Larkin v Capricornia Electricity Board

[1993] QCA 484

IN THE COURT OF APPEAL

[1993] QCA 484

SUPREME COURT OF QUEENSLAND

Appeal No. 89 of 1993

Brisbane

Before The President
Mr Justice Davies
Justice White

[Larkin v. Capricornia Electricity Board & Anor.]

BETWEEN:

GEORGINA MAY LARKIN

(Plaintiff) Respondent

AND:

CAPRICORNIA ELECTRICITY BOARD

(Defendant) Respondent

AND:

DONALD GEORGE GRAHAM

(Third Party) Appellant

JUDGMENT OF THE COURT

Judgment delivered the Third day of December 1993

This is an appeal from a judgment in the District Court at Rockhampton on 16 April, 1993. The issue for decision concerns the meaning and effect of section 122 of the Electricity Act, 1976.

The plaintiff in the action recovered a judgment for $24,000.00 against the respondent, which in turn recovered judgment for half that amount on a third party claim against the appellant. On this appeal, the appellant seeks to have the judgment against him set aside on the grounds that (i) by virtue of section 122 of the Electricity Act the respondent was not "liable" to the plaintiff within the meaning of sections 5(c) and 6 of the Law Reform

(Tortfeasors Contribution, Contributory Negligence and

Division of Chattels) Act 1952 and (ii) it is not "just and equitable" within the meaning of that Act to require the appellant to contribute in view of the respondent's refusal to rely upon section 122 of the Electricity Act in answer to the plaintiff's claim. The respondent accepted that the appeal should succeed if it could have relied on section 122 to defeat the plaintiff's claim in the action. On the other hand, the appellant did not dispute his liability to the respondent if it could not have escaped liability to the plaintiff by reliance on s.122.

The plaintiff was injured when digging a shallow hole
in the yard adjacent to her unit in order to plant a shrub.
The spade which she was using pierced an electrical submain
conveying electricity to her unit. At that point, the
submain was only about 150 millimetres under the surface of
the ground and was unprotected from intrusion from above.
The respondent was the relevant electricity board and the

appellant was the electrical contractor who installed the

submain.

The trial judge found that the appellant had been negligent and in breach of his statutory duty in the installation of the submain and that the respondent had been negligent and in breach of its statutory duty in that it had failed to inspect the installation properly. Under section 175 of the Electricity Act, the respondent was required to inspect the installation "in its entirety". See also Regulations 46 & 49. However, the trench in which the submain had been installed was filled in prior to the respondent's inspection. In holding that the respondent was liable to the plaintiff, the trial judge said:

"In my view, failure on the part of the inspector to ensure that there was proper protection for and depth of underground conductors - in other words that the Wiring Rules had been complied with - amounted to a breach of the Board's duty under that Act. In my view, it also amounted to a breach by the Board of its common law duty of care."

Later, he said:

"The defendant's duty under the Act was to properly inspect the installation. It carried out an inspection and it connected supply thereafter. What it failed to do in this case was to properly inspect the installation. Following that failure it connected supply. The failure to properly inspect the installation before connection of supply was not, in my view, a thing done for the purposes of the Act or done in good faith and purporting to be for the purposes of the Act. Moreover, I doubt whether the connection of supply, in circumstances where no check had been made to ensure the provisions of the Wiring Rules had been complied with as to depth of conductors and mechanical protection, was a thing done for the purposes of the Act or done in good faith and purporting to be for purposes of the Act".

So far as presently material, section 122 of the

Electricity Act is in the following terms:

"Indemnities (1) No liability shall be incurred by an Electricity Board ... on account of anything done for the purposes of this Act or done in good faith and purporting to be for the purposes of this Act."

In holding that section 122 did not apply, the trial judge said:

"A provision such as s 122 should be strictly construed; Board of Fire Commissioners of New South Wales v. Ardouin (1962-63) 109 CLR 105; Australian National Airlines Commission v. Newman (1987) 162 CLR 466. As was the situation with the particular section of the Act in Newman's case, s.122 says nothing about omissions or the failure to perform a duty. Section 156 of the Act is an example of a provision of the Act concerned with the Board's failure to do something not due to negligence or default on its part.

In the circumstances, in my view s.122 provides no immunity to the defendant from the plaintiff's action."

The High Court decisions to which the trial judge referred do not provide an answer to the present problem; ANA v. Newman emphasises the need to identify the specific cause of the plaintiff's injury to see whether it attracts a statutory protection, but leaves open the question whether omissions as well as acts of commission may be said to be "done" within the meaning of a statutory provision such as section 122 of the Electricity Act: see also (1985) 2 NSWLR 573 at p.579. The respondent's primary argument is that the question left open in ANA v. Newman should be answered in the negative and that it should be concluded that, here, relevantly nothing was "done" by the respondent. On the contrary, something which should have been done was not done; an inspection which should have been performed was not carried out.

