DAMAGES – damages agreed pursuant to Compensation to Relatives Act 1897
LEGISLATION CITED:	Civil Liability Act 2002, ss 5B; 5D; 5E, 5F, 5G, 5I, 5R and 5T Compensation to Relatives Act 1897 Electrical Safety (Electrical Installations) Regulations 1998 Evidence Act 1995, ss 79 and 80
CASES CITED:	Bhambra v Roet [2003] NSWCA 393 Chapman v Hearse [1961] HCA 46 at [6]; (1961) 106 CLR 112 Chappell v Hart [1998] HCA 55; (1998) 195 CLR 232 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Donoghue v Stevenson [1931] UKHL 3; (1932) AC 562; Haber v Walker [1963] VR 339 Haynes v Harwood (1935) 1KB 146 Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 353 March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Mason v Demasi [2009] NSWCA 227 Modbury Triangle v Anzil [2000] HCA 61; (2000) 205 CLR 254 Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49 Northern Sandblasting v Harris [1997] HCA 39; (1997) 188 CLR 313 Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 Roads and Traffic Authority of New South Wales v Dederer & Anor [2007] HCA 42; 234 CLR 330 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
TEXTS CITED:	Fleming, Law of Torts, 9th Ed
PARTIES:	Fiona Giovenco (Plaintiff) Geoffrey John Dick (First defendant) Paul Thomas Stephens t/as CTS Plumbing (Second defendant)
FILE NUMBER(S):	4826 of 2007
COUNSEL:	Mr AJ Stone (Plaintiff) Mr R Cheney (First defendant) Mr ADM Hewitt SC (Second defendant)
SOLICITORS:	Stacks / Goudkamp (Plaintiff) Lee & Lyons (First defendant) Curwoods (Second defendant)

JUDGMENT

Table of Contents

Nature of the case and background	[1] – [4]
Issues for determination	[5] – [6]
Summary of findings	[7] – [9]
Evidence survey	[10] – [56]
Overview of the array of evidence	[10] – [13]
Oral evidence	[14] – [38]
Mr Gell	[14] – [16]
Mr Dick	[17] – [26]
Mr Stephens	[27] – [38]
Factual reports	[39] – [44]
Expert reports	[45] – [56]
Mr Armstrong	[46]
Mr Carmody	[47] – [49]
Mr Blacker	[50]
Associate Professor Blackburn	[51] – [56]
Facts	[57] – [90]
Ownership, use and condition of premises	[58] – [59]
A problem with the solar hot water system on the premises	[60]
Defendants’ knowledge of problem with hot water service	[61] – [65]
Installation of a new gas hot water system	[66] – [70]
Mr Harley’s involvement with the premises	[71] – [78]
The Gell/Harley inspection in September/October 2004	[79] – [81]
The events of 23 October 2004 and the death of Mr Harley	[82] – [90]
Credit issues	[91] – [104]
Findings on the liability issues in dispute	[105]
Issue 1 – Continued electricity connection to redundant system	[106] – [109]
Issue 2 – Awareness of first defendant of continued electrical connection	[110] – [133]
Issue 3 – Duty of care of first defendant	[134] – [155]
Issue 4 – Whether second defendant had a duty to advise first defendant	[156] – [173]
Issue 5 – Scope of first defendant’s duty of care	[174] – [184]
Issue 6 – Whether first defendant was negligent	[185] – [208]
Issue 7 – Duty of care of second defendant	[209] – [216]
Issue 8 – Scope of second defendant’s duty of care	[217] – [224]
Issue 9 – Whether second defendant was negligent	[225] – [266]
Issue 10 – Causation	[267] – [287]
Issue 11 – Alleged contributory negligence	[288] – [332]
Issue 12 – Apportionment between defendants	[333] – [338]
Disposition	[339]
Costs	[340]
Orders	[341]

Nature of case and background

1. On 26 October 2004 the late Mr Allan Harley was working as a self-employed handyman contractor when he received a fatal electrocution injury. This occurred whilst he was carrying out repair work on the leaking roof of a residential rental property owned by the first defendant Mr Geoffrey Dick, whose property was situated at 364 Abercrombie Street Darlington, NSW. The actual events of the incident were not witnessed.

2. Earlier, in November 2001, the second defendant Mr Paul Stephens, who traded under the name of CTS Plumbing Contractors, had agreed to carry out plumbing work on the roof of the premises. On 23 November 2001, a plumber employed by Mr Stephens carried out work on the premises to decommission the water connections of a redundant solar hot water system and to replace it with a new gas hot water system.

3. There was no dispute that Mr Harley was electrocuted whilst on the roof of the property because a live and active electrical connection had inappropriately remained connected to the redundant solar hot water system and he had somehow come into contact with a live electric current whilst he was in the course of carrying out his work on the roof.

4. The plaintiff, Fiona Giovenco, was the de facto partner of Mr Harley. She brings this claim against each of the defendants, claiming that the death of Mr Harley was due to their negligence. She seeks an award of damages pursuant to s 4 of the Compensation to Relatives Act 1897. The defendants have each denied liability and allege there was contributory negligence on the part of Mr Harley. The defendants have also exchanged cross claims with each other.

Issues for determination

5. The plaintiff identified a combination of 22 factual and legal liability issues including derivative issues for determination. The defendants identified additional issues, some of which overlapped with the issues identified by the plaintiff. I consider that the essential liability questions can be conveniently grouped into the following 12 categories:

Issue 1 : Whether a live and active electricity supply remained connected to the storage unit of the redundant solar hot water system on the premises after the installation of the new gas hot water system;

Issue 2 : Whether the first defendant was aware, or ought to have been aware, that the electricity supply remained connected to the redundant solar hot water storage system after the new gas hot water system had been installed;

Issue 3 : If the first defendant was aware, or ought to have been aware, that the electricity supply had remained connected to the redundant solar hot water system, did he owe a legal duty to ensure that the electricity was disconnected when that system was made redundant;

Issue 4 : Whether the second defendant, Mr Stephens owed a legal duty to advise the first defendant as to the need to disconnect the electricity supply to the redundant solar hot water system after the new gas hot water system had been installed;

Issue 5 : Whether the first defendant, Mr Dick owed a duty of care to the late Allan Harley concerning his work as a handyman on or around the redundant rooftop solar hot water system; if so, what was the scope of that duty; did the scope of the duty extend to ensuring that the redundant solar hot water system was safe to work on and around; did the scope also extend to ensuring that the water storage unit to the redundant solar hot water system did not unnecessarily continue to be connected to the electricity supply;

Issue 6 : Was there a breach of duty of care on the part of the first defendant, and if so, did such breach constitute negligence on the part of the first defendant;

Issue 7: When the second defendant installed the gas hot water system on the first defendant’s premises, ought he to have reasonably foreseen that persons might subsequently work on the redundant solar hot water system, with the attendant risk that injury to such persons might arise, and if so, whether the second defendant owed a duty of care to such persons;

Issue 8 : If it ought to have been apparent to the second defendant that persons might at a later time foreseeably work on the redundant solar hot water system, and thereby become foreseeably exposed to injury such that a duty of care arose, what was the scope of any such duty; were steps required to be taken by the second defendant to reduce the risk of injury to such persons, including by recommending advice and assistance be obtained from a qualified electrician; did the scope of any such duty extend to notifying the owner of the premises that it was necessary to disconnect the continued active flow of electricity to the redundant storage tank of the solar hot water system or alternatively, did the scope of the duty extend to recommending to the owner of the premises that relevant advice and or assistance be obtained from an electrician;

Issue 9 : Was there a breach of duty of care on the part of the second defendant and if so did such breach constitute negligence on the part of the second defendant;

Issue 10 : Whether the death of Mr Harley was caused by the negligence of the defendants, or either of them;

Issue 11 : Whether there was any contributory negligence on the part of Mr Harley and if so, did any such contributory negligence cause or materially contribute to Mr Harley’s death;

Issue 12 : In the event of breach of duty of care being established against both defendants, what is the appropriate apportionment between them;

6. Damages pursuant to s 4 of the Compensation to RelativesAct 1897 have been agreed between the parties in the sum of $350,000.

Summary of findings

7. I have found that at the relevant time, on or about 23 November 2001, a live and active electricity supply remained connected to the redundant solar hot water system after the installation of a new gas hot water system on the premises. I have found that the first defendant was aware, and ought to have been aware, that this was the case. I have found that as a consequence of such awareness on his part, the first defendant owed a legal duty to ensure that the electricity supply was disconnected from the redundant system. I have also found that the second defendant owed a legal duty to advise the first defendant of the need to effect a disconnection of that electricity supply to the redundant system.

8. I have found that the electrocution death of Mr Harley was reasonably foreseeable to both defendants such that a duty of care was owed to Mr Harley by both defendants. I have found that each of the defendants were in breach of their respective duties of care and that the plaintiff has in this regard satisfied the requirements of the Civil Liability Act 2002 with regard to proof of negligence and causation.

9. I have rejected the alleged defence of contributory negligence on the part of Mr Harley, as was raised by each of the defendants. I have found that the defendants have each failed to discharge the onus they carried for proof of such a defence. I have apportioned the respective responsibilities for the death of Mr Harley in the proportion 20 per cent to be borne by the first defendant, Mr Dick, and 80 per cent to be borne by the second defendant, Mr Stephens. The plaintiff is entitled to a verdict and judgment in her favour in the agreed sum of $350,000.

Evidence survey

Overview of the array of evidence

10. The only oral evidence that was called was from:

(a) Mr William Gell, a former resident of neighbouring premises and a one time assistant to Mr Harley;

(b) Mr Geoffrey Dick, the first defendant owner of the premises;

(c) Mr Paul Stephens, the second defendant plumber responsible for the plumbing work that had been carried out on the premises.

11. The plaintiff tendered an array of witness statements and reports gathered by investigating police and inspectors from the Workcover Authority. These were incorporated into the bundle that comprised Exhibit “A”.

12. The parties tendered a number of expert reports. None of these experts were called to give oral evidence for clarification of the opinions set out in their respective reports. Those experts were:

(a) Mr Bill Armstrong, a plumber, whose report was dated 18 September 2003. This report was tendered by the plaintiff and was marked Exhibit “A.13”.

(b) Mr Noel Carmody, an electrician whose reports were dated March 2008 and December 2008. These reports were tendered by the plaintiff and were marked Exhibits “A.14” and “A.15”.

(c) Mr Bruce Blacker, an electrician, whose report was dated 23 November 2008. This report was tendered by the first defendant and was marked first defendant’s Exhibit “1”.

(d) Associate Professor Trevor Blackburn, an electrical engineer, whose report was dated 17 November 2008. This report was tendered by the second defendant and was marked as the second defendant’s Exhibit “1”.

13. Following my review of the array of the evidence it became clear that the determination of the issues in this case was largely dependent on the facts and not so much on the opinions of experts. This was so because, to varying degrees, amongst the experts there was in my view unwarranted speculation concerning the factual assumptions upon which their opinions were based. In my reasons I have referred to the expert evidence where it became relevant to do so.

