Notman v Wesfarmers Limited
[2016] VSC 457
•5 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WANGARATTA
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2015 04131
| CARLI LOUISE NOTMAN | Plaintiff |
| v | |
| WESFARMERS LIMITED | First Defendant |
| and | |
| FLOYD INDUSTRIES PTY LTD | Second Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Wangaratta |
DATE OF HEARING: | 1, 2, 3, 6, 7, 8 and 9 June 2016 |
DATE OF JUDGMENT: | 5 August 2016 |
CASE MAY BE CITED AS: | Notman v Wesfarmers Limited & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 457 |
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NEGLIGENCE – Duty of care – Breach of duty – First defendant seeking contribution from second defendant – Whether second defendant, when performing work on first defendant’s premises, should have foreseen the risk of, and taken precautions to avoid the possibility of, injury to the plaintiff – Location of electrical wiring on premises would not have been suspected by a qualified electrician acting reasonably – Risk not foreseeable – Claim for contribution dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr R Morrow | Nevin Lenne & Gross |
| For the First Defendant | Mr P Jens QC with Mr J Batten | Wisewould Mahony Lawyers |
| For the Second Defendant | Mr C Blanden QC with Ms E Hill | Barry Nilsson Lawyers |
HIS HONOUR:
Introduction
On 19 April 2007, while working as duty manager at the Coles supermarket situated at the corner of Ryley and Perry Streets, Wangaratta (‘the supermarket’), the plaintiff suffered an electric shock when she touched metal shelving in a room which had previously been used to butcher carcasses and to prepare and package meat products, but was now used as a general storeroom (‘the meat room’) In this proceeding, the plaintiff made a claim against each defendant for damages for injury and loss suffered by her as a consequence of the electric shock.
The first defendant was the occupier and operator of the supermarket, and the employer of the plaintiff at the time of the incident. The second defendant performed contract electrical works for the first defendant at the supermarket. In February 2007, the second defendant was contracted by the first defendant to secure some shelves to the wall of the meat room, and did so using brackets attached by Dynabolts (a type of specialised expanding anchor bolt) which penetrated the wall. It was common ground at the trial that it was the work performed by the second defendant in February 2007 which led to the shelves being live with electricity on 19 April of the same year, resulting in the plaintiff sustaining the electric shock.
Against the first defendant, the plaintiff claimed breach of both common law and statutory duties on the basis that the first defendant was responsible for the work performed by the second defendant in February 2007, had failed to provide a safe place of work for the plaintiff and had failed to take heed or respond to a complaint of a previous electric shock suffered in the meat room. Further, more general breaches were also alleged. The claim against the second defendant centred on the alleged failure to take precautions to avoid the possibility of contacting electrical wiring with the Dynabolts when performing the work fixing the shelving to the meat room wall in February 2007.
The trial commenced before a jury on 2 June 2016. On 7 June, counsel for the parties announced that settlement of the proceeding had been reached between the plaintiff and the defendants. However, the contribution proceeding between the defendants did not resolve. Orders were made confirming the settlement between the plaintiff and the defendants, and the plaintiff took no further part in the trial. The defendants requested that I proceed to hear and determine the contribution proceeding as a cause.
Counsel for the first defendant relied on s 23B(4) of the Wrongs Act 1958 as providing the basis for continuing the prosecution of the contribution claim. Counsel for the second defendant did not take issue with that submission.
There were essentially two factual disputes between the defendants. The first, and by far the most significant in terms of the outcome of the contribution proceeding, was whether the second defendant, when undertaking the work in February 2007 affixing shelving to the meat room wall, should have foreseen the risk of, and taken precautions to prevent, the Dynabolts contacting potentially live electrical wiring.
The second issue was whether the first defendant had received notice of a previous electric shock suffered by a person coming into the contact with the shelves in the meat room. In particular, it was alleged that Ms Kelly Adamo, a contract cleaner who performed cleaning work at Coles during the period in question, had received a shock from the shelving in the meat room which she had reported to the night duty manager employed by the first defendant.
Background
The plaintiff’s evidence
Ms Notman gave evidence that she had started working at the supermarket when she was about 15 years of age, in about 1996, and had continued to do so until her employment was terminated in 2009. She commenced a full-time position there in 2006. Her duties included working on the service desk and acting as front-end store manager at night.
On Wednesday 18 April 2007, the plaintiff started work at Coles at around 3.15 pm. She was acting as duty manager that day, and her evidence was that she was required to handle meat and bakery markdowns, as well as additional tasks recorded in the staff communications diary. On the day in question, the instructions in the diary required that Ms Notman unload all the boxes of ‘green bags’ from the rolling cage in which they had been delivered and put them away in the shelving in the meat room out the back of the supermarket. Counsel for the plaintiff called for the production of the diary by the first defendant, but it was not produced.
The plaintiff was shown photographs of the meat room, and identified the shelving onto which she had been placing the ‘green bags’. She stated that she went into the meat room just before or around 2.00 am, and commenced to unload the bags from the rolling cage onto the shelving. She was unable to find a safety step, so stood on a milk crate in order to gain some height to enable her to place some boxes on the top shelf. As she stepped up onto the milk crate, she grasped the shelving with her free (left) hand. In the plaintiff’s words, what happened then was as follows:
Soon as I grabbed hold of the racking it was like somebody had smashed me over the back of the head with a baseball bat and everything went white and the next thing I knew I was standing about two or three metres from the racking and my left arm was just there, like twitching.
