Papantonakis, Nomikos v Australian Telecommunications Commission

[1983] FCA 52

Re: NOMIKOS PAPANTONAKIS
And: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION; NORTHERN RESEARCH PTY.
LTD.
(1983) 71 FLR 144 No. NT G6 of 1982
Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Franki(1), St. John(2) and Fisher(3) JJ.

CATCHWORDS

Negligence - Employer's duty of care - Duty of care owed by occupier to special class of invitee.

Negligence - Employer's duty of care - Occupier's liability - Duty of care owed by occupier to "invitee".

HEADNOTE

The appellant was a linesman employed by the Australian Telecommunications Commission (Telecom). The second respondent, Northern Research Pty Ltd, was the occupier of certain premises; it had advised Telecom that it had a fault in a telephone service provided by Telecom and requested that Telecom rectify the fault. The appellant and a junior employee were sent to fix the problem.

In the course of his duties at the second respondent's premises the appellant was replacing a telephone line. He was standing on a ladder resting against a pole when the pole moved suddenly and the appellant fell and injured himself. The appellant sued in negligence and Telecom pleaded contributory negligence. The suit against the second respondent was based on the failure to exercise the care owed to the appellant as invitee.

There were findings by the trial judge that the appellant himself had been negligent in climbing the ladder and that the second respondent had not breached its duty. The findings in relation to the action against the second defendant were on the basis that the danger of mounting the pole should have been obvious to a trained and skilled person such as the appellant.

On appeal, held (per curiam): (1) That the findings and inferences of the trial judge with respect to the action against Telecom should not be disturbed; accordingly the appeal in relation to Telecom should be dismissed.

Held: Per Franki and Fisher JJ. (St John J. dissenting) in dismissing the appeal against the second respondent: (2) That the duty of care owed to the appellant by the second respondent was that owed to an invitee who is a skilled independent contractor; as such it was solely a matter for the appellant to decide the method of performing the work; the invitor was asking for work to be done by a skilled person who must be deemed to have been properly instructed in relation to deciding whether the pole was safe to climb.

Bates v. Parker (1953) 2 Q.B. 231, followed.

Archer v. Hall (1967) 1 N.S.W.R. 107; Walter H. Wright Pty Ltd v. Commonwealth of Australia (1958) V.R. 318; Christmas v. General Cleaning Contractors Ltd (1952) 1 K.B. 141; Pinborough v. Minister of Agriculture (1974) 7 S.A.S.R. 493; Indermaur v. Dames (1866) L.R. 1 C.P. 274, applied.

Per St John J. dissenting: That the second respondent, in substituting a piece of the wire flex, had tampered with the original installation, making it an unusual danger of which the second respondent knew and the appellant had no warning.

Indermaur v. Dames (1866) L.R. 1 C.P. 274; Bates v. Parker (1953) 2 Q.B. 231, referred to.

Christmas v. General Cleaning Contractors Ltd (1952) 1 K.B. 141, applied.

HEARING

Sydney, 1982, September 22, 24; 1983, April 6. #DATE 6:4:1983

APPEAL.

Appeal against a decision dismissing the plaintiff's action for negligence.

J. B. Waters, for the appellant.

G. Hiley, for the first respondent.

O. Downs, for the second respondent.

Solicitors for the appellant: Waters James & O'Neil.

Solicitors for the first respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the second respondent: Mildren Silvester & Partners.

P.H.M.

ORDER

1. The appeal against both respondents be dismissed with costs.

JUDGE1

The appellant Nomikos Papantonakis was a Grade 1 linesman employed by the first respondent, the Australian Telecommunications Commission ("Telecom"). The second respondent, Northern Research Pty. Ltd. ("Northern"), was the occupier of certain premises and it had advised Telecom that it had a fault in a telephone service provided by Telecom and requested Telecom to rectify the fault. The plaintiff together with a more junior employee, Mr Follett, was sent to Northern's premises to rectify the fault.

In the course of his duties at Northern the plaintiff was replacing a telephone line which ran from Northern's switchboard to a store building some distance away. He was working on a ladder resting against a pole and the pole moved suddenly and the plaintiff fell to the ground.