Oral evidence

Mr William Gell

14. Mr Gell gave a statement to the investigating police on 17 November 2004. That statement was Exhibit “A.8”. In that statement he described how, on an unspecified date in about early October 2004, which was about 6 weeks before he gave his statement to the police, Mr Gell accompanied Mr Harley up onto the roof of Dick’s premises to inspect a problem with the hot hater system. He noticed a broken glass panel and some wires running off to the hot water tank. He said that they felt the pipes on the tank and he felt that they were hot. He recounted the effect of a consequent conversation he had with Mr Harley in which he and Mr Harley had agreed to leave the job and “get an electrician to look at it.” He also recounted hearing Mr Harley make a call on his mobile phone to the landlord and ask him to arrange for an electrician to “come out and look at the problem.”

15. In his oral evidence Mr Gell identified relevant portions of the solar hot water system apparatus shown in the photographs to which he was taken. Mr Gell’s statement was not challenged however his recollections of the relevant events of that inspection were explored. He reiterated his observation of the water pipe feeling hot to touch, he described water dripping from the pipe and he described steam escaping, leading him to conclude that some form of electricity was running through the system at that time. He, in the company of Mr Harley, was concerned about getting an electric shock and they both refrained from touching the system. As I read his evidence, at the time of the trial Mr Gell could not be one hundred per cent certain whether Mr Harley rang the landlord or had rung an electrician after it was decided not to touch the apparatus.

16. Significantly, when Mr Gell was cross-examined, neither defendant suggested to him that his statement was wrong or that it was in any way inaccurate.

Mr Geoffrey Dick, the first defendant

17. Some 8 weeks after Mr Harley’s death, Mr Dick gave a statement to the investigating police on 21 December 2004. That statement was made on the same day that he was interviewed by inspectors from the Workcover Authority. His statement, and the record of interview, comprise Exhibits “A.9” and A.10”.

18. Mr Dick provided a history of the solar hot water system to his tenanted premises. He described a storm that smashed one of the glass solar panels on the roof. It was agreed that the storm had occurred on 14 April 1999. The solar hot water system nevertheless still worked somehow despite that smashed panel. The storm-damaged slate on the roof was repaired under an insurance claim but apparently the hot water system was not repaired on that occasion. Mr Dick then described a problem that arose later, in about 2001 when that solar hot water system developed a leak.

19. He confirmed that his rental agents, LJ Hooker of Newtown, had arranged for a plumber to inspect the leaking system. That plumber, the second defendant, Mr Stephens, advised him that the solar hot water system had a hole in it and was no longer of any use. The tank had rusted through to create a hole. As a result, it was suggested that a new gas hot water system be installed at ground level on the property. That work was later carried out by an employee of Mr Stephens.

20. Mr Dick’s statement went on to describe how, at the beginning of 2004, at a time when Mr Harley was carrying out some other repair work for him on the premises, he discussed with him the presence of a water stain on the ceiling of the upstairs hallway, a problem which Mr Harley indicated to Mr Dick that he would fix for him one day. Mr Dick said that some weeks later he had followed up Mr Harley on the matter of the leak and was told that leaking water was getting through the bolts fixing the solar hot water system framework to the roof. Mr Dick said Mr Harley indicated he would get some sealant to seal the bolts to see if that fixed the problem, and if this did not fix the problem it was flagged that the entire solar hot water system may have to be pulled down.

21. When Mr Dick was interviewed by inspectors from the Workcover Authority he gave further details. He said he had been told of Mr Harley’s death by his letting agent. He confirmed that in about February or March of 2004 he had engaged Mr Harley to carry out work on the premises. He confirmed that before Mr Harley went to the house to investigate the leaking roof it had been leaking for a long time, even before he had purchased the property. He confirmed that he had authorised Mr Harley to try to seal around the rusting mounting bolts of the system and that Mr Harley had told him that it might become necessary to pull the solar heating system off the roof if his attempts at sealing around the mounting bolts did not work. He stated that he was unaware that on the day Mr Harley died he was working on the roof and assumed he was there to seal the bolts but was not sure. He also confirmed that so far as he was aware, neither he nor his agents had provided Mr Harley with instructions in relation to the work he was to undertake on the roof on the premises. In his interview with the Workcover inspector Mr Dick identified the post-incident state of the solar hot water system as having been “half pulled to pieces by the looks of it.” He went on to say he had given no instructions to remove the solar hot water system from the roof.

22. Mr Dick’s oral evidence provided some additional detail. He said he thought he had acquired the property in about 1997 and at that time the solar hot water system was already in place. In answer to a leading question he claimed that he had no appreciation that a solar hot water system such as the one that was on the roof of his property had an electrical connection to it. He identified his last conversation with Mr Harley, in which he had followed up Mr Harley about fixing the leak, as having occurred some 6 to 8 weeks after the initial conversation about the problem. He confirmed he had twice been up on the roof of the property himself, once when he bought the property and once when he inspected the damage from the storm when making the insurance claim. He was unable to identify the dates of these occasions. He conceded that it was possible that on his first rooftop inspection of the property he would have seen wires from the solar hot water system into the house. Significantly, Mr Dick denied ever having been told, either by Mr Harley or by his letting agents, that an electrician would be required to assist in dismantling the solar hot water system on the roof. He denied knowledge of a Mr Sama, an electrician.

23. Mr Dick explained that the reason he did not replace the solar hot water system with another solar hot water system was that this was “too expensive.”

24. He claimed that he did not expect Mr Harley to pull down the hot water system to seal the mounting bolts, explaining that would be a major expense he would have been expected to have been advised of beforehand. He claimed not to have given “a second thought” to whether or not the solar hot water system had an electrical back-up to the heating energy obtained from the sun. He said that after the hailstorm damage an insurance loss adjuster had inspected the roof and told him of the damage to a solar panel on the roof. He said he later he went up to have a look because he was “just being nosey” and satisfied himself that the insurance loss adjuster “wasn’t trying to pull the wool over” his eyes. He denied having been made aware of tenant’s complaints about the quality of the hot water to the premises until about November 2001, when there were such complaints. He confirmed that these complaints led to the engagement of Mr Stephens to install the new gas hot water system. He said he gave Mr Stephens the go ahead to carry out the installation of the new gas system after considering his quotation. He agreed that he had understood the quotation from Mr Stephens to refer to only disconnecting the hot and cold water from the existing hot water system. He confirmed that Mr Stephens had not given him any advice about retaining the services or assistance of an electrician to complete the redundancy work. On the solar hot water system.

25. Significantly, in his oral evidence Mr Dick sought to materially add to his statement and record of interview of 21 December 2004 by claiming a third conversation with Mr Harley about the works in question. He claimed that a recollection of this later conversation came to him in January of 2009, when he was giving the matter some thought and recalled Mr Harley ringing him, but he was unsure as to what the call was about. On behalf of the plaintiff it was suggested that this recollection was created by Mr Dick to make his evidence fit together. Significantly, he was unable to explain how, despite two thorough interviews with police officers and Workcover inspectors some 8 weeks after Mr Harley’s death, he was not able to remember a material conversation he had with Mr Harley until some 4 years later, and had only raised it with his legal advisors on the day he gave his evidence at the trial of these proceedings. He denied structuring his evidence to best fit a defence and he denied structuring his statements to minimise the prospect of responsibility for Mr Harley’s death being attributed to him. The plaintiff submitted that Mr Dick’s evidence in this regard was disingenuous.

26. Mr Dick agreed that the possibility of needing to have the solar hot water system removed in order to properly seal the roof might have been raised with him. That evidence did not appear to sit well with his earlier evidence that he that all he understood that Mr Harley was going to do was to get up on the roof and put some silicone or sealer around the bolts. When asked to explain the sequence of mechanical steps involved in that process he said “…Climb up a ladder and put some silicone around it, I suppose. I didn’t think about it. I don’t know.” He later said there was no discussion with Mr Harley about the scope of his work on the roof which included removal of the solar hot water system. When pressed about this subject, Mr Dick was definite that there was no discussion with Mr Harley about removing the solar hot water system. He initially adamantly denied the possibility that his recollections could be erroneous. He ultimately conceded the possibility that his recollections were being shaped by a desire to minimise his role in the responsibility for Mr Harley’s death, however he then went on to deny the truth of that proposition.

Mr Paul Stephens, the second defendant

27. Mr Stephens, the second defendant, was an experienced plumber. He had been called to the premises because there were options under considerations for replacing the hot water service on the premises. He had received a telephone call from the managing agents asking for him to go to the property to investigate a problem with the hot water system. He was the first tradesman to arrive on the job. He later observed the arrival on the property of an electrician, Mr Joe Sama, whom he knew to be someone who did occasional electrical work for Mr Dick’s letting agents, LJ Hooker of Newtown. Mr Stephens said that he understood the electrician was there to quote on an alternative electrical system. It was not made clear whether this evidence referred to a new electrical hot water system or to a new electrical system for the premises. Mr Stephens said he did not know whether that electrician, Mr Joe Sama, went up onto the roof or not, but he did say that the electrician was not up on the roof whilst he was there.

28. Mr Stephens recounted his observation, following his inspection of the roof. He observed water to be leaking from a metal hot water cylinder that had rusted through so that it was not holding the pressure anymore and it was leaking through its casing. He advised the agents that a new system was required. He was given Mr Dick’s telephone number and he then had a conversation with Mr Dick and advised him he needed a new hot water system because the existing system was rusted and leaking. He stated that he turned off the water supply to the solar hot water system. He said that knew the solar hot water system was connected to the electricity supply but he did not want to, and would not touch the electrical supply to the solar hot water system. Mr Stephens confirmed that Mr Dick did not seek any advice from him concerning the electrical aspects of the installation of the solar hot water system.

29. Mr Stephens said he recalled being on the roof on the day he attended the premises. He recalled turning off the cold water tap which supplied water to the solar hot water system because water was continually dripping down the roof, into the gutters and running down the street and was wasting water. He acknowledged that if the water supply to the system was turned off without touching the power “…it could be a problem.” The nature of the problem was not further defined. Mr Stephens did say that some freestanding hot water storage tanks which developed leaks, often from the top, could remain partially filled after draining, thus leaving the electrical heating elements still submerged in water. This evidence did not relate to the specific factual circumstances of the premises in question. Instead, it was given in hypothetical terms.

30. On the occasion he turned off the cold water supply to the solar hot water system, Mr Stephens stated that he did not otherwise interfere with the system. He said he recalled hearing of a solar panel to that system being cracked but did not take much notice of it. Mr Stephens said that he delivered the new gas hot water system to the premises and it was his employee, Mr Harders who carried out the necessary work. According to Mr Stephens, neither he nor Mr Harders returned to the roof top after the installation of the new system. Part of the work that was involved in that installation was to disconnect the pipes on the solar hot water system. He did not give Mr Harders any instructions to go up onto the roof but he observed Mr Harders go onto the roof and he said that at one stage they were there together. He said they “disconnected the hot and cold water pipes to the solar hot water system.” He also said he was not on the site all the time, having left Mr Harders to carry out some of the work that was required.

