James v Jones as Executor of the Estate of Neville Jones - [2006] WADC 62

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JAMES -v- JONES AS EXECUTOR OF THE ESTATE OF NEVILLE JONES [2006] WADC 62

CORAM: FENBURY DCJ

HEARD: 1 & 2 NOVEMBER 2005

DELIVERED : 28 APRIL 2006

FILE NO/S: CIV 1824 of 2002

BETWEEN: PAUL SAMUEL JAMES
Plaintiff
AND
SUSAN JANE JONES AS EXECUTOR OF THE ESTATE OF NEVILLE JONES
Defendant

Catchwords:

Damages - Personal injury - Negligence - Occupiers liability - Turns on own facts

Legislation:

Occupiers Liability Act 1985

Result:

Plaintiff's claim dismissed with costs

Representation:

Counsel:

Plaintiff: Mr I L K Marashall
Defendant: Mr R E Keen

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Dibbs Abbott Stillman

Case(s) referred to in judgment(s):

Bryant v Fawdon Pty Ltd (1993) Aust Torts Report 81‑204
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Case(s) also cited:

Nil

FENBURY DCJ: The late Neville Jones, the deceased, lived at 24 Bolt Court in Lesmurdie. He was the occupier of those premises for the purposes of the Occupiers Liability Act 1985 (the deceased).
Prior to April 1999 the deceased decided to extend his home in Bolt Court. He presumably obtained a building licence to do so. I infer he nominated himself as "owner/builder" for the construction of the extension. The deceased engaged an architect to design the structure and, apparently to see to the appointment of appropriate sub‑contractors.
By April 1999 the construction work of the extension had "virtually been completed" (par 3.1 statement of claim). The nature of the extension can be seen from a rough drawing prepared by the plaintiff which is exhibit 1.
The extension has a substantial wall in common with the existing building. That wall is a cavity wall, meaning it consists of two rows of bricks with a gap in between.
Assuming a north south configuration in exhibit 1, the common wall runs east west, and at its eastern end there is a column made of bricks. The column can be seen in the photograph numbered 1 which is on the top right hand corner of p 14 of the book of evidence. The same photograph is numbered 1 in a coloured collection of the photographs which is in a separate book. Indeed the coloured photographs are far more helpful and I shall refer to the book of the coloured photographs by page number. The photographs form part of exhibit 5. It can be seen from the photographs that the brick walls and roof timbers of the new extension had been all but completed. Some of the tiling on the roof of the new extension had been commenced.
Prior to 10 April 1999 the architect appointed by the deceased engaged the plaintiff, a fully qualified and licensed electrician, to install the electrical wiring for the extension.
Apart from being a duly licensed and qualified electrician, the plaintiff was experienced in the work, having qualified in 1985 after a five year apprenticeship.
There can be little doubt the plaintiff was a person who, on entering the premises, would have appreciated the electrical dangers that existed in those premises.
Upon arrival at Bolt Court on 10 April it was apparent to the plaintiff that he had quite a deal of work to do. He had some concerns that he had been called relevantly late into the job. He inspected the premises for about two hours during a site meeting that he had there with the architect and the deceased. He then commenced work immediately and laid down extensive cabling. There was some need for haste because tilers were due to start on the following week. The premises had a cathedral like ceiling which was lined with timber and it was important cabling be laid before tiling.
The plaintiff said that he looked at the meter box for the premises. It was typical for premises the age of the original building, and circuit protection was provided by way of fuses rather than any of the more modern devices. The plaintiff was aware that there was no cut‑off or circuit‑breaker switch such as a "Clipsal".
The plaintiff said that he worked at the site for about eight hours on that day. He had agreed to upgrade the switchboard for the deceased but he did not do so on that day, nor did he install any more modern safety switch or device.
The plaintiff next attended the premises on the Wednesday following, which was 14 April. He said that the job was "very advanced" and that there were a lot of trade's people on site. He said that he had some difficulties in installing cabling. He eventually completed the cabling to the stage where inter‑connecting could take place. Inter‑connecting involved connecting of the wiring of the original building to the new building (the extension).
The plaintiff stated that prior to carrying out inter‑connecting, he was required to investigate where existing circuits were and to identify a particular circuit and isolate it, and then test it for current. This was to be done by tracing where wires came from and went.