The plaintiff sued Telecom in negligence and Telecom pleaded contributory negligence. The plaintiff also sued Northern in negligence alleging that it erected and permitted the use of an unsafe pole and wire and that it failed to warn Telecom and the plaintiff of the condition of the pole. This claim was based on an alleged failure to exercise the care which Northern owed to the plaintiff as an invitee. Northern also pleaded contributory negligence.

The learned trial Judge found that the plaintiff, who was born in Greece, "was competent" and that:
". . . in his work the plaintiff had a wide range of experience. I do not find he was disadvantaged in proficiency by reason of language difficulties. I am satisfied he was conversant with climbing procedures and with safety precautions which should be taken. I am also satisfied that he knew that when there was a suspicion that a pole was unsafe the appropriate and necessary procedure was to refer it to Telecom whose inspectors would examine it and, if necessary, replace it."

It appears that the normal method of installing a line such as that which ran between Northern's switchboard and the store building to which I have referred was to use wire, which in addition to having the necessary copper connecting wires, also contained high tensile wire which provided some support for any poles to which it was attached. It appears that at the time of the accident a section of the normal wire which contained the high tensile bearer wire had been replaced with a length of ordinary household flex of low tensile strength.

The learned trial Judge found in favour of both defendants. In relation to Telecom His Honour found that the plaintiff had himself been negligent and that there was no breach by Telecom of the duty of care it owed to him. His Honour also found that Northern was not in breach of its duty as an invitor.

The learned trial Judge dealt very carefully with the facts of the case and, in general, the appellant accepted his primary findings of fact but disputed inferences which he had drawn.

I think the learned trial Judge was entitled to make the following findings concerning the way in which the flex had been installed:
"I find Northern, probably using its own labour (and it employed technical staff) altered the line and elevated it so it was well clear of the ground. I find that Northern made up the poles, utilising the metal gate posts previously in existence as the base of the pole and in simple fashion inserting a comparatively long slender metal pipe. It is probable that this work was carried out without the approval of Telecom and without its knowledge. There was evidence of delays being experienced by Northern in obtaining correction of line faults by Telecom and it was perhaps not surprising that Northern altered - and probably extended the line in this fashion. I am satisfied that a length of white coloured domestic flex was used at some stage between pole 3 (on Exhibit P1.) and the dry store shed extension, probably to add to the line following the lengthening of its course. I am unable to find specifically under what circumstances this was done. I am satisfied that it was probably effected by Northern for reasons of practical convenience and that it was probably after this was done that regular trouble was experienced in establishing reliable communication between the switchboard and extension 12 - hence the requests to Telecom to fix the fault. It was against this background that the plaintiff and Follett arrived, properly equipped and trained, to remedy the fault."

His Honour also held that the extension was installed possibly in 1975 but probably in 1976 and that he was satisfied that the alterations were not made by Telecom.

His Honour made certain findings in relation to the pole against which the ladder was resting when the plaintiff fell. They included the following:
(a) "The pole was not of standard design nor construction. It was basically and quite obviously a 'home made' affair."

(b) The top section was not vertical but "the lean of the top section was detectable but not great".

(c) "At no stage was the plaintiff aware that a section of tie wire in the line beyond the pole had been replaced."

(d) The plaintiff was not negligent "in failing to detect the addition of flex before he climbed the ladder".

(e) The plaintiff's decision to mount the ladder supported by the pole was negligent. "The top section was slightly bent, which should have put the plaintiff on his guard."

(f) "The plaintiff told me in evidence that he believed the pole was a 'Telecom' pole. If he was of this belief, which I find hard to accept, it was a belief formed on the most flimsy basis and without adequate inspection."

(g) "Not only was he not required to climb 'doubtful' poles; his training was to the contrary. In such circumstances he should have communicated with Telecom so that the pole could be tested. I am confident Telecom would not have permitted any linesman to mount using a single ladder system."

(h) "I am well satisfied that the decision the plaintiff made (and the decision was his to make as senior man) and his subsequent actions were contrary to his training and to the practices which should have been adopted."

It is sufficient to say that I agree with the findings and inference of the trial Judge in relation to Telecom and that he was correct in dismissing the action against Telecom.