Ms Notman stated that, at the time she grasped the shelving, she had not known that it was live with electricity.
After the incident, the plaintiff finished the task of putting the bags on the shelves. She then left the meat room and went to the bakery, where she had a conversation with two bakers, the content of which she was unable to recall though she remembered one of them saying something to the effect of ‘Did you hit the pallet racking in the meat room?’. She then made a note of the incident in the staff communications diary, and went home.
The plaintiff stated that she had never received any prior electric shock in the meat room, rejecting allegations made by the second defendant that she had received small electrical shocks from the shelving in the lead up to the incident, and that she had reported those shocks to other employees of the supermarket. Nor had she known of any prior instances of electric shock being caused to anybody else by that shelving. She stated that she did not know that the racking was unsafe when she touched it. When cross-examined about the contract cleaners who were often there during her shift at Coles, the plaintiff said that their position was such that they could easily have told her or another Coles employee if one of them had suffered a shock. She made no mention of any of them having done so.
The view
The Court conducted a view at the supermarket on the morning of 8 June 2016, during which I made the following observations. The meat preparation room is rectangular in shape. Immediately to the right upon entering the room are a number of cold storage units, which are located along one of the short sides of the room. The shelving in question, shown in the tendered photographs, stands along one of the long sides of the room.
Features in the room pointed out by the parties included:
·a group of about four electric leads emanating from the ceiling, some metres in front of the cold storage units, terminating in plugs which were located above a work area and sink;
·two small pipes emanating from the ceiling, very close to and above the shelves, said to be relevant to the thermostat control for cooling within the room;
·a stainless steel plate on the wall at the left‑hand end of the shelves, said to cover the likely point of fixture of an apparatus which had since been removed;
·stainless steel tracking emanating from the ceiling and running along the front of the shelves to the far wall from our point of entry, then turning in a U and travelling back some distance, which was tracking for meat carcasses relevant to the original use of the room and which was suspended not from the lowered false ceiling but from the concrete structure above it;
·the tiled floor of the room, and the tiled walls including behind the shelves, the join between the floor and the walls being curved in a manner which prevented the shelving from being set back flush against the wall;
·brackets bolted to the rear of the shelving unit leading back to the wall, then attached to the wall by Dynabolt;
·an electric switch above a sink on the short wall at the opposite end of the room to our point of entry, with an external conduit running from the ceiling to the switch. Below the switch was a sink, and to the right of the switch a flat white electrical point cover without a switch; and
·quite a number of white domes attached to the ceiling, said to be points from which electrical leads had previously emanated for power equipment used in the meat room.
We exited from the meat room into a coolroom through a door set approximately midway along the short wall furthest from our original point of entry, then exited from this room, turning back to the corridor which ran along the other side of the wall to which the shelving was attached. On that wall we saw an electrical fitting with two light switches. A photograph of the corridor showing the light fitting was tendered. Above this fitting, running vertically to the ceiling along the wall, was a conduit said to house the electrical wiring leading to the light switches. A few metres to the right, fixed to the same wall, was a fitting with two electric sockets. There was no external conduit or wiring running to that fitting. We were also shown the plant room, located on the floor above and a relatively short distance from the meat room.
The case against the second defendant
Simon Adams
Mr Adams said he qualified as an electrician in 1988, and has been employed by the second defendant, Floyd Industries, for 11 years.
In the course of that employment he attended the Coles store in Wangaratta between 15 and 19 February 2007 in order to do some work on the racking in the store. A service sheet was filled out by Mr Adams after his attendance at Coles, which Coles retained. Under the description of works completed for 17 February, the service sheet reads:
‘Bolt down or fix to wall Dexion racking in meat prep room’
Mr Adams gave evidence that he used 40 mm Dynabolts to secure the shelves to the wall in the meat room because it was a hollow wall. He said that if a longer Dynabolt was used it would protrude into the wall cavity and spread out when it was done up, which would mean that it would slide rather than holding.
Mr Adams’ next involvement with Coles in relation to the racking was on 19 April 2007. At this attendance Mr Adams was told that someone had suffered an electric shock in the meat packing room. He and Mr Floyd conducted a test of the shelving in the meat room with a multi-meter and identified that it was live.
Mr Adams and Mr Floyd identified a light circuit as the source of electrical current to the shelves. It was then that Mr Adams and Mr Floyd found the light switch on the other side of the wall to which the shelving was attached. Mr Adams stated that he was not aware that there was a light switch on the back of the wall at the time he affixed the shelving in February 2007. In cross-examination, Mr Adams accepted that if he had checked the outside wall in February 2007 he would have known there was a switch on the wall immediately adjacent to where he was securing the shelving inside the meat room. However, when it was put to Mr Adams that the switch must have been connected to wiring he responded that it would not have been ‘running down the inside wall’. Mr Adams also gave evidence in chief that at the time he fixed the shelving the Australian Standard stipulated that wiring within walls was meant to be 50 mm deep within the wall.
After having located the light circuit, Mr Adams then went up to look through the manhole into the roof space above the point at which the racking was affixed and found the wires that connected the light switch. Mr Adams identified a photograph taken in the ceiling space above the false ceiling in the meat room, showing the wires which led to the light switch running down the wall immediately beneath the tiles which formed the meat room wall surface. He said:
… you can see the wires going down the wall under the tiles and that’s where I think — where the Dynabolt must have touched that cable.