31. The matter of the disconnection of the water pipes turned out to be some importance to the case. The description given by Mr Stephens as to what was involved in the disconnection of the water supply was as follows:

“Q. Does the disconnection of that kind permit the remaining water in the tank to drain down if the taps in the house are activated?
A. Yes. What we needed to do, you shut off the whole water supply to the tank and to reconnect into the hot water for the new position for the tank, if we hadn’t have squeezed off the hot water coming out of the solar hart we would have had water spraying out everywhere. So basically that pipe up there was capped off. The hot water pipe coming out of the solar hart.

Q. I’m not quite following your terminology. You say on the one had “squeezed” which to me denotes a crimping mechanism. And then you refer to it being “capped off” which denotes a sealing mechanism. Which one are you referring to?
A. Yes, it’s capped off. It’s a kinko nut and a screwed cap, basically. All we did was disconnect the pipe - the hot water pipe off the solar and we cap it off. So it closes that end, otherwise if we turn the hot water back on we are going to have water shooting out of that pipe, or feeding back - back feeding into the existing solar.

Q. So I can be clear on what that means, does the capping which you’ve described prevent water getting into the solar tank?
A. Yes.

Q. For heating?
A. Yes.

Q. And does it prevent the water that remains in the tank from draining down into the household when the household taps are turned on?
A. Yes.

Q. How does it do that?
A. Basically, all we did was disconnect - there’s two pipes, there’s the cold going in, the hot coming out. We just capped them both off so they were physically disconnected from that tank.

Q. So the effect of what you did was to leave a quantity of water in the tank?
A. Yes.”

32. When cross-examined, Mr Stephens stated that he did not have a clear recollection of carrying out that capping work which he had described in the evidence I have cited. When shown the photographs comprising Exhibit “E”, Mr Stephens was unable to identify any photographic evidence that showed where the pipes had been capped. He prefaced that evidence with the comment that the photographs were not entirely clear. His evidence was that the capping work needed to be done to prevent the back feeding of water into some part of the system that was left incompletely disconnected. I infer from his evidence that Mr Stephens based his evidence on the capping of the pipes on assumptions that the work was done, rather than upon any actual recollection that this was so.

33. There was an issue as to whether the solar hot water storage tank had been drained by either Mr Stephens or by Mr Harders. The evidence of Mr Stephens on this topic was as follows:

“Q. So that we all understand, as well as capping the system, did you empty out the tank?
A. The tank was emptying itself out because it was leaking.

Q. So did you just leave it to leak itself out?
A. Yes.

Q. So you didn’t actually drain the tank?
A. No.

Q. You are agreeing with me?
A. Yes.

Q. Again is that an estimate as to what you would have done or is that an actual recollection?
A. We definitely didn’t drain it. Well, yes well the tank was leaking so and we weren’t - the quote was to put the new gas hot water system in. There was no quote of disconnect and remove the solar off the roof.

Q. Let me show you the quote in the very last item on it - if the witness could have exhibit C. Could you just read to yourself the very last line of the quote?
A. Yes.

Q. We can agree that you quoted that you were going to drain it?
A. Yes.”

34. When questioned further on whether the tank had in fact been drained, it became clear that the tank was left with water in it on the assumption that it would drain itself. When this issue was explored in closer detail it was clear that Mr Stephens could not recall the location of the leak in the tank. That location was critical to determining whether the tank would drain itself or alternatively, whether it would remain filled with water. Mr Stephens stated the opinion that if the tank had remained filled, evaporation of the water would have occurred. If that assumption was correct, he agreed this process would have at some stage exposed the electrical heating element component within the tank.

35. In retrospect Mr Stephens agreed that when he returned to the premises to disconnect the water supply to the solar hot water system, he created the prospect of the tank eventually running dry, or if the tank was left undrained, he would have left a tank full of water sitting on the roof. Mr Stephens was asked whether he could explain how, some three years after the work was undertaken, the tank would have been filled with water. He stated it was possible that the water in the tank could have come from the glass panels on the roof because there were big coils of water within those panels and he had not drained those panels so that the water in those panels would have still remained connected to the tank. He did not know if such glass panels would have still been heating and depositing hot water into the tank.

36. Mr Stephens said that after the job was completed he did not return to check that the work was done satisfactorily as he trusted Mr Harders to finish off the job. He confirmed that before carrying out the work he did not inspect the electrical board for the premises. He also confirmed that he did not speak to Mr Dick about the electrical component of the solar hot water system because he was not an electrician. He hypothetically agreed that if he was an electrician, which he was not, he would be telling the owner that the solar hot water system needed to be disconnected from the electricity supply.

37. Mr Stephens agreed with the proposition that in circumstances where the system had been made redundant, the contextual reference to the system being the solar hot water system, if there was still a live electric current running to it, it would have been appropriate to advise the landlord of such a state of affairs. He could not recall saying anything to Mr Dick as to the continued presence of a live and active electrical current to the solar hot water system at the conclusion of his own work. That position was consistent with the scope of his quotation for his work. When the attention of Mr Stephens was drawn to his evidence that if the tank had drained, this could have created the prospect of the element in the tank burning dry, he stated, obviously in hindsight, “I assume, which I probably shouldn’t, that the electrical matters were going to be taken care of.”

38. In the context in which the last cited evidence was given, I have taken the reference to the assumption stated by Mr Stephens to be a reference to an assumption in the past tense and not in the present tense. That answer was consistent with other evidence elicited from Mr Stephens by Mr Hewitt SC to the effect that he, Mr Stephens, had assumed that Mr Dick was talking to the electrician as he, Mr Stephens had only quoted on a new gas hot water system.

Factual reports

39. The factual description of the incident as set out in the Workcover factual report stated:

“Unable to determine what victim was doing at the time of incident. However a solar hot water unit with plumbing disconnected was within the vicinity of the victim. The terminal cover of the solar hot water unit had been removed exposing the connections to inadvertent contact. Unable to determine from persons on site if supply to the hot water unit was energised at the time of the fatality.”

40. The report went on to state:

“Unable to determine if fatality was caused by electric shock.”

41. The police investigation proceeded upon the premise that Mr Harley had been electrocuted. An ambulance report described the problem as being cardiac / respiratory arrest. There was no scope for resuscitation.

42. The inspectors from Workcover ascertained that there was no labelling evident on the wall mounted fuse box within the premises. There was no electrical safety cut out switch installed. An inspection of the roof revealed the storage tank of the solar hot water system to have been dislodged from its framework cradle at one end and one solar panel appeared damaged with cracked glass and it was bent up from its anchorage points on the roof. Plastic conduit was seen to traverse a path across the roof.

43. A statement made by an investigating police officer suggested that the damaged glass solar panel on the roof had been damaged for some time because it was evident that dirt had accumulated on the broken shards of glass that formed part of the unit. Significantly, that police officer described the hot water storage tank in the following terms:

“… The reservoir tank had broken from its mount at the southern end, however had remained attached at the northern end. As a result the tank was sitting at an angle with the southern end sitting on the rooftop and the northern end still elevated. It appeared to me that the tank had fallen recently, as the water that would normally have been retained in the tank had spread all over the sides of the adjoined roof. …”

44. The police statement did not identify any definite sites of electrocution injury to Mr Harley’s body when it was observed at the scene. No post-mortem medical reports were tendered. No death certificate or coronial inquiry findings were tendered, although it was apparent from Exhibit “A’ that the coroner had at some stage been involved and his findings were made available to Mr Armstrong, the expert plumber engaged by the solicitor for the plaintiff.

Expert reports

45. In the paragraphs that follow I set out the essence of the opinions contained in the expert reports that were tendered in the proceedings.

Mr Bill Armstrong, a plumber

46. The report of Mr Armstrong indicates at the time of the incident, it would have been common industry practice to disconnect both power and water to an existing hot water unit when replacing that system and this would have required the retention of a licensed electrician to disconnect the power to a solar roof mounted hot water system. There was no scope for controversy within that statement. There were other statements made in the report of Mr Armstrong which were based on assumptions and which involved speculation which in turn indicated that those latter matters had limited probative value.

Mr Noel Carmody, an electrician

47. The plaintiff tendered two reports from Mr Noel Carmody, a consultant electrician. Mr Carmody’s first report outlined a general explanation as to how a solar hot water system operated. The report raised the prospect that the plumber in question may have installed the new gas hot water system to operate in parallel to the existing solar hot water system. It should be noted that there was no basis to infer this from within the array of factual evidence. The evidence of Mr Stephens and Mr Dick did not support that proposition. Whilst it is possible that Mr Harders may have achieved that result whilst carrying out his work, which was not checked by Mr Stephens, there was no evidentiary basis for such a view. I consider the suggestion raised by Mr Carmody to be non-probative and entirely speculative.

48. Mr Carmody expressed the view that if the redundant hot water system in question had been isolated from the electricity supply to the premises, the electrocution death of Mr Harley would not have occurred. He identified an inter-relationship between plumbing and electrical connections on the solar hot water system such that in his view, it would have been prudent for the plumber installing the new system to call an electrician to ensure compliance with the applicable wiring rules. Mr Carmody stated that a plumber installing a new hot water system in 2001 ought to have been aware that there was already another hot water system in place. That view was confirmed by Mr Stephens, who stated that he was aware that this was the situation at the premises. Mr Carmody cited the Electrical Safety (Electrical Installations) Regulations 1998, otherwise known as the Wiring Rules, in force at the time but repealed and subsequently replaced on 31 August 2004 as support for his opinion that when the redundant solar hot water service was taken out of service it should have been disconnected from the electricity supply. Those rules do not represent statutory counts but they do demonstrate a prudent course to be adopted in disconnecting disused electrical installations.

49. The supplementary report by Mr Carmody dealt with his responses to matters raised in an expert’s report prepared for the first defendant by Associate Professor Blackburn. I will refer to his comments in that regard when analysing the defendant’s expert evidence.

Mr Bruce Blacker, an electrician

50. The first defendant tendered a report dated 23 November 2008 from Mr Bruce Blacker, a consultant electrician. Mr Blacker’s report listed a number of documents some of which were not in evidence in these proceedings. His report was based on a number assumptions, one being that it appeared the covering plate over the electrical wiring on the solar water tank was removed by Mr Harley, thereby exposing live cables and terminals thus creating a hazard. I set out my analysis of that assumption in my reasons concerning the contributory negligence arguments raised by the defendants. Mr Blacker also expressed the view that it was not necessary for Mr Harley to remove the covering plate of that terminal box on the unit in order to seal the fixing bolts which mounted the structure on the roof. He also expressed the view that, provided the wiring of the redundant hot water system was in good order, there was no requirement for disused electrical equipment, here being a reference to the redundant solar hot water system, to be removed or to have its electrical supply disconnected. In this regard he was in agreement with the opinions of Associate Professor Blackburn. The assumptions underpinning those views require analysis.