I proceed now to consider the appeal in relation to Northern. The learned trial Judge said in relation to Northern:
"But the primary issue here must be whether the pole itself was to the plaintiff, a trained linesman, in any event an unusual danger within the meaning of Indermaur v. Dames." (1866) L.R. 1 C.P. 274.

He also said:
"I do not consider Northern or the employees of that company who were involved with the pole could reasonably be called upon to foresee that a Telecom employee - or any other person - would mount that flimsily constructed pole by using one ladder, an action that inevitably placed stress on a pole of very doubtful stability. Nor in my view can it be said that those using additional and clearly unsuitable flex for the transmission of phone calls would contemplate that the consequential loss of bracing at the top of the pole would result in injury to a person. The availability of 'cherry pickers' and the like is of common knowledge. Moreover whilst the pole was certainly unusual, it seems to me that the danger of mounting same to a height of 15-16 feet was obvious not unusual, it was a danger which I find was apparent to laymen and should have been apparent to linesmen taking heed of their training and the pole involved."

In my opinion this case cannot be approached only upon the basis of what appears in the judgment in Indermaur v. Dames (1866) L.R. 1 C.P. 274 although that judgment is the foundation to which one looks in a case such as this. That case dealt only with invitees in general and it did not distinguish between a category which may broadly be called that of invitees who were independent contractors or employees of an independent contractor and who were injured when performing a skilled or semi-skilled task and invitees outside that category. In contrast to the plaintiff in the case before us, the plaintiff in Indermaur v. Dames, supra, was not in the first category.

The law on this question appears to be most clearly stated in Bates v. Parker (1953) 2 Q.B. 231. In that case the Court of Appeal considered the liability of the invitor to a plaintiff, an independent contractor who cleaned the invitor's windows regularly and who had been accustomed to steadying himself by holding on to a piece of plywood. Unbeknown to the plaintiff, the invitor replaced the plywood but did not replace the bolts and did not warn the plaintiff of the condition of the loose plywood. The plaintiff sought to steady himself against the plywood but, since it was loose and not secured by bolts, it moved, the plaintiff fell and was seriously injured. The question arose whether the invitor was liable. Goddard C.J. referred to Christmas v. General Cleaning Contractors Ld. (1952) 1 K.B. 141 saying that was conclusive of the case. He said at p.236:
"The answer to that is that if the cleaner had been injured by some defect in the premises which had nothing to do with the work for which he was employed, as, for instance, if a staircase up which he was going to get to the first floor windows inside the house had been to the knowledge of the householder in a defective condition, it would have been the duty of the latter to warn him. To take another instance: if a builder were employed to do repairs on the roof of a house, I think that it would be for him to decide how he would carry out the work and to find out for himself whether a chimney stack or other portion of the building which he might wish to use as a support for himself or his staging were satisfactory and safe for that purpose. Where I differ from the trial judge is that I think that he has imposed on the defendant the same duty vis-a-vis an independent contractor as he would owe to one of his servants. To my mind the decision in Christmas v. General Cleaning Contractors Ld., is conclusive of this case, so far as this court is concerned, and I would allow the appeal."

Morris L.J. at p.237 said that Christmas v. General Cleaning Contractors Ld., supra, governed the case. Romer L.J. at p.240 took the same view and said:
"The accident was caused by the fact that what he believed, from previous experience, was a secure hand-hold, namely, the hole in the plywood, turned out on that occasion to be loose and insecure. I do not think that this danger was of a kind that should be more apparent to a window cleaner than to anybody else, for the possibility of its existence was merely a matter of general common sense. Accordingly, as I say, this case differs in that respect from the facts which were present in Christmas's case. Nevertheless, the following passage from the judgment of Denning L.J. in that case (which my Lord has already cited) seems to me to be destructive of Mr Bates' attempt to render Mr Parker liable for the accident which befell him. 'The householder,' said Denning L.J., 'employs the window cleaner as an independent contractor to clean his windows, and leaves it to him to decide how he shall do it and what safeguards he shall take, whether he shall use ladders or cradles or simply stand on the sill.'
The Lord Justice was indicating in those observations that an employer is entitled so to act and, applying what he said to the case which is before us, it was for the plaintiff to decide upon the manner in which he should clean the defendant's window and, in particular, whether he should (as he very well could) run the ladder up at each side of the window in turn. Had he adopted that course he would not have had to resort to the plywood at all and the accident would not have happened. It appears to me that the position would have been different if it had been established at the trial that the defendant knew that it was the plaintiff's practice to use the hole in the plywood as a means of steadying himself."