Mr Adams stated that he had not entered the manhole in the roof prior to fixing the shelving to the wall. In cross-examination, Mr Adams conceded that if he had entered the manhole in February 2007 he would have seen the wiring going down and would have regarded it as possible that wiring continued down immediately beneath the tiles. However, Mr Adams stated that there was no need to go and check in the roof and that, according to the Standard there should not have been wiring behind the tiles. In re-examination, Mr Adams said that he has never seen wiring done in the way it had been done in the meat room that is, behind tiles on a wall.
After discovering the light circuit that was responsible for causing the rack to be live, Mr Adam disconnected those wires from the larger bundle of wires in the ceiling space, which had the effect of isolating the light switch and disconnecting the racking from the circuit. Mr Adams stated that he then installed a conduit running down the wall on the outside of the wall to the light switch, and reconnected the light switch.
Mr Adams gave evidence as to certain checks or inspections he undertook prior to commencing the work of affixing the shelving to the walls on 17 February. He stated that ‘I do a visual check to see if there’s any electrical equipment on the walls. I note it’s a wet area, so there shouldn’t be anything in the wall — traced into the wall. And I didn’t see anything there that’s an issue’. Mr Adams stated that ‘in certain areas there shouldn’t be any wiring because we follow a standard’ and that the meat room would be classified as a ‘wet area’ where there should not be any wiring. When he did the work in February 2007, he had no concern about the possible presence of electrical wiring behind the wall.
Mr Adams stated that he filled out a job safety analysis or assessment prior to undertaking the initial work of affixing the shelving to the wall. He could not recall whether there was any identification of potential hazards in the job safety assessment, the document itself having been lost. In cross-examination, Mr Adams conceded that he did not conduct any electrical checks in completing the work done in February 2007. This, he said, was because he was not doing any electrical work. Mr Adams also stated that, in February, no electrical drawings were provided to him of the area.
In cross-examination, Mr Adams accepted that when undertaking work to secure any type of equipment into a wall at a commercial premises one of the matters to be considered is what may be in the wall. He accepted that it is a possibility that when drilling into a wall in commercial premises there is a risk of drilling into electric cabling. Mr Adams accepted that given that the room had operated as a meat room, that gave some indication that there could be electrical wiring available for the purpose of operating the equipment. However, Mr Adams said there was no real possibility that there was electrical wiring behind the wall, and that there should not be any wiring there due to the Standards, which state that in a wet area electrical wires need to be exposed on the surface of the wall and housed within conduits.
Robert Floyd
Mr Floyd is an electrician by occupation, and company director of Floyd Industries Pty Ltd (the second defendant). He did his original technical schooling between 1964 and 1968, followed by an apprenticeship as an electrician. He also taught industrial electronics for several years.
Mr Floyd started Floyd Industries in Wangaratta in 1973, specialising in refrigeration mechanics and electrical work. The company worked for a variety of local, and other, businesses and at the time of the incident in 2007 had had a contract with Coles to do its general maintenance work for at least 20 years. The maintenance work for which it was contracted included air conditioning, refrigeration and electrical work.
Although affixing the shelving to the wall in the meat room was not the type of work which Floyd Industries generally undertook for Coles, Mr Floyd’s evidence was that they performed it on the occasion in question because it was ‘expedient’ for Coles, which required that the work be done quickly for the purposes of complying with WorkCover requirements. The job had somehow been overlooked, and Floyd Industries was contacted in February 2007 and asked to complete it, as they already had an account with Coles and there were only three days remaining before the next WorkSafe inspection. It was allocated to Mr Simon Adams, an electrician who had worked for Floyd Industries for 11 years. Mr Floyd’s evidence was that although Mr Adams was an electrician by trade, he had had experience in bolting equipment to walls (though not racking specifically) and was well aware of the relevant regulations and dangers.
Mr Floyd said that he received a phone call from Coles reporting the electrical shock incident on the morning of 19 April 2007, and was at the supermarket within 15 minutes. Mr Adams was called in to provide urgent assistance, because the job he was allocated at the time was one which could be cancelled.
Once Mr Adams arrived at Coles, Mr Floyd’s evidence was that the two of them embarked upon a process of confirming the nature of the problem that had caused the electric shock, and trying to track down its source. Using a device known as a ‘multi-meter’, they ascertained that the racking was live. It was not obvious why this was so, and the process of ascertaining that involved isolating circuit breakers in the store’s plant room upstairs one by one until electricity was not running through the racking. Mr Floyd and Mr Adams removed the goods off the rack in an attempt to understand how it could have become live, then disconnected the brackets from the wall while leaving the bolts in. Their inspection of the inside of the ceiling assisted them in their discovery that the lighting circuit in there had a switch on the other side of the wall. They then disconnected the wiring relating to the relevant lighting circuit. Mr Floyd’s evidence was that he had not ‘ever seen anything like [that style of wiring] before in [his] life’. Mr Floyd said further that the light switch on the other side of the wall should have had wiring external to the wall running to it. He said that even in an area that was not a wet room the wires should have been 50 mm behind the wall surface, and noted later that the fact that the wiring was not at least that depth within the wall was the ‘most illegal thing’ about the set-up in the meat room. In cross-examination, he conceded that despite holding this view, he had not mentioned it in his report to the Occupational Health and Safety representative after the investigation and repair.