Associate Professor Trevor Blackburn, an electrical engineer

51. The second defendant tendered a report dated 17 November 2008 from Associate Professor Trevor Blackburn, a consultant electrical engineer. Associate Professor Blackburn identified a number of assumptions upon which he based his opinions. A number of those assumptions had been provided to him by Mr Stephens and were ultimately shown to be unfounded or incorrect. It was assumed that Mr Harley had removed the cover plate of the unit’s terminal box containing electrical wiring on the tank thus exposing live wiring. He postulated the possibility that Mr Harley may have turned on the water supply to the tank and thereby restarted the water leak. It was also assumed that the structure collapsed causing substantial quantities of water flowing over the roof and resulting in the electrocution of Mr Harley. Associate Professor Blackburn expressed the opinion that Mr Stephens was not required to warn Mr Dick of the need to disconnect the old solar hot water system even though he thought that leaving it connected in its redundant state was undesirable and inefficient. He said there was no mandatory requirement to disconnect it. Associate Professor Blackburn expressed the opinion that Mr Harley was partly responsible for the incident in question. These opinions will be examined in the course of identifying my findings on the key issues calling for decision.

52. Associate Professor Blackburn reviewed the materials provided to him and confirmed that he could not determine the cause and time of Mr Harley’s electrocution nor could he determine the exact way in which the electrocution occurred. Notwithstanding this, he went on to postulate that the photographs taken by the police appear to show some burns to Mr Harley’s hands which may have been consistent with electrical contact with live conductors, but he also noted that the precise current path through Mr Harley’s body has not been determined. He noted that the possible opportunities for Mr Harley to come into contact with electricity were direct contact with the electrical wiring of the terminal box on the solar hot water storage unit or due to an extended range of potential electrical contact from the live wires in the terminal box due to the presence of water on the roof acting as an electrical conductor. He further explained that water on the skin acted to increase the severity of an electric shock by decreasing the electrical contact resistance of the skin. A number of other possibilities were canvassed and all of these involved speculation because of the limited nature of the factual evidence. Associate Professor Blackburn raised some possible causes for the electrocution of Mr Harley which bear consideration with regard to the allegations made by the defendants concerning alleged contributory negligence.

53. Associate Professor Blackburn analysed the set up of the gas hot water service installation on the premises and confirmed that the operation of it was not at all dependent on any connection to an electrical supply. He confirmed that the installation of that system did not require Mr Stephens to access the electricity supply. He also confirmed that the earthing system for electrical supply to the house was not dependent on an earthing connection between the supply source and the plumbing pipes, as sometimes occurs. The significance of this observation was that at the time Mr Stephens and Mr Harders worked on the plumbing they would not have had an electrical safety reason cutting the electricity supply to the solar hot water system on account of pipe earthing issues. This technical details of this issue were not discussed in the evidence given by Mr Stephens, apart from noting that he took volt meters with him on sites in case he came across old power lines so that he could check them. He did not give evidence of having inspected or examined the pipes for the presence of electrical current as was described in the observations of Associate Professor Blackburn.

54. In making an argument against the potential liability of Mr Stephens, Associate Professor Blackburn pointed out that on the return visit to the site by Mr Stephens to install the gas hot water system on the premises there was no need for Mr Stephens to go onto the roof. This was because the water supply to the solar hot water system had already been turned off and his remaining gas installation work was only required to be carried out at ground level. In this regard he also pointed out that because there was no electrical connection required for the new gas system, therefore there was also no need for Mr Stephens to examine the electrical switchboard.

55. Associate Professor Blackburn constructed his pivotal assumption that Mr Harley had removed the cover plate of the terminal box to the solar hot water storage unit. On the basis of that assumption he arrived at what he regarded to be the “inescapable conclusion that the accident was partly self-inflicted” by Mr Harley. He also postulated that the “collapse of the tank structure was most likely instigated by Mr Harley performing some work on the structure legs to try to prevent water leakage through the roof.”

56. Associate Professor Blackburn discussed some issues which arose from the reports of the other experts. These issues will be analysed where relevant and necessary when I set out my findings on the liability issues calling for decision.

Facts

57. Before addressing the issues calling for determination it is necessary to review the non-controversial factual chronology concerning the history of the electricity supply to the redundant solar hot water system located on the roof of the premises and to also review the events that led up to the electrocution death of Mr Harley.

Ownership, use and condition of the premises

58. In about 1997 Mr Dick purchased the property at 334 Abercrombie Street Darlington and thereafter continued his ownership of the premises until the time of Mr Harley’s death. The premises were rented out to tenants through Mr Dick’s agents, L J Hooker, Newtown. The premises had been fitted with a roof mounted solar hot water system which had incorporated within it a hot water storage unit.

59. On 14 April 1999 a significant hailstorm occurred in Sydney. At that time one of the two glass solar panels on the roof of the premises became damaged. At some time after that hailstorm Mr Dick went onto the roof of the premises and inspected the damage occasioned by that storm. He did so in connection with an insurance claim in order to check on the reported damage. The plaintiff asserted that at the time of his inspection of the roof after the hailstorm, Mr Dick should have known that the solar hot water system was partially powered by electricity. Mr Stephens supported that submission. Mr Dick contended that such an inference should not be drawn.

A problem with the solar hot water service in the premises

60. In November 2001 Mr Dick’s agents L J Hooker received a complaint from tenants of the property regarding the problematic operation of the solar hot water system in the premises. There was no evidence from the agents or from those tenants to describe the precise nature of the problem with the hot water system. Mr Dick’s evidence was that his tenants had complained that the system had been running out of hot water.

Defendants’ knowledge concerning problem with hot water service

61. Following complaints by his tenants concerning the hot water, Mr Dick’s agents, L J Hooker, engaged Mr Stephens to carry out a plumbing inspection of the hot water system in order to identify the problem. Mr Dick said he had been told by the plumber that the hot water service had developed a leak. The plaintiff submitted that an inference should be drawn from the inspection of the hot water service by Mr Stephens, that in the circumstances, the plumber in question was Mr Stephens.

62. On or shortly before 21 November 2001 Mr Stephens attended the premises and saw Mr Joe Sama, an electrician in attendance on the premises. The plaintiff submitted that the inference should be drawn that Mr Sama was engaged by L J Hooker as agent of Mr Dick to inspect and report upon the state of the hot water service and advise on the installation of an electric hot water system if one was needed to replace the existing solar hot water system. The plaintiff submitted that there would have been no other reason for Mr Sama to be there on that occasion. Mr Stephen described seeing Mr Sama in the vicinity of the fuse box of the premises.

63. The plaintiff and Mr Dick maintained that there was no evidence that Mr Sama did anything to any of the fuses in the fuse box on the occasion of his attendance. On behalf of Mr Stephens it was submitted that it should be inferred that Mr Sama removed the fuse to allow for the hot water system to be inspected by both Mr Stephens and Mr Sama. That submission was not supported by the evidence of Mr Stephens.

64. There was no evidence that Mr Sama went onto the roof of the premises on the occasion of his visit. However there is evidence that Mr Stephens did so and on that occasion he personally did nothing to interfere with the electrical operation of the hot water system by way of disabling it or disconnecting it from the electricity supply although Mr Stephens said that he did turn off the water tap to the system to save water from being wasted by leakage.

65. Following his roof inspection Mr Stephens telephoned the agent at L J Hooker and he also rang Mr Dick who had asked him for a quotation of the cost of providing a new hot water system. That quotation, which was dated 21 November 2001, was accepted by Mr Dick. It was tendered as Exhibit “C.” It is plain from the terms of the quotation that Mr Stephens was only quoting for the work involved in the disconnection of the water connections to that system as well as quoting for drainage of water from the rusted storage tank which formed part of that system.

Installation of a new gas hot water system

66. On 23 November 2001, Mr Stephens delivered to the premises a gas hot water system to be installed at the ground level at the rear of the premises. Some part of the installation of the gas hot water system was carried out by Mr Harders who was an employee of Mr Stephens. It is claimed by Mr Stephens that either he or Mr Harders disconnected the water supply to the solar hot water system on the occasion of the new installation. That claim is disputed by the plaintiff and also by Mr Dick. They pointed out that Mr Stephen was unable to identify where on the photographic evidence the claimed capping of the pipes had been carried out to terminate the water supply to the redundant system. In this context it was also pointed out that hot water was still found to have been leaking from the system on the roof some 3 years later when Mr Gell and Mr Harley inspected the roof, thereby suggesting that disconnection of the water supply to the redundant system had not occurred as was quoted for, and invoiced by Mr Stephens and paid for by Mr Dick when the new gas hot water system was installed.

67. On the occasion of the installation of the new gas hot water system neither Mr Harders nor Mr Stephens inspected the electrical power board within the premises. Similarly, during the installation of the new gas hot water system, neither Mr Harders nor Mr Stephens took any steps to disconnect the electricity supply to the solar hot water system. This was not unexpected in the circumstances as neither of them were qualified to do so. Neither Mr Harders nor Mr Stephens had drained the water from the solar hot water system notwithstanding that such drainage had been specified in the quotation and invoice prepared by Mr Stephens.

68. The parties were in agreement that at the time Mr Stephens quoted for the work of installing a gas hot water system, and at the time that work was carried out, Mr Stephens did not speak to Mr Dick to specifically raise with him the need to have an electrician disconnect the electricity supply to the redundant solar hot water system on the roof. It was also agreed that no advice was given by Mr Stephen to Mr Dick as to the need to seek advice from an electrician concerning what was needed to be done in the circumstances. In this regard the Mr Stephens asserts he was under no duty to so warn in this regard particularly as Mr Stephens was a plumber.

69. Mr Stephens and Mr Harders installed a gas hot water service on a concrete slab located on the ground at the rear of the premises. Once that installation was complete the solar hot water system located on the roof of the premises was regarded by both Mr Dick and by Mr Stephens as being redundant.

70. The plaintiff and Mr Dick agreed that if advice had been given to Mr Dick to the effect that he needed to either seek advice from an electrician or that he needed to have an electrician attend and disconnect the supply of electricity to the solar hot water system, then Mr Dick would have acted on that advice and would have obtained the services of an electrician, either by arranging this himself or by arranging it through his agents. Mr Dick agreed that once he had paid the invoice from Mr Stephens for the quoted work he had acted on the assumption that all hot water issues on the premises had been dealt with.

Mr Harley’s involvement with the premises

71. In 2003 and 2004, at the request of Mr Dick, Mr Harley had performed a number of small handyman type tasks at the premises. These tasks included the affixing of tiles in a bathroom, fixing a tap washer and some woodwork at the front of the premises. There was no paperwork associated with these tasks and payment had been made in cash. At an unspecified point in time, Mr Dick and Mr Harley discussed the presence of some water stains in the ceiling of the upstairs hallway of the premises. In this regard it was agreed that Mr Harley would look at the roof of the premises to investigate and fix the problem.