The plaintiff said he was working at the brick column depicted in photograph number 1 in the coloured book which is the coloured version of those black and white photographs in exhibit 5.
In order to commence tracing the plaintiff was required to remove some of the tiles from the original roof. This is a normal enough event in the trade. The plaintiff noticed that certain nearby wall lights that were a part of the original construction had been removed, and the wire stubs for those lights simply left protruding from the wall. The plaintiff was concerned about this because the lights would have illuminated the area in which he was to work had they been operational.
To carry out his task of locating and tracing existing electrical wiring from the pre‑existing premises in order to make connections to the new premises, after removing the roof tiles to which I have referred, the plaintiff proposed to trace electrical cables manually, that is by touch. He would take hold of a cable and shake it to see if and where it was attached.
Prior to commencing to do this the plaintiff did not turn off the power to the existing premises. He knew the power was on and that there were live cables. Indeed, he knew that the cables he was handling were live.
It is not precisely clear what the plaintiff did at this stage. He said that he took hold of a double insulated cable and was shaking it to see whether it was fixed to any particular outlet or junction box in the cavity. Eventually, by some means or other, and probably because he was pulling the wire and it broke or sheared off its insulation, the plaintiff's hand came into contact with a live conductor. He suffered a serious electrical shock and he was injured.
The plaintiff sues for damages for the injuries he sustained and he relies upon an action in ordinary negligence and also alleges breach of the Occupiers Liability Act 1985.
Some particulars of the alleged negligence are given as follows being particulars the plaintiff alleges of the negligence of the deceased.
"The accident was caused solely by the negligence of the deceased.
PARTICULARS
4.1Failed to install safety switch and/or circuit breaker.
4.2As an owner/builder, failed to:
4.2.1 supervise all construction work;
4.2.2 co‑ordinate the flow or work by sub‑contractors;
4.2.3ensure that the wire in the roof space, before it is covered with roof tiles and roof flashings was in good condition;
4.2.4schedule and allow the plaintiff's electrical work to be completed before putting the roof tiles in place, or alternatively, keep the wall lights mentioned in paragraph 3.3.1 in its place, so that instead of 'blindly' tracing the wire, the plaintiff can use the wall lights as indicators to assist him in locating which wire supplies the lighting circuit;
4.3Failed to provide a safe place of work."
The plaintiff's further claim under the Occupiers Liability Act is framed as follows:
"5.1Further and alternatively the accident was caused by the breach of statutory duty of the deceased who failed to ensure that the plaintiff did not suffer injury or damage by reason of any danger due to the state of the premises or anything done or omitted to be done on the premises as contemplated by Section 5 of the Occupiers Liability Act.
PARTICULARS
The plaintiff repeats the particulars set out in par 4".
It needs to be emphasised that, over arching all these allegations, is the fact that the plaintiff did not turn off the power before he commenced his manual exploration of the dark cavity of the construction in order to trace and identify the circuits prior to re‑connecting.
The plaintiff maintained that he did not do so because he concluded it was safe to operate with it on and, in any event, other trades needed access to electricity on site.
The plaintiff does not seem to know precisely what happened or why it was that he suffered electric shock. All he knows is that his hand came into contact with a live conductor and he suffered injury.
The conductor involved is depicted in photographs on pp 8 and 9 of the coloured booklet. The extent of exposed wire was unusual. There was far more of it than would have been required to be exposed for connection of the wire by way of connectors in a junction box or the like.
It seems unlikely the wire was pulled out of a connection of that kind. Similarly, the extent of exposed initial insulation, meaning the red or pink plastic, was also more than usual.
The plaintiff had no idea how so much conductor became exposed. He never saw exposed wire when he was injured. He said that he saw the cable before he put his hand on it. He grasped it. He said he was lifting and pulling the cable. He said he was not shaking it but more "jiggling it". He admitted it was for him to decide whether or not to turn the power off. He decided to leave it on.