Mr Floyd said that it was possible to run the electric wiring down through the wall cavity, if there was a conduit providing mechanical protection so that the electrical wiring cannot be damaged. He referred to the two power points on the back of the meat room wall in the corridor, to which there was no external wiring running. Mr Floyd said his understanding was that the cable would run down inside the cavity of the wall, which could only be legal if the cabling had mechanical protection. Mr Floyd was asked:
Q:Is there any way of knowing whether the wiring to that power point runs down the wall cavity or runs, as we see there [with the light switch], down immediately below the tiles. Is there any way of knowing which of those is correct?
A:No. The only way we could answer that, and it’s probably relatively easily answered, is that we could go and take the power point off and that would tell us and that’s the only answer I could have.[1]
Mr Floyd’s evidence was that there was no more dangerous area to get a shock than a wet room such as the meat room, as you could expect a shock received in such a place to be severe. It was for this reason that wiring ought to have been external to the wall, which would also have allowed tradesmen going into the meat room to know that they could put fittings and fixtures into the wall without risk of contacting electrical wiring.
Mr Floyd said that he and Mr Adams knew that under the Australian Standards there should not have been any wiring in the wall, so that it should have been safe to install Dynabolts into the wall to secure the shelves in position. Mr Floyd’s evidence was that if he had been doing the job securing the shelving, it would never have entered his mind to have looked through the manhole into the ceiling, or to check at the back of the wall for the light switch, because it was a modern facility and he assumed he was protected by the Australian Standards.
When asked whether, upon considering the installation of the Dynabolt, he thought that it had been done appropriately, Mr Floyd stated that there was nothing on the wall that would have caused him to pause or to install it differently. He pointed out that as a company that specialised in the industry, which is a heavily regulated trade because of the associated dangers, they were well aware of ‘what goes on and what doesn’t go on’. Given that the Coles building was a relatively modern structure, he and Mr Adams went in with the mindset that the electrical works within would comply with the relevant regulations — that is, that there would be no wiring running down on the inside of the wall, and that the wiring associated with the light switch would be on the same side of the wall as the switch itself.
This conclusion was reinforced by Mr Floyd’s observation that putting the wires in behind the tiles would have been much harder than running them down inside the wall cavity, or down a conduit on the other side of the wall. He also said that he would not have examined the back side of the wall before drilling, for the same reason. He rejected the assertion in cross-examination that such a failure would be negligent, saying that if he had seen the light switch on the other side of the wall then he would have assumed that Coles had assured that the installation of its wiring met Australian standards. Mr Floyd also denied that there were ‘cues’ which should have alerted Mr Adams to the risk that there was possibly electrical cabling behind the meat room wall which required investigation before putting fixings in the wall. In particular in relation to the light and power switches on the back of the meat room wall in the corridor, Mr Floyd said that as an electrician working at Coles you had a clear idea that previous tradespeople would not position electrical wiring illegally, so ‘we should not be expected to go into a store, take switches off the wall every time we go in there to look to see if the wiring is installed mechanically, protected properly, it’s been put in.’ As a qualified electrician, ‘… there is no reason on God’s earth to expect that anybody would illegally wire behind the tiles.’
A model of the meat room wall to which the shelves were secured was made by Mr Floyd and Mr Adams, and was in court during the trial. Four photographs of the model were tendered. The photographs showed that the model was comprised of three of the Besser bricks, which are made of concrete and have hollows down the centre. On the front surface of the bricks was a tile adhesive material, and affixed to that were seven tiles. There were four wires running down behind the tiles on the model, which represented the wiring associated with the circuit in question. On the front of the tiled area was a metal bracket, and affixing that to the model was a 40 mm Dynabolt. The bolt had been drilled through the tile, through the adhesive and into the brick. Mr Floyd said that once the Dynabolt, which had a metal sleeve on the back of it, had been inserted to the appropriate depth then part of the bolt would still be sticking out of the wall, and the bracket would be attached to that with a nut and a washer. As the nut was tightened, the metal sleeve at the back of the Dynabolt would expand, forcing it against the surrounding brick area and holding the whole thing solidly in place. If the bolt was too long then it wouldn’t work, as the metal sleeve would not tighten up inside the wall. The combined thickness of the ceramic tiles and the concrete of the blocks is such that a 40 mm Dynabolt placed in the wall would not intrude into the hollow cavity of the block.
The model, along with oral evidence given in respect of it, leads to the conclusion that electrical wiring from cabling above a false ceiling in the meat room ran down the meat room wall behind the tiling, and then went horizontally through the wall to the light switch in the corridor on the other side of the wall. Because the wires were just beneath the tiles, rather than in a conduit external to the wall on the corridor side, or running down the cavity in the brickwork, one of the Dynabolts used to secure the shelves was able to come into contact with one of the wires, resulting in the shelves being live with electricity. The shelves were not live all of the time, but only when the light switch on the other side of the wall was turned on.
The electrical plans for the Coles store were provided to the Court and Mr Floyd was questioned in relation to them. He said that access to such plans would usually occur as a matter of course with any client, but that when Mr Adams undertook the work at the store in February 2007 they were not provided. Mr Floyd suggested that this was because of the urgency with which the work was undertaken, noting that the plans were not kept at the store but down in Melbourne. He said that, had Floyd Industries requested them, they could have received them. Similarly, they were not used when Mr Floyd and Mr Adams attended the store together in April of that year, following the incident involving the plaintiff. Their instructions normally came from the Coles planning group in Melbourne, where a number of engineers were employed. Usually they received documentation needed to carry out the job, and details of any safety considerations.