72. In particular, Mr Dick stated that Mr Harley had informed him that he would investigate the possible causes of the stain in the ceiling. Mr Dick then agreed that Mr Harley would attempt to effect repairs to the roof in order to fix this problem. Mr Dick claimed that he did not approve the removal of the redundant hot water system at the initial stage of Mr Harley’s work although Mr Harley had mentioned that this may be necessary. If the solar hot water system was truly redundant at that stage it is difficult to envisage a sound reason as to why it should not have been removed. No time frame or supervisory arrangements were made by Mr Dick with regard to Mr Harley’s proposed work.

73. The plaintiff claims that the removal of the redundant hot water system, either permanently or so as to better fix leaking bolt holes at its base, was within the scope of the work that was discussed between Mr Dick and Mr Harley. Mr Dick disputes that this was so and claims that he and Mr Harley only discussed the possibility of removing the solar panel but only in the context that this might be required if sealing around the bolts at the base of the roof mounted storage unit stand was not effective in dealing with the leak. In this regard Mr Dick claims that no instructions were given to Mr Harley to remove the solar hot water service and he claims that neither was any agreement reached that Mr Harley would proceed with any work in that regard without further recourse to Mr Dick, who asserted that Mr Harley was not authorised to remove the solar hot water system.

74. The plaintiff pointed out that it is not possible to test Mr Dick’s account of these events in the absence of an account from Mr Harley or from some other witness. The credibility of Mr Dick’s evidence on these and other matters was challenged by the plaintiff.

75. Whatever view Mr Dick had of the last critical conversation he had with Mr Harley, it is clear that he envisaged that Mr Harley would be performing some type of dismantling work on the roof to seal it and that this would have necessarily involved some component parts of the redundant solar hot water system, otherwise it would not have been possible for Mr Harley to carry out his investigations with the aim of then applying a silicone seal around the mounting bolts at the base of the unit.

76. The plaintiff claims that due to the alleged flawed recollections of Mr Dick, is not possible to determine precisely how many conversations regarding the work to be done on the roof took place between Mr Dick and Mr Harley, nor it possible to determine the times at which those conversations took place or indeed the precise contents of those conversations.

77. In this regard, Mr Dick was adamant that in none of the conversations with Mr Harley, did he instruct or authorise removal of the solar hot water service. He claims that he had no knowledge that Mr Harley was on the roof on the day of his death and had no knowledge that he was attempting to remove the solar hot water service on that occasion, if that was what Mr Harley was in fact doing.

78. At least one of the conversations that took place between Mr Dick and Mr Harley was initiated by Mr Dick. This involved Mr Dick following up Mr Harley to ascertain when he would complete the required work. In my view, apart from providing confirmatory evidence that Mr Dick was content to trust Mr Harley to make his own arrangements as to the timing of the works without the need for supervision or instruction, nothing else of significance turns on this fact.

The Gell and Harley inspection in September/October 2004

79. In about late September or early October 2004, Mr Harley and Mr Gell inspected the solar hot water system on the roof. At this time Mr Gell observed water to be leaking from a pipe that was steaming and which was also hot to touch. A conversation then ensued between Mr Gell and Mr Harley. At the trial, Mr Gell gave account of that conversation. This evidence was in summary or conclusion form and was to the effect that there was a risk of working on the hot water system whilst it was potentially still electrified. That evidence in summary and conclusion form has to be viewed in the context of a factual statement that Mr Gell gave to the investigating police in 2004. That was likely to be more accurate than his recollection at the trial.

80. Mr Gell said that he had observed Mr Harley to make a call on his mobile telephone. Both the plaintiff and Mr Stephens submitted that the overwhelming inference from this evidence is that the call was made to Mr Dick and not to an electrician or another party.

81. At the trial Mr Gell acknowledged that he had an imperfect recollection of these events and he said he had not heard the whole conversation. The plaintiff and Mr Stephens asserted that the conversation in question involved the topics of the roof and electricity but Mr Dick disputed this and claimed that Mr Gell was not able to hear what was said in that conversation.

The events of 23 October 2004 and the death of Mr Harley

82. On the morning of 23 October 2004 Mr Harley left his home in order to work on the roof of the subject premises. He was seen by Mr Sams to be working on the roof of the premises that morning in conjunction with a significant flow of water coming from the roof. Later Mr Harley went home for lunch.

83. The evidence of the plaintiff was that at about 2:30pm on that day Mr Harley returned home, changed into shorts and a T-shirt and then returned to work at the premises. This evidence was contained in a statement made by the plaintiff to the investigating police and also in a record of interview taken by the police which comprised Exhibit “A.11”. There, the plaintiff recounted that Mr Harley had said something to her to the effect that he had to call an electrician.

84. Later on that day Ms Symonds opened the back gate of the premises to allow Mr Harley to obtain access to the roof. There were some minor discrepancies as to time of this event but I do not consider this to be significant. Later on that day Ms Sams observed Mr Harley to be present on the roof of the premises wearing white overalls. She had observed that there had been some noise and some “thumping about”. It was suggested from these facts that the hot water system had fallen over and that water was overflowing the gutter from a water supply.

85. At an unknown time on the afternoon of 23 October 2004, Mr Harley died whilst he was on the roof of the premises. It was agreed that the cause of his death was by electrocution. The source of the electricity that had electrocuted him was the electricity that was then still connected to the redundant solar hot water system. The precise sequence and mechanism of the events that surrounded Mr Harley’s death was not witnessed by any person and these events remain unknown. The precise mechanism by which the electrocution occurred, including the electric current flow pathway and contact point on Mr Harley’s body for the passage of the electric current that fatally injured him is not known.

86. It remains unclear as to precisely what Mr Harley was doing and precisely where he was at the time he was electrocuted. Associate Professor Blackburn has postulated that Mr Harley had somehow turned on the water supply and refilled the tank causing it to fall off its mounting stand. Whilst that is a possible and indeed plausible explanation it is not the only one and it is not possible to conclude that this was the mechanism although it does provide a potential explanation for the electrocution involving water as a conductor.

87. There was a factual investigation undertaken by police and Workcover inspectors. Whilst those investigations undoubtedly fulfilled the formal requirements of those agencies, the tendered parts of the products of those investigations were of limited probative value as evidence in the proceedings, containing hearsay, unsubstantiated assumptions and speculation, as would be expected in an investigation of the facts surrounding an unwitnessed death. This analysis is not a criticism of the work of those agencies, but the product of those investigations highlights the different consideration that applied to those undertakings, compared to the requirements of proof, even on the civil standard of the balance of probabilities.

88. The defendants have argued that Mr Harley had removed the cover to the electrical panel on the storage tank of the redundant solar hot water system. This was said to be an inference arising from the appearance and the location of these items as shown in the photographs and in the police statements. This conclusion is somewhat speculative and problematic in the absence of evidence as to what was encountered and what was observed at the scene in conjunction with what is seen on the photographs.

89. The defendants submitted that Mr Harley had come into contact with the electrical system within the solar hot water system by physically touching it or touching it with one of his work tools in the knowledge that he was touching a live electrical connection. Whilst it is undoubtedly correct that Mr Harley had somehow come into contact with live electricity, I reject the submission that these facts necessarily require an inference that he did so knowingly. The plaintiff submits that the opposite inference is more likely in the circumstances because an experienced handyman was unlikely to knowingly touch live electricity. The plaintiff points to the earlier cited explanation of Associate Professor Blackburn as the more likely explanation.

90. The defendants assert that at all relevant times Mr Harley was aware that the hot water system was dangerous to work upon because it was electrified. The plaintiff disputed that assertion, which was based on inferences which the defendants sought to have drawn from the plaintiff’s statement to the police which refers to Mr Harley’s stated need to call an electrician. In contrast, the plaintiff maintained that it is unreasonable to draw the asserted inference in the circumstances, and argued instead that the appropriate inference to be drawn on the evidence is that Mr Dick had a conversation with Mr Harley who was then misled with regard to safety issues as a result of that conversation. Many of the inferences sought to be drawn by the parties involve matters of incompletely reasoned or unreasoned competing speculations.

Credit issues

Plaintiff

91. The plaintiff did not give oral evidence. The credibility of her tendered statement was not challenged although there was some debate as to what liability inferences should be drawn from that evidence on the issue of Mr Harley’s state of awareness of the electrical risks he faced in carrying out the work in question on Mr Dick’s premises. I will deal with those inferences when recording my findings of fact on the matters in issue.

Mr Gell

92. There was a contest over the interpretation of the evidence given by Mr Gell concerning his observations that impacted on the liability issues. There was no direct challenge to the credibility of Mr Gell’s testimony. Instead, the debate centred around the reliability of that testimony because of concessions he made concerning his state of recollection as at the time of the trial as distinct from the time he made a statement to the investigating police.

93. I found Mr Gell to be a credible witness who, when giving his evidence, took obvious care to differentiate between what he could recall and what he could not recall as at the date of the trial as distinct from what was recorded in his statements that were made closer in time to the events in question. The parties made disparate submissions on the reliability of Mr Gell’s testimony. I will analyse the specific matters at issue within the evidence of Mr Gell when recording the inferences I draw from his evidence concerning the factual issues to be determined. In the meantime I record my view that he gave his evidence to the best of his recollection and in a way that I considered to be truthful.

Mr Dick

94. The plaintiff challenged the credibility of the evidence of Mr Dick on a number of aspects of his testimony. For the reasons that follow, I find that the plaintiff has largely substantiated the criticisms that were made concerning the credibility of Mr Dick’s testimony.

95. I find that Mr Dick was evasively defensive in answering the questions of the investigating police and the investigating Workcover inspectors during the course of their factual investigations into the death of Mr Harley. I find that he did so in order to deflect potential criticisms from being made against him concerning any responsibility that may have been thought to rest with him concerning the death of Mr Harley. I also consider that despite his denials, he adopted a similar approach to the evidence he gave in these proceedings. I find that he did so in order to shape his evidence to best fit his defence of the plaintiff’s claim against him.

96. I also find that Mr Dick was disingenuous in his denial of any awareness that the redundant solar hot water system on the premises had an electrical connection. I base this conclusion on divergent answers he gave when questioned on the issue. On the one hand he said he did not appreciate that the system had an electrical connection, representing that position as his considered view when in fact, as he later conceded he gave the matter very little if any thought. In my view, I consider that Mr Dick’s denial of knowledge of an electrical connection was motivated by a desire to deflect criticism from himself concerning potential liability on his part for the death of Mr Harley.

97. I observed that Mr Dick was able to give specific evidence where it suited his case for him to do so, and in contrast he claimed a lack of knowledge and recollection where it did not suit his case to give specific evidence. I found his “I don’t know” answer to the question as to why, in January 2009 he had been able to recall an alleged conversation with Mr Harley which he had 3 years earlier despite not referring to that conversation in thorough and detailed interviews with the police and with a Workcover inspector, to be disingenuous. I found his explanation for not raising that asserted recollection with his lawyers for some months until the day before he gave his evidence to be somewhat glib and unconvincing. That view was reinforced by his later concession that the conversation in question could have been something he had made up in his mind.