Furthermore, the plaintiff knew the cable he was lifting was live. He knew it was connected to the existing house. He said that he thought that there was nothing wrong with the cable. He agreed that there was nothing to suggest to him nor would there have been to anyone else that there was anything wrong with the cable. He said he assumed that it was safe. He handled the cable deliberately. He sought no instructions about the matter from the deceased and he agreed the deceased would not have known any better. He also conceded that, with respect to the particular task he was undertaking, the deceased was not supervising him in any way.
The plaintiff said that he thought that there was no risk of him coming into contact with a live wire. He said that as far as he was concerned what he was doing was not unsafe.
The plaintiff called evidence from Mr Roger Parrin of the Office of Energy who produced and explained the photographs to which I have already referred. He investigated the matter.
The plaintiff also called Mr Jeff Eales, who was the senior building inspector with the Builders Registration Board. The expert called by the plaintiff was Mr Michael Connolly. His reports are reproduced at Exhibit 6.1‑6.3 in pp 16‑21 inclusive of the plaintiff's book of evidence.
Mr Connolly has more than 40 years experience as an electrician and has had a particular interest in the insurance industry including risk and claims assessment. Mr Connolly's view was that as the plaintiff was "simply tracing and locating wiring and not connecting or disconnecting that wiring" then it would be "highly unusual" for him to shut off the power. Mr Connolly also noted and seemed to attribute some significance to the fact that other contractors would have objected if the power had been turned off.
In his initial report Mr Connolly seemed to feel that it was the fact that Mr James was working under some pressure to get the job done that was a major factor in the accident.
Mr Connolly went on to say in his reports that given the existing premises were "not that old" and "therefore the prospect of coming into contact with an exposed wire…with such double insulated wiring would have been considered remote by Mr James"…therefore Mr James was in no way guilty of inadequate care for his own safety.
Mr Connolly's opinion was that, generally it was not necessary for an electrician to wear safety gear when handling cable. He said "you would not expect to come across an exposed wire."
In cross‑examination Mr Connolly's attention was drawn to the fact that in dealing with the cable as he did the plaintiff did not really know what was the state of the cable. He was to some extent working blind. It was put to him given that circumstance then it would have been prudent for him to turn the power off. Mr Connolly seemed to be more concerned with the state of the wire pre‑accident.
The expert called on behalf of the defendant was Guy Tomlinson. He was a senior electrical consultant. He commenced his career in the industry in the mid 1970's. In the past 20 years Mr Tomlinson has conducted in excess of 700 investigations associated with electrical installations and has given expert evidence in many matters before the courts. Mr Tomlinson was a most impressive witness.
Mr Tomlinson commented that, being the electrical worker on site, the plaintiff had absolute authority to de‑energise the electrical supply and could have done so had he chosen. Furthermore Mr Tomlinson pointed out that it should have been possible for the plaintiff to isolate the wires he was seeking to trace from other wires thus enabling other contractors to continue working.
It was Mr Tomlinson's view that it was the plaintiff's responsibility, as an electrical contractor, to ensure that safe work practices in his own industry were followed and in particular the isolation or turning off of electrical supply prior to commencing works, and the wearing of appropriate safety gear.
Mr Tomlinson's view was, given the state of the wire that caused the harm to the plaintiff, he must have been pulling quite strongly on the wire to see if it was free and could have damaged it in the process.
In essence Mr Tomlinson's view was that the unfortunate incident that befell the plaintiff was his own fault. His view was that an electrician should not handle live wires under any circumstances. He offered a theory about how the cabling could have been damaged thus exposing the wire. He said that it may have got caught on the corner of brick work and, on being pulled forcefully, it parted the insulation.
I found Mr Tomlinson to be an impressive witness and I accept his evidence in preference to that of Mr Connolly. He had extensive forensic experience and he appeared to me to be more independent.
Counsel for the defendant referred to the pleadings and dealt with the various allegations of negligence commenting that most of them raised issues which were not substantive or were irrelevant.