Philip Naughton
Mr Naughton is a building consultant working for Buildspect Consulting, who provides expert evidence to the courts and insurers on building matters. On 20 November 2015, at the request of the first defendant, Mr Naughton conducted an inspection of the meat room at the supermarket, the hallway on the other side of the meat room wall and the substation located above the meat room. Mr Naughton stated that the purpose of the inspection was to determine if there were any cues to alert a tradesman as to ‘potential dangers behind the walls’.
Mr Naughton stated that immediately upon walking into the room, he had identified a number of plumbing, electrical and mechanical and air conditioning systems that penetrated the walls and ceilings of the room. In close proximity to, and directly above, the Dynabolt that came into contact with the lighting circuit, he identified a mechanical air vent. He stated that these visual cues should have shown any tradesman that there were a number of hazards that needed to be considered before any penetration of the wall was undertaken. He also said that certain factors were suggestive of there being wiring in the ceiling, and referred particularly to the fact that the meat racks suspended from the ceiling would not have been able to be supported by a plaster structure. It was very clear, he said, that the racks would have needed to penetrate the plaster and be attached to a concrete or steel structure above it that could carry the relevant weight. This, he said, suggested that the ceiling was suspended and that there was power running through it.
Mr Naughton then used a ladder to look into the roof cavity above the shelving. It contained wiring which was no greater than half a metre from the manhole, and was immediately visible once one put one’s head through the manhole. When referring to a photograph he had taken of the wiring inside the roof space, Mr Naughton gave the following evidence:
What the photo and the wiring inside indicates is that the cabling had been terminated by someone after the event and made safe, but that wiring, had someone put their head up into the cavity and had a look would have been easily visible and quickly determined that there was a hazard behind the wall where the fixing was about to be installed.
Mr Naughton gave evidence as to the procedures which he would personally have followed in undertaking the task of bolting the shelving to the wall in the meat room. He said that before commencing the work of attaching shelving to a wall with Dynabolts, he would typically assess the site and complete a ‘JSA’ (Job Safety Analysis). This process would likely lead him to use a ‘sensor or … reader to sweep over the wall and identify any metal objects…such as electrical cabling and copper piping…’. He stated that he would generally ask the employer for working drawings, or ‘as-built’ drawings, to help identify any cabling or plumbing systems that may be in the wall. After the fixing had been made, he would then test to ensure that no wires had been enlivened, and that the metal fixing itself had not been enlivened either. If the drawings were not available, Mr Naughton said that he ‘wouldn’t carry out the activity until [he] had confirmed that [he] needed to’, and that he would have put his head into the ceiling cavity to see what was up there.
Mr Naughton was then taken to an electrical drawing that formed an attachment to his expert report. He explained that the drawing showed the close proximity of the electrical main distribution board (which was located above and adjacent to the meat room) to the location of the proposed metal racking, and to an electrical light switch directly opposite the metal racking in the hallway. Mr Naughton stated that the information in these drawings would render any contractor well aware that there were electrical circuits embedded in the wall, or in close proximity to where the fixing was going to be.
In cross-examination, Mr Naughton conceded that in preparing his report he had made certain assumptions, including that the electrical contractor who had undertaken the work on the shelving had done earlier electrical work for the supermarket in 2004, that they therefore knew about and had access to the drawings associated with that earlier work, and that they were responsible for the incident in which the plaintiff received the electric shock.
Mr Naughton confirmed that he had no electrical qualifications, and that he was not aware of what wiring regulations applied or of the relevant Australian standards.
Darren Margerison
Mr Margerison is a licensed electrical inspector, registered electrical contractor and licensed electrical worker. He is also a committee member of Standards Australia in relation to electrical wiring rules and other standards-related matters. He has been inspecting electrical installations since 1986, and is therefore familiar with the various standards of wiring systems over time. At the request of the second defendant, he visited the supermarket on 26 February 2016 in order to inspect the area. He was advised, by way of background, that the plaintiff had suffered an electric shock in April of 2007 and that it had been determined subsequently that the shelves she had grasped were live because a bolt had nicked the insulation on some wiring in the wall to which they were attached. He was also advised that the wiring in the room had been found to run directly behind the tiles.
Mr Margerison gave evidence that the type of installation of wiring which had occurred in the wall behind the shelving which caused the plaintiff’s shock had ‘never been an appropriate way of doing it’, in that it had never complied with relevant standards. He stated that according to the Standards, there was a ’50 mil rule’ whereby cabling had to be at least that distance within a wall, to allow the wall to be penetrated with some kind of fixing. This was to prevent somebody who was not skilled from putting something into the wall and hitting the cable. If it was not possible to achieve that depth, then the cabling was supposed to be encased in something such as a conduit external to the wall.
He said that, given the type of wall construction, the cabling should have been inside the cavity created by the concrete blocks. This would have meant that any object driven into the wall that was long enough to touch the cabling would have pushed it back, rather than pinning it and drilling into it.
Mr Margerison’s understanding was that the circuit would only have been live when the light switch was turned on, meaning that the flow of electric current through the Dynabolt and into the shelving only occurred when the light was on. As a consequence, it would only have been possible to test whether the cabling was live if the light switch on the other side of the wall was on. He had been given to understand that the shelving would then have been live with 240 volts.