98. I found Mr Dick’s references to Mr Harley not being authorised by him to remove the redundant hot water system to be gratuitous, self-serving and unconvincing in the context that he had left it to Mr Harley to scope the work required to fix the leak. I consider Mr Dick’s evidence in this regard to have been put forward in order to deflect criticisms directed at him, knowing his evidence in this regard could not be contradicted.

99. I accept the submission made by the plaintiff that Mr Dick’s statements to the investigating police were either not complete or forthcoming and were designed to distance himself from knowledge of the circumstances of Mr Harley’s death. In these circumstances I find myself unable to rely upon the self-serving and exculpatory aspects of his evidence of denial of knowledge of the electrical connection to the redundant hot water system and his assertions that he did not authorise the removal of the redundant hot water storage tank. I consider that Mr Dick structured the latter evidence on his mistaken belief that Mr Harley was in the course of removing or taking down the tank because he had not considered or had possibly declined to consider that the tank had fallen rather than having been partially dismantled as he asserted. He was the only person who described the structure as having been pulled to pieces, conveying the impression of a dismantlement of the structure rather than the structure having collapsed and having fallen.

Mr Stephens

100. The plaintiff also challenged the reliability of the testimony of the testimony of Mr Stephens. I find that Mr Stephens generally did his best to relate his evidence in a truthful manner, especially insofar as he ultimately candidly explained why it was that he chose not to discuss electrical matters with Mr Dick during the course of his dealings with Mr Dick, namely that he was a plumber and not an electrician. However I find that the reliability of the evidence Mr Stephens gave on other issues was undermined by a number of critical matters that affected the resolution of important issues in the case.

101. I consider that much of the detail of the evidence of Mr Stephens, when explored, was found to have been based on assumptions he had made rather than being based on his personal recollections. It was apparent from his evidence that Mr Stephens engaged in reconstruction of his evidence rather than basing it on actual recollections. An example was his initial evidence concerning having capped the water pipes on the roof. Other examples were his evidence of turning off the tap for the water supply to the system and initially not differentiating his own work from that carried out by his employee Mr Harders. Another example was his evidence concerning his claimed observations concerning the activity of Mr Sama at the fuse box, initially claiming to have seen Mr Sama doing work there and then subsequently agreeing that he had not seen such work as earlier described.

102. I consider that there was an aspect of the evidence of Mr Stephens which reflected poorly on his credit as a witness. This concerned his initial refusal to concede that it was dangerous and hazardous to leave a live electrical connection running to a defunct hot water system. That stance was based on the proposition that he was a plumber and not an electrician. I find that stance to have been a remarkably unrealistic one for a tradesman to adopt. That stance did not sit well with his evidence that he was aware of electrical issues, evidenced by the fact that he carried volt meters amongst his tools. It also did not sit well with his ultimate concessions that it would have been appropriate to advise Mr Dick of the fact that the redundant solar hot water system had a live electric current running into it. That concession did not sit well with his evidence that he consciously refrained from raising electrical matters with Mr Dick.

103. I find that I cannot accept as reliable, the evidence Mr Stephens gave to the effect that the water connections to the redundant solar hot water system were disconnected and capped with screw capping before he sent his invoice to Mr Dick on 26 November 2001 and by which he charged for that work. I also find that the evidence Mr Stephens gave concerning the detail of the decommissioning work on the solar hot water system and the installation of the new gas hot water system was largely based on hearsay considerations relating to the work of his employee Mr Harders, rather than being based upon his own observations and as such was inaccurately reconstructed. I consider that this analysis undermines the factual reliability of that evidence. This problem also served to undermine the factual foundations of the report of Associate Professor Blackburn, whose factual assumptions have been shown to be inaccurate insofar as they were dependent upon assumptions provided to him based upon the asserted recollections of Mr Stephens.

104. Accordingly, for these reasons, I consider that I cannot totally rely upon the evidence of Mr Stephens in determining the issues in dispute in these proceedings.

Findings on the liability issues in dispute

105. In the paragraphs that follow I set out my analysis and findings concerning the facts and issues that arise for determination in these proceedings.

Issue 1 – whether the electricity supply continued to remain connected to the redundant solar hot water system

106. As a result of the material that came to light during the police investigation concerning the circumstances of the death of Mr Harley, in my view it has been plainly established that the electricity supply of the premises had remained connected to the storage unit of the redundant solar hot water system after the installation of the gas hot water system had occurred. Ultimately there was no real dispute between the parties on this issue however I set out my findings on the point as they relate to other issues calling for decision.

107. I consider that such a conclusion is confirmed by the evidence of Mr Gell. Several weeks before Mr Harley’s death, Mr Gell and Mr Harley inspected the rooftop of the premises. At the time Mr Gell was able to see hot water and steam escaping from a pipe connected to the apparatus of the solar hot water system. It was also apparent from Mr Gell’s observations, which I accept, that wires were connected to, and were running off. the hot water tank. Those wires have since been identified to be electrical wires. Mr Gell said, and I accept, that when he took the opportunity to feel the pipes of the solar hot water system on the occasion of his inspection, he saw that the pipes were connected to the apparatus and he detected that the pipes were hot to his touch.

108. I infer from Mr Gell’s evidence and from the fact that Mr Harley was subsequently electrocuted, that the heat and steam that Mr Gell had observed to be present was due to a continued active and live electrical connection that remained between the electricity supply to the premises and the redundant solar hot water system on the premises. There was no evidence called to suggest that this electrical connection had ever been disconnected from the electricity supply after the time of Mr Gell’s observations and before the time when Mr Harley was electrocuted. In these circumstances I consider that it is reasonable to draw the inference to support the finding that the electricity continued to remain connected to the solar hot water system in the interim, and that this connection was live and active at the time Mr Harley died.

109. I therefore find that after the new gas hot water system had been installed at Mr Dick’s premises the electricity had remained connected to the water storage unit of the redundant solar hot water system on the roof of the premises. I also find that this position had remained so when Mr Harley commenced working on the roof on the day he died. The responsibility for this continued electrical connection remains to be analysed.

Issue 2 – first defendant’s awareness of continued electrical connection to the redundant solar hot water system

110. The first defendant, Mr Dick, submitted that he was not aware, nor should he be taken to have been aware, that the electricity supply had remained connected to the redundant solar hot water storage system after the gas hot water system had been installed. I do not accept that submission for the reasons that follow.

111. Mr Dick was aware that plumbing work was being carried out to install a new gas hot water system because of problems due to previous hail damage occasioned to the older roof mounted solar hot water system that was found to be not working properly. Mr Dick was aware that the new installation required plumbing work to be carried out to disconnect the plumbing to the old system. This is evident from the terms of the quotation comprising Exhibit “C” which the plumber, Mr Stephens, addressed to Mr Dick.

112. In my view there is no evidence, from within that quotation prepared by Mr Stephens, or otherwise, that would reasonably suggest that in the circumstances, electrical disconnection work would be legitimately carried out by a plumber at the same time as he did plumbing work to disconnect the water pipes leading to and from the solar hot water system unless he was duly licensed to carry out electrical work. Further, the invoice from Mr Stephens, which was prepared after the plumbing work had been carried out, gave no indication that could reasonably suggest that any electrical work would, or had been, carried out by Mr Stephens at the time of the changeover of hot water systems.

296. Within these arrangements there was no evidence of any discussion in which Mr Dick had told Mr Harley of the need to be wary of matters electrical in connection with the solar hot water system. It was clear that Mr Dick had assumed, incorrectly, that there was no live or active electrical connection to the solar hot water system.

297. There is evidence that on the day of Mr Harley’s death, whilst he was at his home for lunch, he had told the plaintiff that he had to call an electrician. Although Mr Harley had been working at Mr Dick’s premises on that morning, there is no evidence other than unreasoned speculation that the discussion about needing to call an electrician had anything to do with the job at Mr Dick’s premises, although a possible inference to that effect could, amongst others, arise. I will evaluate these possibilities in analysing the evidence that relates to the arguments concerning alleged contributory negligence on the part of Mr Harley.

298. I now turn to an evaluation of the specific particulars of contributory negligence that are relied upon by the defendants.

Alleged failure to ensure the system had been decommissioned

299. I do not accept there was a failure on the part of Mr Harley to ensure that the solar hot water system had been decommissioned. The scope of Mr Harley’s work did not involve decommissioning the redundant system. It was clear from Mr Dick’s version of events that it was his understanding that he thought, incorrectly as it turned out, as has been proven by the fact that Mr Harley was electrocuted, that the system had been decommissioned by the work that was performed by Mr Stephens. There is no evidence that Mr Dick informed Mr Harley of the need to check the system for the presence of a live electrical connection. I consider that in these circumstances Mr Harley was entitled to assume that as the system was redundant, in disuse and was not connected to the electricity supply. I find this to be especially so in the context of a discussion between Mr Harley and Mr Dick to the effect that the unit may have to be taken down. In that discussion Mr Dick’s concerns were not about the safety aspect of the electrical connections, but rather, he was concerned about the cost of the removal.

300. Accordingly, I reject the notion that Mr Harley failed to ensure that the electrical supply to the solar hot water system had been decommissioned. I find that Mr Dick has failed to show that Mr Harley was aware that there was a live electrical connection to the system so as to support the contention that Mr Harley would have been placed on enquiry to ensure the system was electrically decommissioned before he commenced his work.

Alleged failure to disconnect the electrical supply to the premises

301. I do not accept the correctness of submission that there was a failure on the part of Mr Harley to disconnect the electricity supply to the premises. I make this finding because Mr Harley was not an electrician. For him to have done what is now suggested would constitute electrical work contrary to regulatory requirements for carrying out electrical work and as such, to do so would be a criminal offence. I reject the notion that a failure to do something that, if performed would constitute a criminal offence, should be nevertheless characterised as contributory negligence.

302. There is no pleaded allegation that Mr Harley failed to call upon the assistance of an electrician to carry out a disconnection of the electricity supply to the premises. Even if that allegation was pleaded, there is no evidence that arranging a disconnection of the electricity supply to the premises was within the scope of the work that Mr Harley was required to undertake. Disconnecting the premises from the electricity supply seems to be a drastic step to be required of an unqualified person. In my view this allegation demonstrates the allegation relied upon to amount to a call by the first defendant for a counsel of perfection to be applied to Mr Harley’s conduct rather than adherence to the standard of reasonable care for his own safety in the circumstances.

Alleged failure to ascertain whether the hot water system was electrically connected

303. As the allegation of failure to ascertain whether electricity was connected to the system also involves some overlap with the related particular allegation of contributory negligence that follows concerning the carrying out of work on an electrically connected hot water system, I will analyse these two allegations together and in detail in the following paragraphs.