However, there is formidable authority to the contrary. In Jolliffe v. The Wallasey Local Board (1873) LR 9 CP

62, the Board had duties under the Wallasey Improvement Act, (1864), and was given power to construct a pier or landing stage at New Brighton. Section 139 of the Public Health Act, 1848 (11 and 12 Vict. c.63), which applied to the Board, enacted that no writ, etc., was to be sued out against the Board "... for anything done or intended to be done under the provisions of the Act, until the expiration of one month next after notice in writing shall have been delivered ...".

To quote from the headnote: means of chains stretching from either end to the shore, and by other chains attached to anchors fixed by permission in the bed of the Mersey. To mark the spot where the anchors lay, buoys composed of blocks of timber were placed; but these were at certain times of the tide drawn under the surface of the water.

"In supposed pursuance of the Act of 1864, the Board
proceeded to erect and place a pier or landing-stage at
New Brighton, the pier consisting of a permanent
structure built of timber and iron partly on the land
and partly upon piles screwed into the foreshore down
to low water mark and of a floating stage in the river,
which rose and fell with the tide, and was connected
with the pier by a bridge one end of which was attached
to the floating stage and the other to the end of the
pier. ...

A steam-tug of the plaintiffs, whilst lawfully and properly navigating the Mersey, struck upon the stock or arm of one of the anchors, and was damaged.

On a special case stated by an arbitrator for the opinion of the Court ..., it was found that 'the defendants, in doing what they did, acted in the bona fide belief that they were acting under the powers given them by the their Act of 1864 and the Acts incorporated therewith;' that they were not guilty of any negligence in the mode of laying down the mooring anchors; but that they 'were guilty of negligence in not placing a buoy of sufficient size and dimensions over the anchor to resist the current of the ebb and flow of the tides, so as properly and efficiently to indicate the position of the anchor below:' -

Held, that the Board were authorised by the Wallasey Act of 1864 in constructing and placing the pier, landing-stage, and anchors where they did; and that, upon the finding of the arbitrator, they had been guilty of negligence in not sufficiently buoying the anchor so as at all times of the tide to indicate to persons navigating the river the spot where it lay; that they were entitled to a notice of action under s.139 of the Public Health Act (1848), ... the omission sufficiently to buoy the anchor being 'an act done' by them with a bona fide belief that they were exercising the powers conferred upon them by the last mentioned Act."

At pp.81-82, Keating J. said:

"It has been suggested that protection is not intended to be given by clauses of this description in cases of nonfeasance. But that that is not so, is clear, from the cases of Davis v. Curling 8 Q.B. 286, Newton v. Ellis 5 E & B 115; 24 L.J. (Q.B.), Wilson v. Mayor, &c., of Halifax Law Rep. 3 Ex. 114, and Selmes v. Judge Law Rep. 6 Q.B. 724, all of which seem to me to establish that a case of what appears to be nonfeasance may be within the protection of the Act. But I think we are not driven to consider that question. What is it that is complained of here ? It is this. It being the duty of the defendants to buoy an anchor which they had sunk in a navigable river, they have omitted to buoy it in a sufficient manner. What they did was, to attach by a light chain fixed to the ring of the anchor stock a piece of floating timber: and the finding as to this is as follows:- 'The said piece of timber was wholly insufficient to indicate the position of the anchor; and the defendants were guilty of negligence in not placing a buoy of sufficient size and dimensions over the anchor to resist the currents of the ebb and flow of the tides, so as properly and sufficiently to indicate the position of the anchor below.' It seems to me that that clearly was an act which, if done and intended to be done (as the arbitrator has found) in pursuant of the Act, brings the case within the protection of the clause requiring a notice of action.

The protection of a clause entitling a defendant to notice of action is only required where something has been done which ought not to have been done, or something omitted which ought to have been done. It seems to me that the defendants in this case were clearly entitled to notice, and, none having been given, they are entitled to judgment. I repeat that I regret extremely that a case of this importance should be disposed of on what some may think a merely technical objection."