Mr Margerison identified various other items attached to the wall into which the shelving had been bolted, including an air conditioning controller. When asked if there was anything on the wall that should have put an electrician on notice of the risk that there would be wiring in the area where the bolt was inserted, he identified only a power point to the left of the insertion point with no external conduit, meaning, he said, that you would know that cables would be found 50mm behind it. In respect of the light switch on the other side of the wall, he stated that at the time before its wiring was placed into an external conduit affixed to the wall (which had occurred sometime after the plaintiff received the electric shock) he would have expected its wiring to have come down the inside cavity of the blocks of which the wall was built, and not to have been present under the tiles on the other side.
Mr Margerison’s evidence was that a reasonable electrician would not have suspected, based on external visual cues, that there was a risk that the wiring was behind the tiles in the meat preparation room. As such, the use of a 40 mm Dynabolt to fix the shelves to the walls should have been safe.
Mr Margerison also stated that, in order to be able to locate the wire behind the tiling with a cable locating or tracing device, taking into account the state of that technology in 2007, one would have had to have known that there was cables there, and from where they originated, and that even then it may not necessarily have worked. When questioned by me during cross-examination, he stated that a ‘proximity tester’ might have been able to detect the presence of the wiring and the fact that it was close to the surface of the tiling. However, he noted that distracting signals could be created by the presence of the metal mesh within the wall, which would be inserted into every second or third course of brickwork to help strengthen the wall. This mesh would create signal ‘bleed’ when the proximity tester was close to it, but the signal would be easier to follow further away from the mesh.
Mr Margerison’s evidence was that in roof cavities of the type in question, cabling could descend into the tiles in the manner that the photograph showed but then extend back in a horizontal direction, then down into a cavity. In cross-examination, Mr Margerison explained that in around 1986 or 1987, when he was a relief inspector working in state-wide relief, he did require that tiles be pulled off above the roof line in circumstances where wiring appeared to be going vertically down behind them. This was so, he conceded, because there was a ‘possibility’ that the wiring might have continued vertically down behind the tiles. In all the years that Mr Margerison had been inspecting electrical wiring he had never seen cabling installed in the way that it was in this instance.
Mr Margerison accepted, in cross-examination, that he himself would have investigated what lay behind the tiling above the roof line if he had seen the state of the wiring within the roof cavity above the meat room, but stated that the same could not necessarily be expected of another electrician because he ‘look[s] harder than most electricians would’, due to his knowledge. He said that he would not be critical of an electrician who saw nothing on the site to put him on notice that there might be wiring within the wall of the type that in fact existed.
Analysis
It is necessary to consider whether the risk of injury being suffered by a person such as the plaintiff as a consequence of the February 2007 work performed by the second defendant was foreseeable, and if it was, what precaution the second defendant, acting reasonably, should have taken in response to the risk. Of course, this assessment must be undertaken prospectively. When assessing foreseeability, it is important to consider the nature of the task being undertaken by the second defendant, how that task was performed, and what risks might possibly arise as a result.
The Dynabolts inserted into the meat room wall by Mr Adams were 40 millimetres in length. The combined thickness of the wall tile, the tile adhesive material and the Besser bricks was greater than 40 millimetres. This meant that the Dynabolts inserted by Mr Adams could not intrude into the hollow cavity of the Besser bricks. The wiring in the meat room wall could only have been contacted by one of the Dynabolts used to secure the shelving because it ran directly down the outside of the wall immediately beneath the surface tiles. No other means were identified by which insertion of the Dynabolts into the wall, securing the shelving to the wall, could possibly have led to the electrification of the shelving so as to give rise to the risk of injury by electric shock.
Counsel for the first defendant argued that the risk of electric shock injury associated with the work undertaken by the second defendant, though it may have been small, was not farfetched or fanciful. It was argued that there were simple and straightforward precautions which a reasonable electrician should have taken, such as proper physical inspection, obtaining plans of electrical wiring, or declining to undertake the work in the absence of an appropriate level of satisfaction as to the risk of the presence of wiring, which would have prevented the electric shock injury suffered by the plaintiff.
In relation to the issue of foreseeability, counsel for the first defendant argued, first, that prior to performing the work Mr Adams had done nothing more than undertake a simple visual inspection of the meat room wall, and had proceeded on the assumption that because any electrical wiring in the area would accord with appropriate standards, there was no risk that Dynabolts inserted into the meat room wall would come into contact with electrical wiring.
Second, there were a number of ‘cues’, such as those identified by Mr Naughton, such that any fixing being placed into the wall needed to be carefully considered in light of the risk of electrical wiring running through the wall.
Third, a proper inspection should have involved checking the other side of the meat room wall. Had this been done Mr Adams would have observed the light switches and electrical sockets, the wiring to which was not in conduits external to the wall. This observation required the reasonable electrician to undertake some further inspection or enquiry.
Fourth, there were three further steps which a reasonable electrician should take in response to the observations in two and three above, namely:
(a)remove the cover from the light switch and sockets on the rear of the wall to observe where the wires servicing those switches ran;
(b)use a ladder to access the space above the false ceiling in the meat room to observe relevant wiring; and/or
(c)request wiring diagrams to check the position of the wiring.
Counsel argued that had any one or more of these steps been taken, the risk that wiring ran down the meat room wall immediately beneath the surface tiles would have been identified, and the work inserting the Dynabolts and securing the shelves would then not have been undertaken.