Mr Keen submitted that given the plaintiff was a professional and qualified electrician he was in charge of matters electrical on site. He took the view that it was safe not to turn the power off or else he could not be bothered to do so but, in either event, he submitted that it was not for the deceased to intrude on the issue. As a rolled up submission Mr Keen asserted that "any unsafe work practices were those of the plaintiff." The plaintiff suffered injuries as a result of his own error of judgment.
Mr Keen made reference to the Occupiers' Liability Act and in relation to the occupier's duty to take "such care as is reasonable" asserted that there was no evidence that the deceased did anything at all that was unreasonable. Counsel referred in detail to the provisions of s 5 of the Act and asserted that in no case was the deceased in breach of the duties cast by that legislation. Mr Keen referred to Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. That was a case where one sub‑contractor employed by a saw miller, injured another sub‑contractor by negligence. Counsel referred with some emphasis to the explanation of the duty that fell upon the saw miller as articulated by Brennan J at p 47 as follows:
"The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility."
The plaintiff, as I have mentioned, was a fully qualified and competent electrician. There was no suggestion that the deceased was in any way negligent in his engagement of the plaintiff or that he should have, indeed usefully could have, supervised the plaintiff in the carrying out of his electrical duties.
Counsel went on to submit that the accident that resulted in the injury to the plaintiff was totally unforeseeable according to the evidence that had been presented in the case. It was unforeseeable according to the plaintiff and to the expert witnesses called in this case. As counsel put it if the system of work was unsafe then it was the plaintiff's own negligence that caused or contributed to the accident. If the work system was safe then the injury was unforeseeable.
It is hard, in my view, to argue against these observations in the circumstances of this case.
Counsel for the plaintiff in essence put that there was a duty of care based on general principles of negligence, that was owed by the deceased to the plaintiff and it included a duty to coordinate access and the activity of other contractors. Counsel for the plaintiff also relied upon Stevens & Brodribb (supra) and especially referred to a passage in the judgment of Mason J as follows:
"If an entrepreneur engaged independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to coordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system."
It seems to me that the phrase:
"Work which might as readily be done by employees"
is the key to answering this argument. The plaintiff was an electrical contractor. He was engaged in work that could not be said to be readily done by non‑electrical employees.
Counsel referred to the decision of the Full Court in Western Australia Bryant v Fawdon Pty Ltd (1993) Aust Torts Report 81‑204 and counsel appeared to concede that the plaintiff's case based upon the Occupiers' Liability Act had difficult prospects of success. In his submissions counsel focussed more on the plaintiff's case based upon ordinary principles of negligence. He urged the Court to make favourable findings about the plaintiff's credibility. He submitted that the expert called on behalf of the plaintiff Mr Connolly was not discredited as a witness but that Mr Tomlinson, called on behalf of the defendant, was less impressive.

With respect to counsel's comments about the plaintiff's presentation as a witness I have no difficulty in accepting that he was doing his best to tell the truth. He was forthright.
But this is not a case that requires a determination to be made upon the basis of credibility. It is more a case where the Court's task is to assess the significance of what occurred. There is no doubt that the plaintiff, being a fully qualified electrician, handled a live cable in the course of his work which he did not know had come away or broken such that there was exposed wire at the end of it. The plaintiff did not know it. The defendant had no idea of it.
The plaintiff's dreadful experience of electrocution is not something for which, in my view, the deceased or his estate can be blamed. If blame is to be put anywhere it must be upon the plaintiff himself for failing to take basic steps that people from his profession, and I refer to Mr Tomlinson, said he should have taken. In my view it has not been established on the balance of probabilities that the deceased was negligent in any way in this matter either on the basis of ordinary principles or as an occupier.
The plaintiff's claim must be dismissed with costs.