Working on the hot water whilst it was electrically connected

304. The pivotal inquiry involves identifying whether, on the day of the incident, there was any evidence that serves to establish, to the requisite standard, knowledge on Mr Harley’s part, that the solar hot water system was electrically connected to a live and active current. As there is no direct evidence that on the day in question Mr Harley actually knew there was an active live electrical connection to the solar hot water system, the contributory negligence arguments therefore rely upon inferences that the defendants submit should be drawn from the evidence. Whilst such an approach is permitted by s 5R(2) (b) of the Act, it is for the defendants to prove such assertions by evidence and reasoned inferences drawn from the available evidence.

305. In view of this, the approach I take to this question is to examine each significant piece of evidence relating to possible contributory negligence, individually, and then with all of the evidence taken together as a whole. This enquiry must be undertaken with caution to ensure that it proceeds according to a prospective analysis, as with any allegation of breach of duty of care, and to ensure that the analysis does not become contaminated with knowledge that has been gained with the benefit of hindsight : Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, as was identified and explained by Hayne J at [126].

306. Having undertaken that analysis, for the reasons set out in the paragraphs that follow, I have concluded that these two particular allegations of contributory negligence that are relied upon by the defendants should be rejected.

307. A convenient starting point is the evidence of Mr Gell, which was to the effect that about three weeks before Mr Harley’s death both he and Mr Harley were on the roof and he, and by inference, Mr Harley saw steam coming from pipes associated with the solar hot water system on the roof and that the related water pipes were felt to be hot. Also relevant is Mr Gell’s summarised discussion about electricity and the need for an electrician. Assuming that this evidence compels a conclusion that the electricity was connected, the fact that this inspection occurred weeks earlier, does not of itself necessarily require the conclusion that to Mr Harley’s knowledge, the system had remained electrically connected up until the time he commenced working on the roof the fateful day that he met his death.

308. When the submission of the defendants concerning this evidence is considered, the submission is revealed to be reliant upon a supposition that Mr Harley made no relevant enquiry of his own, either of Mr Dick or otherwise, and that he was given no reason to be reassured that there was no relevant connection of the solar hot water system to the electricity supply of the premises. The submission also assumes, without justification on the evidence, that some kind of a presumption of continuance applies in the circumstances and that no electrical work was done on the connections between the date of Mr Gell’s inspection with Mr Harley, and the date Mr Harley was electrocuted. That conclusion is not open on the evidence without specific evidence to support it, particularly since there is some evidence that Mr Harley made a call about an electrician. Although there was some evidence to that effect from Mr Dick, who said no other work was done, he was not in a position to definitively state that this was so as such evidence was based on an unproven assumption on his part.

309. Another relevant passage in the evidence that could be argued to be supportive of a basis of knowledge in Mr Harley that the solar system was electrified was the summarised conversation between Mr Harley and Mr Gell to the effect that they were concerned, that on the occasion of their joint inspection, that the apparatus looked dangerous, and that a discussion took place about an electrician. That evidence was as follows:

“CHENEY

Q. Sir in paragraph 4 of your statement to the police you spoke of what you detected in the pipes; you said that you felt the pipes on the tank and they were hot?
A. Yeah.

Q. You go on to say that you decided that it was best to leave it, “We decided that it was best to leave it and get an electrician to look at it”?
A. Yeah.

Q. There was a discussion between you and Mr Harley on the roof about the merits of getting an electrician to look at the problem, is that right?
A. Yes I obviously viewed the panels with Alan and came to the conclusion that the solar hot water panel wasn’t working and it looked broken and there must be some other form of electricity running through the system to enable it to sort of heat the water to the temperature it was. So I basically told him that I wasn’t going to touch it and we both agreed that it looked dangerous, so.

Q. You told him that you weren’t going to touch it because you were concerned about the possibility of electrical shock?
A. Safety, exactly.

Q. After the discussion that you had with him about the need to get an electrician to look at it he went off to make a phone call, is that right?
A. Yeah we obviously discussed the electrician as well as the landlord, and then he proceeded to make a phone call; as I said in my statements at the time it was the landlord, but now I can’t be a hundred per cent certain whether it was a landlord or the electrician. But he made a phone call, I can't recall what was said, I wish I could but unfortunately I can’t.

Q. Is one of the reasons that you can’t recall what was said because you didn’t overhear the conversation between--
A. That's correct I didn’t hear the conversation word for word, but Alan was on the phone. Whether it was a voice message or a conversation I can't recall either, but I can recall he was on the phone, immediately after we came to the conclusion that we weren’t going to touch the system.

Q. After coming to the conclusion that you weren’t going to touch it and seeing Mr Harley make a call on his mobile phone, the two of you left the roof is it?
A. Yeah we hopped off the roof, yep.

Q. You heard nothing more from Mr Harley about that project or anything, or indeed at all?
A. No.

Q. Until you learned of his death?
A. That's correct yep.

Q. That was about 6 weeks later?
A. Yeah.”

310. I consider the probative value of the foregoing evidence is problematic. The answers relied upon by the defendants were to questions that were leading. Whilst leading questions were legitimate in the context, because it was cross-examination, it was nevertheless not possible to explore and test the detail of the summarised conversations with Mr Harley. I consider that in this context, leading questions, without exploration of the detail, sometimes leads to a somewhat skewed analysis and can sometimes fail to elucidate relevant probative detail, especially when the answers are given in a form that is in effect a summary without exposing the underpinning detail of the facts, or in this case, the actual words used : Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320; Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA. For this reason I approach the summary or conclusion evidence with caution.

311. Although Huseyin and Mason were decided in the context of the evidentiary utility and fairness of summarised conversations appearing in medical reports, I consider that similar considerations afflict the probative value of this part of the evidence of Mr Gell that I have cited and which is relied upon by the defendants as to alleged imputed knowledge on Mr Harley’s part that the solar hot water system had an active and live electricity supply. Without more, I therefore consider Mr Gell’s concessions to lack probative value on the issue of Mr Harley’s alleged state of knowledge of a likely electrical connection. In any event, the knowledge concerning live electricity said to be had by Mr Harley at that time cannot in my view be presumed to have continued in the absence of evidence bringing that knowledge forward and current to the time of the event.

312. The problematic nature of the probative value of this evidence is further illustrated by Mr Gell’s concession that he didn’t hear the critical telephone conversation word for word, he could not recall what was said and there was confusion in his mind as to parts of the reported conversation. Those qualifications related to Mr Gell’s recollection as at the time of the trial. This in my view demonstrates the inadequate foundation for the defendants’ contributory negligence argument. The oral evidence in this regard was left in a vague state and I cannot view it insolation from Mr Gell’s earlier and more contemporaneous statement to the investigating police, which was more concrete and specific, and which did not support the position contended for by the defendants at the hearing.

313. I therefore consider the cited evidence of Mr Gell anchored in a time some weeks before the incident to have no probative value to the issue of alleged contributory negligence on the day Mr Harley died. That assessment is not a criticism of Mr Gell, whom I felt was doing his best to relate the events as best he could recall them at the time of the trial. However, the probative value of this aspect of his evidence was limited by his lack of recall at the trial, by the necessarily summarised perceptions of what he concluded had been said, and was based on an incomplete hearing of the actual words used.

314. Another piece of evidence relevant to a contributory negligence argument is that which was recorded in the plaintiff’s statement to the effect that part way through Mr Harley’s working day on the premises, on the day he died, whilst at home at lunch time, Mr Harley told the plaintiff that he needed to speak to an electrician. The inference sought to be drawn by the defendants concerning this piece of evidence is that Mr Harley’s stated need to speak to an electrician must have related to the work required to be carried out at Mr Dick’s premises. The plaintiff’s statement was tendered. She was not called or cross-examined on this point and in the circumstances, given the limited and non-particular nature of the evidence, I decline to draw the inference sought because I consider it to be unwarrantedly speculative since it does not follow that this particular job he was carrying out for Mr Dick was the only job that Mr Harley was involved in or was planning at the time. The connection between the call and the timing of Mr Dick’s job may have been entirely co-incidental. The evidence does not permit a reasoned conclusion that does not involved unwarranted speculation on this point.

315. Without some evidence to establish a link I consider that it would be unreasonable and unfair to draw the inference sought to be drawn by the defendants. It was open to the defendants, if they chose to do so, between them, to call the plaintiff and question her, both in chief and by cross-examination, in order to seek to clarify this issue and this was not done. The evidence in this regard was therefore, left in a speculative state by the defendants.

316. Another piece of possibly relevant evidence to the issue of contributory negligence is the statement of Ms Sams. She said that at about 9.30 am on the morning of Mr Harley’s death, she saw overflowing water that was flowing over the roof guttering of the premises. It was described as being a considerable quantity because Ms Sams had observed that the water was flowing for a considerable period of time and was flowing over the guttering in circumstances where there was no evidence of the guttering having been blocked. There was no description of the colouring of the water that flowed in this way, namely whether it was dirty or clear. Later, at about 2pm Ms Sams saw Mr Harley on the roof of the premises and “heard him thumping around the roof a bit more.” She then paid no further attention to Mr Harley and she became engrossed in her work. The presence of water on the roof at the time Mr Harley was there is consistent with testing for a leak he was there to fix. The thumping about perceived by Ms Sams was consistent with a variety of types of repair work involving, for example, manipulation of rusted mounting bolts and/or trying to move the redundant tank or its supporting frame or both, or even the falling of the tank. In my view there is nothing that emerges from this evidence to support electricity based inferences as to contributory negligence on the part of Mr Harley.

317. Then there are the matters arising from the evidence of Mr Dick. Mr Dick stated that he had not authorised Mr Harley to remove the redundant hot water system from the roof. This based the suggestion that Mr Harley had embarked “on a frolic of his own” which was outside the scope of the work he had been engaged to perform. I do not regard that evidence as constituting a proper basis for finding contributory negligence on Mr Harley’s part since some form of dismantling of the frame or stand was envisaged along with the screws or bolts at its base, as the appropriate method of fixing the leak in the roof, as was confirmed by the evidence of Mr Stephens who said that this was the proper way of doing the job. In view of this evidence, I do not accept that Mr Harley was “on a frolic of his own” or that the partial dismantling of the structure of the system, such as the mounting bolts was outside the scope of his work, which was otherwise unspecified by Mr Dick.

318. Apart from the evidence of Mr Dick, whose credibility has in my view been damaged on critical issues, there is no justifiably reasonable or adequate basis on the evidence for the inferences sought to be drawn by the defendants.

319. Also requiring consideration as part of the evaluation of the contributory negligence submissions are the objectively described facts that were found to be apparent at the scene following the electrocution of Mr Harley. In the paragraphs that follow I will enumerate and examine these objective facts to ascertain whether there is a reasonable basis of support for a contributory negligence finding based on those facts.