For a number of reasons, taken in combination, I consider that the risk of injury such as that which occurred to the plaintiff was not a reasonably foreseeable consequence of the work undertaken by Mr Adams in February 2007. First, and perhaps most importantly, three very experienced electricians, each of whom I conclude had significant expertise in the trade, had never seen wiring installed in the way that it was in the meat room. Mr Margerison, Mr Floyd and Mr Adams had, in combination, over 100 years’ experience working in the electrical industry. I place particular reliance upon the fact that the evidence of all three witnesses with electrical experience and expertise supports the conclusion that the presence of the wiring directly beneath the tiles would not have been suspected by a reasonable electrician. As counsel for the second defendant submitted, the method of wiring used in the meat room was unprecedented.
Second, each electrician gave evidence that the position of the wires running down the outside of the meat room wall was clearly contrary to applicable standards. Whilst the second defendant is not entitled to simply rely upon an assumption that previous electricians working at the supermarket had undertaken their work in accordance with relevant standards, the fact that this wiring was so contrary to standards applying in a highly regulated industry is a matter of some significance.
Third, there was nothing practical or expedient about placing the wires down the outside of the wall immediately beneath the surface tiles. As Mr Floyd said, this was a harder way to do things. In other words, it was not a shortcut which it might be expected a previous tradesperson working at the premises would be tempted to take.
Fourth, the supermarket building was relatively modern. Mr Floyd, who had considerable experience working as an electrical contractor at the supermarket, said that he had an expectation that at that premises applicable standards would be followed.
Fifth, Coles had its own engineering department which was generally in charge of such contract works, and had wiring and building plans for the building. No issue was raised by the first defendant with the second defendant in respect of risks associated with the work performed by Mr Adams prior to that work being performed.
Finally, I rely upon the evidence of the electrical expert Mr Margerison, who in effect said that there could be no criticism of the manner in which Mr Adams undertook the task of inserting the 40mm Dynabolts into the meat room wall.
I accept that the risk of injury would have become foreseeable had Mr Adams removed the plates to the light switches or electric plugs at the rear of the meat room wall, or had he gone into the space above the false ceiling. In either case he would have observed the path of the wiring, and the possibility of the wiring being contacted by Dynabolts inserted into the wall would have been raised. However, there was no relevant foreseeable risk that required Mr Adams, acting reasonably, to take either or both of the steps of looking beneath the light switch cover or into the ceiling space. Because the risk was not foreseeable, there was no obligation on the second defendant, acting reasonably, to take the sort of precautions identified by counsel for the first defendant. Therefore the contribution claim by the first defendant against the second defendant must fail.
The case against the first defendant
Despite the fact that I have dismissed the contribution proceeding against the second defendant, given that evidence was led and argument was advanced in relation to it, I will say something about the liability of the first defendant. Evidence was given by a number of witnesses as to whether or not the first defendant had notice, prior to the electric shock sustained by the plaintiff, of a previous electric shock suffered by contract cleaner Kelly Adamo.
Kelly Adamo’s evidence
Ms Adamo was, at the time of the incident, sub-contracted to work as a cleaner at the Coles store in Wangaratta. She was employed by Swan Hill (a cleaning company), and worked approximately six nights a week at the supermarket. Ms Adamo gave evidence that she had received an electric shock whilst performing cleaning duties in the meat room. She was unable to recall when this incident occurred though she stated that it happened around 2.00 am or 3.00 am.
Ms Adamo stated that on the night of the incident she was mopping up in the meat room. Ms Adamo recalled that there was water all over the floor and as she reached the mop under the shelving she touched the shelving and got a ‘little joust.’ She said that after she received the shock she immediately dropped the mop and went straight up to John Milne, the night duty manager, to verbally report to him that she had received a shock. Ms Adamo recalled that Mr Milne then said, ‘Yep. Well, I’ll deal with that.’ She did not fill out a written report, and did not recall being asked to do so. She did not report the shock to anyone else.
After Ms Adamo had made the report to Mr Milne she said that she continued on with cleaning for the rest of the night. She did not report the incident to her employer, and conceded in cross-examination that this may have been because she was worried that she had done something wrong.
At a point in time after Ms Adamo received the electric shock she bumped into the plaintiff in the car park outside Coles. Ms Adamo stated that the two were acquaintances and stopped to greet each other. At that time, Ms Notman informed Ms Adamo that she had received a shock from the shelving and was no longer working for Coles. In cross-examination Ms Adamo said that during this conversation she told Ms Notman that she, too, had had a shock, and her impression was that Ms Notman had not been aware of this information before she told her. In examination in chief Ms Adamo said that she was sure that she had received her electric shock prior to Ms Notman having suffered hers. However, in cross-examination, Ms Adamo was not able to explain how she had formed the view that her shock had occurred first.
Other evidence in respect of the previous electric shock
Ms Glenda Delaney, who was the store support manager at Coles, Wangaratta at the time of Ms Notman’s accident, was taken in cross-examination to a document headed ‘Coles Myer Ltd work order’, which had been dispatched on 19 April 2007 at 7.38am. The work order was directed to the contractor Floyd Industries, and had been generated as a result of Ms Delaney reporting the shock incident on the telephone to the Melbourne maintenance team. Under the heading ‘description of the events’ Ms Delaney had written a request that the contractor check the racking in the meat room and noted that ‘since the racking has been bolted to the wall, the cleaner has received an electric shock and last night a staff member received quite a large electric shock after touching the racking.’