Brett J. said at pp.86-88:-

"Now, two objections were urged by Mr. Aspinall. In the first place, he says the thing complained of here is a mere nonfeasance, and therefore not 'an act done'. If I rightly understand the judgments in former cases, the rule is this, - where a man is sued in tort for a breach of some positive duty imposed upon him by an Act of Parliament, or for the omission to perform some such duty, either may be an act done or intended to be done under the authority of the Act, and if so done or intended to be done the defendant is entitled to a notice of action. In Davis v. Curling 8 Q.B. 286, 289, it was said in argument, 'The declaration shews only an omission; the evidence provided no more; and the injury is not produced by any pursuance of the Act.' But Lord Denman said 8 Q.B. at p.292: 'It is clear that the defendant is charged with a tort committed in the course of his official duty: he is charged, as surveyor, with the positive act of leaving the gravel on the road, where it had been improperly placed, for an unreasonable time. On that simple ground I think it clear that he was entitled notice' Coleridge, J., in Newton v. Ellis 5 E. & B. at p.124, says :'this is not a case of not doing: the defendant does something, omitting to secure protection for the public. He is not sued for not putting up a light, but for the complex act.' And Erle, J., in the same case, says: 'The cause of action is, the making the hole, compounded with the not putting up a light. When these are blended, the result is no more than if two positive acts were committed, such as, digging the hole, and throwing out the dirt: these two united would make up one act.' In Wilson v. Mayor, &x., of Halifax Law Rep. 3 Ex. 114, Kelly, C.B., states the proposition in these terms: 'It has been urged on the part of the plaintiff that the charge against the defendants is not of any act done or intended to be done, but of an omission to erect or cause to be erected a fence between the footpath and the goit, and that the omission to do an act is not 'an act done or intended to be done.' Some authorities have been cited on both sides; but we think that, whatever may be the construction which might be put upon the words of the statute if the question arose in this case for the first time, it is now settled by authority that an omission to do something that ought to be done in order to the complete performance of a duty imposed upon a public body under an Act of Parliament, or the continuing to leave any such duty unperformed, amounts to an act done or intended to be done, within the meaning of these clauses requiring notice of action for the protection of public bodies acting in the discharge of public duties under Acts of Parliament." It would seem from these authorities that, where the plaintiff is suing in tort, nonfeasance is to be considered as 'an act done', within such clauses as these.

But Mr. Aspinall takes another point. He says that, as the anchor was negligently placed out of limits of the board's jurisdiction, the omission to mark its position could not be a thing done or intended to be done under the provisions of the Act; that is to say, that, though a negligent omission may give them a right to notice, yet for a negligence upon a negligence they are not entitled to notice. That proposition cannot, as it seems to me, be maintained. All the conduct which gave rise to the cause of action was something which was bona fide intended to be done by the defendants under the provisions of the Act.

I am of the opinion that the plaintiffs cannot maintain their first cause of action; that they might have sustained the second if they had given a notice of action; but that, not having given such notice, they cannot sustain that. And further, I am of opinion that, if they could have maintained the first as well as the second cause of action, yet for want of notice they cannot sustain either."

Denman J. agreed with the other members of the Court.
Jolliffe was approved by the Privy Council in R. v.

Williams (1884) 9 App. Cas 418. At p. 433, their Lordships said:

"In Jolliffe v. Wallasey Local Board (Law Rep. 9 C.P. 62) it was held that an omission to do something which ought to be done in order to the complete performance of a duty imposed upon a public body under an Act of Parliament, or the continuing to leave any such duty unperformed, amounts to 'an act done or intended to be done' within the meaning of a clause requiring a notice of action, and their Lordships think that the negligence in this case to take reasonable care is a wrong done by or under the authority of the Executive Government."

See also Halsbury's Laws of England vol. 28 para.616 and cases cited.

It is unnecessary for present purposes to decide whether a total omission is legitimately referred to as "done" under a provision such as section 122 of the Electricity Act. This is not such a case. The respondent did not completely fail to carry out an inspection of the appellant's installation but failed to inspect properly by omitting part of the inspection, namely, that which related to the material section of the appellant's work.

The differences between the facts in this case and those in Jolliffe and the differences between the two statutes are not such as to permit Jolliffe to be distinguished satisfactorily. Subject to the other point raised by the respondent, Jolliffe should be followed and the appeal allowed.

The respondent somewhat faintly advanced an alternative argument that section 122 of the Electricity Act should be read down so as to apply only in relation to powers or duties given or imposed by Part III Division II of the Act. Two reasons were given for this. One was that section 122 is contained in that part of the Act. The other was that, otherwise, section 156 of the Act would be otiose. Neither of these submissions has any substance.

Accordingly, the appeal is allowed and the orders below against the appellant are set aside. The respondent defendant must pay the appellant's taxed costs of the action and of this appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 89 of 1993

Brisbane

[Larkin v. Capricornia Electricity Board & Anor.]

BETWEEN:

GEORGINA MAY LARKIN

(Plaintiff) Respondent

AND:

CAPRICORNIA ELECTRICITY BOARD

(Defendant) Respondent

AND:

DONALD GEORGE GRAHAM

(Third Party) Appellant

The President
Mr Justice Davies

Justice White

Judgment delivered 3/12/93

Judgment of the Court.

APPEAL ALLOWED. SET ASIDE THE ORDERS BELOW AGAINST THE APPELLANT. RESPONDENT DEFENDANT TO PAY THE APPELLANT'S TAXED COSTS OF THE ACTION AND OF THIS APPEAL.

CATCHWORDS	ELECTRICITY AND GAS - Electricity - meaning and effect of s. 122 Electricity Act - whether "anything done" includes an omission
to do something.
Counsel:	Mr A Crowe for the appellant
Mr S C Williams QC, with him Mr P A J Howard

for the respondent

Solicitors: Corrs Chambers Westgarth t/a for Greer &

Timms for appellant

Grant & Simpson for respondent plaintiff

Connolly Schirmer & Batts for

respondent defendant

Hearing date: 24 August 1993