This case was cited by Herron C.J. in the Court of Appeal of New South Wales in Archer v. Hall (1967) 1 N.S.W.R. 107, a case which involved a claim by a welder working as an independent contractor. The Court of Appeal upheld an appeal and set aside a verdict for the plaintiff. Herron C.J. at p.112 said in relation to Indermaur v. Dames, supra, and Christmas v. General Cleaning Contractors Ld., supra:
"These two authorities must be applied generally and are not confined to window cleaners but extend to all cases in which independent contractors are employed upon premises where the method of performing the work is left to them."

It was also cited in a joint judgment of the Full Court of Victoria in Walter H. Wright Pty. Ltd. v. Commonwealth of Australia (1958) V.R. 318 at pp.323-324.

A passage in the judgment of Denning L.J. in Christmas v. General Cleaning Contractors Ld., supra, at p.148, which was not set out in Bates v. Parker, supra, sets out the position very clearly. In that case the plaintiff was an employee of an independent contractor employed to clean the invitor's windows. It reads:
"The householder employs the window cleaner as an independent contractor to clean his windows, and leaves it to him to decide how he shall do it and what safeguards he shall take, whether he shall use ladders or cradles or simply stand on the sill. The householder does not know what strains or stresses the window cleaner is going to put on the window. If the window cleaner chooses to rely on the window for his safety, then it is for him to take steps to see that it is safe for his special purposes, and not for the householder to do so."

The learned trial Judge referred also to the judgment of Hogarth J. in Pinborough v. Minister of Agriculture (1974) 7 S.A.S.R. 493. This case, involving an independent contractor, turned upon the question of whether an unusual danger existed on a part of the premises where the independent contractor was not necessarily required to go to perform his tasks.

The learned trial Judge took the view that:
"There is no evidence which justifies me in finding that Northern had or should have had any special understanding of Telecom's procedures. Nor in my view can I hold that the danger of a linesman mounting pole 3 on a ladder, unaware of the insertion of a length of flex, was reasonably foreseeable to Northern."

I am prepared to accept that the replacement of the Telecom wire with flex constituted a danger but in my opinion, when Telecom was requested to repair the telephone, the invitor was asking for that work to be done by a skilled person who must be deemed to have been properly instructed in relation to deciding whether or not a pole was safe to climb. The position is the same as if an electrician is called to repair an electrical switch and suffers injury as a result of a dangerous condition of the switch. In my opinion that case, like the one before us, would be governed by Bates v. Parker, supra. The position would of course be different if the electrician was injured as a result of some unusual danger due to the condition of some part of the premises which he had to traverse in order to reach the switch.

I consider no breach of duty by Northern has been shown and that the appeal in relation to Northern should be dismissed with costs. I would also dismiss the appeal in relation to Telecom with costs.

JUDGE2

Nomikos Papantonakis ("the appellant"), a grade 1 linesman employed by the first respondent ("Telecom"), was injured in an accident whilst performing that work for Telecom at the premises occupied by the second respondent ("Northern"). The appellant sued Telecom for damages for negligence, alleging the failure by Telecom to provide a safe system of work, and Northern also, for negligence and for breach of Northern's duties, as invitor, towards the appellant, as an invitee to those premises.

Broadly speaking, the appellant accepts the bulk of the findings of fact made by the learned trial judge, but attacks some of the conclusions reached by his Honour from those facts, conclusions which resulted in judgment for the defendants on all counts.