Ms Delaney stated that she had made the telephone report to maintenance after having read the planner in the morning. The planner was a book in which managers and assistant store managers were notified in writing of any events that occurred the night before. She also stated that she believed she had spoken to either Carli Notman or Ms Notman’s mother prior to making the call.
It was not clear from Ms Delaney’s evidence how she had learnt that the cleaner had had a shock in order to include it in her entry under the heading ‘description of events’. She stated that ‘it would have either been written in the planner or I would have been told by Carli or her mum…’. However Ms Delaney then stated that there had not been a report of a cleaner having a shock before Carli and if there had been something previous it would have been reported right away. In cross-examination Ms Delaney was unable to say, with certainty, where the reference to the cleaner had come from.
Mr Mathew Parkinson was, at the time of the incident, a baker employed by Coles. He was one of the two bakers with whom Ms Notman said she spoke after she had received the electric shock in the meat room.
Mr Parkinson’s recollection of that conversation was that Ms Notman did not say exactly what had happened, only that she had received a shock while working in the meat preparation room. When questioned about the contract cleaners, Mr Parkinson mentioned that Ms Kelly Adamo, one of those cleaners, had mentioned to him in casual conversation that she had suffered a shock down in the meat room. He was unable to recall where this conversation had taken place, though his recollection was that it had occurred before the plaintiff’s shock, because he might have mentioned to Ms Notman that it had happened before. Mr Parkinson said that he had taken no action in relation to that incident, noting that he thought it ‘was already all reported’ by the cleaners. He was unaware of the existence of a book where details of the incident could be recorded. In respect of the plaintiff’s shock, he said that he had not advised anybody of it either and that the night shift manager, Mr John Milne, was not at the store at the time that it occurred.
Mr John Milne has been employed by Coles for some 30 years, and was at the time of Ms Notman’s accident the duty manager at the supermarket. It was he to whom Ms Adamo said that she gave notice of the electrical shock which she had received in the meat room. Mr Milne’s evidence was that he was aware that Ms Notman had suffered a shock in the meat room at Coles in April 2007, but that at no stage had he been made aware of any other person receiving a shock in the store prior to Ms Notman’s shock, or after it in 2007. He denied having any recollection of a conversation with Ms Adamo in which she notified him that she had received a shock. He stated that if there had been a complaint of a shock, a certain procedure would have been followed, as was the case after Ms Notman’s shock. This involved reporting the incident in the ‘injury book’. Mr Milne stated that there was both an ‘injury book’ and a ‘communications book’ in use. He stated that ‘we still fill out the [injury] book’, rather than the communications book, even if a reported incident did not result in an injury.
At the time of Ms Notman’s accident Mr Brett Phillips was the store manager at Coles, Wangaratta. He gave brief evidence in chief stating that, to his knowledge, there had been no report of any person being shocked prior to the report of the electrical shock received by Ms Notman.
Analysis
Ms Adamo received an electric shock after coming into contact with the shelves in the meat room. It is likely that the cause of the shock suffered by Ms Adamo was the work performed by Mr Adams in February 2007, and that it occurred prior to the plaintiff’s injury.
Ms Adamo says that she reported that incident to Mr Milne, the duty manager. Mr Milne said no such report was made to him, and that if that type of report was made the procedure was to enter it into the ‘injury book’.
Ms Delaney’s report, written on the morning and only hours after Ms Notman’s injury, records the fact of the previous electric shock suffered by Ms Adamo. Ms Delaney was not certain of the source of that information and offered, as possibilities, details in the ‘planner book’ (likely to be the ‘communications book’ referred to by the plaintiff and Mr Milne), or a conversation on that morning with Ms Notman or her mother. Ms Notman denied knowledge at that time of Ms Adamo’s electric shock, and says that she had no conversation with Ms Delaney on that morning. There was no explanation as to how the plaintiff’s mother would have known of the electric shock suffered by Ms Adamo. Mr Parkinson was told by Ms Adamo about the electric shock, which he thought had been reported by her. Neither the communications book nor the injury book was produced by the first defendant.
I consider the most likely explanation for the information appearing in Ms Delaney’s report is that a previous report had been made by Ms Adamo to a Coles employee. I accept the clear and straightforward evidence given by Ms Adamo that she suffered an electric shock, which she reported. Whether the report was made to Mr Milne or some other Coles employee is less clear.
The result is that there was a failure by the first defendant to respond to this information so as to protect its employees, including the plaintiff, from electric shock injury. On that basis alone the plaintiff would have succeeded in her claim against the first defendant.
There was at least one other basis which was consistent with the pleadings but not fully argued, given the manner in which the case was run, on which the plaintiff was likely to succeed against the first defendant. The first defendant had a planning department employing engineers with access to wiring plans of the supermarket. The first defendant owed a non-delegable duty to the plaintiff in commissioning the February 2007 works to ensure that those works were performed safely. According to Mr Floyd that was the role performed by Coles in respect of other commissioned works, but not with the February 2007 works. The failure of the first defendant to bring to the attention of the second defendant the non-standard wiring in the meat room was likely to be a sufficient basis to establish breach by the first defendant.
Conclusion
The risk of injury of the nature suffered by the plaintiff was not a risk which the second defendant, acting reasonably, should have foreseen at the time the work was performed by Mr Adams at the supermarket in February 2007. In the circumstances, the contribution claim by the first defendant against the second defendant is dismissed. I will hear from the parties as to appropriate orders, including as to costs.
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