320. First, the electrical panel at the side of the redundant hot water system was found to have been in an uncovered state with exposed and burnt electrical wiring and the cover of that panel was found to be laying separate and a little distant from the panel, namely on the corrugated iron sheeting that was covering the roof. The timing and cause of that burnt wiring has not been determined by expert evidence. It could have been as a result of deterioration with time, earlier shorting due to the heating element having been exposed for a time or it could have been caused by contact when Mr Harley was electrocuted there may have been some other cause. Since the experts with specialised knowledge cannot resolve the question it is inappropriate for me to speculate on a resolution as a commonsense analysis is not open on matters involving specialised expertise. Second, the screws that would normally have held that covering plate in-situ on the housing structure of the unit were later said to be located in a neat pile on the roof. Thirdly, a screwdriver and other tools belonging to Mr Harley were located nearby on the roof. Fourthly, The water storage component of the unit was observed to have fallen over from its stand and that fall was thought to have been recent as was indicated by the location, distribution and dirty colour of the nearby water stains that had spread on the roof. Each of these matters bear analysis.

321. Whilst there is evidence that the roof mounted water storage unit had fallen over onto the roof, one can only speculate as to how this was likely to have occurred. It is unlikely to have fallen spontaneously, and there is no evidence that wind forces were at play. Coincidence is also an unlikely explanation for the falling of the tank. The mounting bolts, which were affected by rust, could have failed whilst Mr Harley was attempting to manipulate the screwed in bolts to investigate the leakage site. The fall could have happened when the structure may have been touched, leaned upon or perhaps pulled to one side to expose the holes in the roof at the site of the mounting bolts. The tank could have fallen when filled with water as postulated by Associate Professor Blackburn. Mr Stephens, who was also a roof plumber, said that removing the bolted structure was the proper way to address the leak. In the light of that evidence, suggesting that removal of the mounting bolts was the correct way to do the job, I do not consider this to be a proper basis for sustaining a contributory negligence argument in the absence of proof of knowledge on Mr Harley’s part of the existence of a live and active electrical connection to the redundant system.

322. The matter of the fallen water storage unit is of some relevance to the found location of the separated cover of the electrical panel of the unit. There is no direct evidence as to how the panel cover became separated. This may or may not have become dislodged at the time the storage unit fell. It may have been removed by someone else. It may have been removed by Mr Harley, as was suggested by the defendants. The latter conclusion was based on a speculation that was raised by Associate Professor Blackburn. Either way, these alternatives possibilities could potentially explain the uncovered state of the electrical panel on the unit. The argument in favour of it having been removed by Mr Harley, in the course of touching the electrified components of the structure, as was identified by Associate Professor Blackburn, is a deficient analysis in the absence of evidence of the pathway of flow of the electrocution current in Mr Harley’s body.

323. Associate Professor Blackburn also made the observation that the removed screws for the cover were located in a neat pile, suggesting this was done by Mr Harley. One the other hand, Mr Harley may have simply gathered the screws that may have been scattered and piled them neatly as they were later observed. Alternatively, these screws may have been removed and piled in that fashion by someone else on some other occasion. There is no evidence that would enable a satisfactorily reasoned and non-speculative preference to be made from amongst these alternative matters of speculation.

324. Even if it is assumed that it was Mr Harley who had removed the cover of the electrical panel and had neatly piled the screws as postulated by Associate Professor Blackburn, without more, this does not compel a finding that there was contributory negligence on the part of Mr Harley because, amongst other things, there is no evidence as to whether the removal of screws took place before or after the tank fell. Once the unit had fallen, absent a reasonable basis for belief on his part that there were live wires within the unit, I consider that it would have been reasonable in such circumstances for a handyman to have removed the cover plate to see what was inside the structure as a precautionary preparation for taking the next reasonable step, namely giving consideration to dismantling the unit for its removal as it was no longer appropriate to just leave it there after it had fallen.

325. In these circumstances, if that is what occurred, Mr Harley would have acted reasonably in investigating the situation. It may well be that in the course of such events, the wiring attached to the water storage unit may have stretched, it may have become unprotected in part and may have come into contact with other parts of the structure possibly also in the presence of water so that it became electrified, thus causing the electrocution of Mr Harley. These are matters of obvious speculation that cannot be satisfactorily resolved. In my view these matters of speculation serve as insurmountable obstacles to a reasoned conclusion that there was contributory negligence on the part of Mr Harley.

326. The defendants relied upon the conclusions of the experts to the effect that Mr Harley removed the cover of the electrical panel and was working directly on the active connections. That evidence, whilst admissible on the ultimate issue because of the operation of ss 79-80 of the Evidence Act 1995, is of no probative weight or value on the issue of contributory negligence because these conclusions are based on unproven and speculative assumptions.

327. The presence of Mr Harley’s screwdriver at the site could serve as a possible explanation for the observation of neatly piled screws on the roof but then again it would not be unexpected for a handyman to have a screwdriver with him on any kind of outdoor or rooftop job, as would be the case with other tools that were found on the roof. After all, it was known that Mr Harley was attempting to seal the roof at the base of the mounting bolts of the storage unit in order to fix a leak. It would be unreasonable to assume that a handyman would only use a screwdriver to turn screws when common knowledge and experience suggests that a sturdy screwdriver can also serve as a lever, wedge, prodding and probing implement for clearing blockages, for poking holes in some materials and a host of other possible tasks.

328. In my view the foregoing analysis does not support the contributory negligence contentions relied upon by the defendants. Instead, it creates barriers for the success of such an argument. I therefore reject the contributory negligence submissions based on alleged failures to ascertain the status of any electrical connection to the solar hot water system.

Alleged failure to remove the fuse from the electrical supply “box”

329. I find that the contributory negligence allegation that Mr Harley had failed to remove the fuse from the electricity supply board is problematic as a particular of contributory negligence in this case. I reject that argument because it assumes, without evidence or any reasoned inference based on evidence, that Mr Harley had reason to believe that the electricity had remained connected to the redundant solar hot water system when there is no such evidence to support that view.

330. Further, it appears from the photograph of the fuse board to the premises (photograph 4A being part of Exhibit “A”) that apart from the identified spare fuse, the fuses located there were not labelled so as to indicate which appliances or fittings were supplied with electricity by particular fuses. I consider the defendants’ argument in this regard is unreasonable because without the fuses being labelled, Mr Harley would not have had the skill or knowledge to enable him to identify which fuse was connected to which device. He was not an electrician. Accordingly, I reject the contributory negligence submission that invokes the notion that there was a failure on the part of Mr Harley to remove a fuse from the fuse board. There is no evidence that would permit identification of the particular fuse that ought to have been removed to achieve such an identification. The defendants do not argue that Mr Harley should have tried to achieve this through a process of trial and error. I consider that such a process would have been unreasonable because Mr Harley was not electrically qualified to test the redundant hot water system to determine whether such efforts were successful.

Alleged failure to have adequate regard for safety

331. In my view the general omnibus submission that Mr Harley failed to have any or any adequate regard for his own safety has not been made out on the evidence. It is a general allegation that is made in the face of uncertainty within the evidence as to precisely how the electrocution occurred and it therefore lacks the specific particularity that is required to sustain a finding of contributory negligence. Instead, the submission in effect involves an amorphous assertion that there must have been a failure on the part of Mr Harley to take care for his own safety, for otherwise he would not have been electrocuted. This is a flawed submission where the party bearing the onus of proving the assertion cannot point to any identifiable or specified act, neglect or default on the part of Mr Harley that would, on the balance of probabilities sustain such a submission.

Conclusion concerning contributory negligence

332. On the basis of the foregoing analysis I reject the arguments raised by the defendants that there was contributory negligence on the part of Mr Harley. I consider that each of the defendants have failed to discharge the onus of proof for a defence of contributory negligence.

Issue 12 – apportionment of liability between defendants

333. Having found that each of the defendants were negligent and having found that it was their negligence that caused the death of Mr Harley, it becomes necessary to apportion responsibility for Mr Harley’s death between the two defendants on a just and equitable basis by weighing and assessing their respective culpabilities for the death of Mr Harley. These respective culpabilities can be summarised as follows.

334. First, there were failures on the part of Mr Dick, on his own version of events, to give the matter of electrical safety any consideration whatsoever. It did not occur to him that the redundant solar hot water system would be, and was still supplied, by an active and live electric current in circumstances where he should have had the matter of risk of electrical safety within his reasonable contemplation. These failures occurred both at a time from when the solar hot water supply to the premises was made redundant and changed over to a new gas hot water supply in November 2001, and also in 2004 when Mr Dick engaged Mr Harley to carry out work on the roof.

335. Secondly, there were successive failures on the part of Mr Stephens to not only inform Mr Dick that the effect of making the solar hot water system redundant through the contemplated plumbing work that he was contracted to carry out, would still leave the electrical connections to the system intact. In these circumstances Mr Stephens deliberately refrained from advising Mr Dick to obtain the advice and assistance of an electrician. Not only did Mr Stephens fail to inform Mr Dick on these matters which, from a plumber’s perspective, involved obvious considerations of risk and safety, but he made a conscious decision not to raise the subject with Mr Dick because he considered that as a plumber, a discussion on electrical matters was not within his purview or was not within the scope of his professional concern to say something on the subject.

336. In my assessment, when weighing a just and equitable apportionment between these two sources of failure to take reasonable care as contributing causes to the death of Mr Harley, I consider that they operate in unequal measure.

337. I consider that Mr Stephen’s inactions, particularly his decision not to draw Mr Dick’s attention to the need to obtain the services of, or at least the advice from an electrician, carries with it a much higher degree of blame than that which attaches to the failures of Mr Dick in the circumstances. I consider this to be so because Mr Stephens was in the position of drawing the electrical issues to the attention of Mr Dick at successive stages of the work, namely when he quoted on the job, when he took his care not to mention the need to address electrical part of the disconnection process which Mr Carmody confirmed was necessary, when the plumbing redundancy work was commenced and again before he commissioned the new gas hot water service into working order. Then there was the additional opportunity to say something when he sent his invoice for payment. At each of these stages of his involvement I consider that the actions and failures on the part of Mr Stephens carry a far greater degree of responsibility than Mr Dick for the death of Mr Harley.

338. Whilst recognising that minds may differ on an appropriate apportionment in such circumstances, doing the best I can do be fair and reasonable to each of the defendants, I consider that Mr Dick should bear 20 per cent responsibility for the plaintiff’s damages and Mr Stephens should bear 80 per cent responsibility for such damages.

Disposition

339. I have found that the plaintiff has succeeded on all issues that call for determination in the proceedings. As between defendants I have found that the defendants should bear responsibility for the plaintiff’s damages in the proportion 20 per cent to be borne by the first defendant, Mr Dick and 80 percent to be borne by the second defendant, Mr Stephens.

Costs

340. Since the plaintiff has succeeded in her claim against each of the defendants, I consider that she is also entitled to an order for the payment of her costs by the defendants.

Orders

341. I make the following orders:-

(a) Verdict and judgment for the Plaintiff against each defendant in the agreed amount of $350,000;

(b) The defendants are to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

(c) On the cross claims the defendants are to bear responsibility for the plaintiff’s verdict and judgment in the proportion 20 per cent to be borne by the first defendant and 80 per cent to be borne by the second defendant;

(d) No order as to costs in respect of the cross claims;

(e) The exhibits may be returned;

(f) Liberty to apply on 7 days notice if further orders are required.