The facts found by his Honour were as follows:-

In 1976, Telecom, at the invitation of Northern, installed an additional telephone line to Northern's premises between two buildings, commencing in the building in which Northern's switchboard was located and running to a separate building used as a store. In that installation, standard telephone cable was used. That consisted of two copper conductor wires together with a high tensile bearer wire designed to take the strain of the weight of the copper wire which was of low tensile strength. The bearer wire also, and very significantly for the purposes of this case, added to the stability of the poles to which it was attached, being described as "very strong". The bearer wire was attached directly to the poles, whereas the copper cable was simply looped around the pole and not attached to it. On the 20th January, 1977, in response to a request from Northern, Telecom instructed the appellant and another linesman named Follett, to attend the premises and to repair a defect in this additional line, which could entail replacing the line. Between the time of the original installation and the appellant's visit, Northern had replaced the line by changing its direction, extending its length and supporting it by two poles of their own construction and erection, with the result that, instead of being a direct line between the switchboard building and the store, it followed a right-angular course supported by two poles which were designated, in the evidence, as poles numbers 2 and 3, but, between pole number 3 and the store room, where the right-angle in its course was formed, the high tensile bearer wire was supplemented by some ordinary household flex of low tensile strength, and the bearer wire did not cover the whole distance between the pole and the store. There was no evidence that Telecom knew of this alteration before instructing the appellant to attend Northern's premises.

The appellant was an experienced linesman and, although his English language expression and understanding was defective, he was not disadvantaged by this, and his instruction in the safety procedures to be followed before mounting a ladder against a telephone pole was adequate. His Honour found that he did not accept the appellant's contention that he thought the pole he mounted by means of the ladder was a Telecom pole. The relevance of this finding is that there was evidence that his Honour accepted that there were clear and distinct instructions to linesmen not to mount ladders against poles which were not poles of Telecom origin. The poles in question were crude in appearance and consisted of a one and a half inch or two inch pipe reaching a height of fifteen to sixteen feet above ground level, set in a base consisting of five inch diameter pipes, apparentely used previously as gate posts.

After arriving at Northern's premises, the appellant decided that, in order to cure the fault in the line, it was necessary to replace the telephone cables, and commenced that task by first mounting the ladder against pole number 2. Prior thereto, there was some discussion between the appellant and Follett as to the stability of the pole, but there was a negative result to a "push test" designed to test the stability of the pole. This pole was mounted and the work done to replace the line. The appellant noted that the line he replaced on this pole contained a high tensile bearer wire attached to the poles as previously described.

The appellant then proceeded to pole number 3, which because of recent rain had puddles around its base, and again, there was some discussion between the appellant and Follett and this conversation was reproduced in the learned trial judge's judgment. After describing a "push test" to this pole, Follett continued as follows:-
"Then perhaps, you could just describe what happened after you had put the ladder up against the pole? What did Nick do?--- After I put the ladder against the pole I thought it wasn't - it didn't look, you know, right, but I mentioned to him that I didn't think it was real good, and he said, 'It's okay', you know. I think my own view was that the first pole was okay so, you know, the second pole was of similar structure, so there was no hassles, you know.

Was it your view then that pole number 3 was about the same as pole number 2?--- Yes.

He had already been up pole number 2, and there had not been any problems, is that right?---Yes, that's right.

HIS HONOUR: You just told me that it did not look right. Tell me what concerned you? Did it concern you at the time?--- As far as I can remember the bend of the pole didn't seem right, but it wasn't exactly the same as the first pole, but the way I'd put the ladder the wires should have taken that up, you know, because the wire's very strong.

You placed the ladder for that reason, did you?---Yes."

The ladder was placed in a position which, from a bird's eye view would dissect the right-angle formed by the cable and, had the bearer wire run the full course to the store, the stability of the pole would have been enhanced.

When the appellant reached the top of the ladder, and before he was able to attach his safety belt to the pole, the top of the pole moved sharply, dislodging the appellant from the ladder. The wire attached to the pole was described as "whipping back" and the flex used in substitution for the high tensile wire was seen to break at the same time. The appellant was dislodged from the top of the ladder and fell to the ground with consequent injuries. The ladder held by Follett at the base remained against the pole, the top section of which was later seen to be bent over from its original line.

On these facts, the learned trial judge found that there was no breach of the duty of care by Telecom towards the appellant and, in view of his finding that the appellant was adequately and sufficiently instructed not to mount poles which were not of Telecom origin, and his Honour's non-acceptance of the appellant's assertion that he thought it was a Telecom pole, I see no reason to disturb the finding that there was no negligence in Telecom. If the appellant had followed the safety procedures, he would not have mounted the ladder.

Proceeding now to the case against Northern, it is appropriate to set out certain findings and conclusions reached by the learned trial judge which are relevant to that issue. Firstly, it is clear that Northern interfered with the installation originally made by Telecom, and the appellant had no warning that the stability of the poles was reduced by the substitution of low tensile flex for the high tensile steel bearer wire. His Honour also found that, even if the appellant had traversed and examined from the ground the whole length of the line before mounting any of the poles, he would not have discovered the substitution of the flex for high tensile wire. In dealing with the appellant's case against Northern, his Honour made a finding that the appellant was negligent and, although this may have been a shorthand expression intended to cover the qualification expressed in the Willes, J's famous formulation of the duty in Indermaur v. Dames (1866) L.R. 1 C.P. 274, namely "using reasonable care on his part for his own safety", such a conclusion is not, in my view, justifiable on the facts found by the learned trial judge. The facts pertinent to the invitor's duty are that the poles and the altered wiring thereon were the work of Northern, that the appellant had no knowledge of the alteration and was entitled to and did assume that the bearer wire would perform its function of increasing the stability of the pole. He found such a wire in position on pole number 2 which showed no sign of instability when he performed the necessary work on that pole, although doubts had arisen and been discussed beforehand. He did not know of the substitution of flex for part of the bearer wire between pole number 3 and the store and, on his Honour's finding, could not have detected that substitution by inspection from ground level. The invitation was to enter for the purpose of remedying a fault in the line and implied in that invitation, must be an invitation to climb ladders against the poles. On the facts, as found, the proximate cause of the accident was the parting of the substituted flex, resulting in violent movement of the pole. The fact that the pole bent after the sudden breaking of the flex does not indicate that the pole itself, when properly supported by the bearer wire, would have done so. Follett, whose evidence was accepted, described that wire as very strong; see quotation above.

The learned trial judge relied upon principles adopted by Hogarth, J. in Pinborough v. Minister of Agriculture (1974) 7 S.A.S.R. 493, where that judge correctly, in my view, set out the criteria to be applied when the invitee was skilled in the work he was invited to perform. The relevant principle in Hogarth, J.'s judgment can be stated in one sentence: "The more skilled the invitee is in handling such a situation, the less an occupier need do in order to discharge his liability". Pinborough's case concerned the duty to a pest exterminator who fell through a ceiling, the fragility of which the learned trial judge found he should have been wary. There was no evidence that the occupier had in any way induced the invitee to not be on his guard. In the instant case, Northern interfered with the bearer wire making it ineffective between number 3 pole and the store, by the substitution of flex for part of its length. The appellant was entitled to assume that it performed its function of increasing stability in the pole and was found to make that assumption by the learned trial judge. Apparently, Northern failed to warn the appellant that unskilled labour had tampered with the original installation, making it an unusual danger of which Northern knew and the appellant had no warning of such danger.

In reaching his conclusion that the appellant was "negligent", the learned trial judge relied upon the evidence of one Pulleine, a storeman employed by Northern at the relevant time, who stated that it was "perfectly ridiculous to put a ladder up to a pole like that . . . . . it was a free standing piece of pipe that, you know, was just prone to accident". Pulleine was not an expert, he had no knowledge of the bearer wire, its strength or purpose and, in my view, for those reasons, his evidence should have been disregarded.

I have had the opportunity of reading the reasons for judgment of my brother Franki, J. in which he relies upon Bates v. Parker (1953) 2 Q.B. 231 and Christmas v. General Cleaning Contractors Ltd. (1952) 1. K.B. 141. In the latter case, Morris, L.J. added what I think is an important qualification to the principles applying to independent contractors when his Lordship said:-
"It appears to me that the position would have been different if it had been established at the trial that the defendant knew that it was the plaintiff's practice to use the hole in the plywood as a means of steadying himself."

Romer, L.J. at p. 240 expressed himself similarly.

In my view, in this appeal, the facts are consistent with the qualification to the principle, Northern must be taken to know of the danger it created in relation to the work the appellant had in hand. I therefore regret that I cannot reach the same conclusion as Franki, J.

I should add that I have some doubts as to whether the appellant was strictly in law an invitee. By Section 18 of the Telecommunications Act 1975 the Commission has power to enter premises to repair its installations. Whether a request converts an entrant upon land which he could have entered by statutory right into an invitee was not raised, nor argued. As no point was taken on this, and the case against Northern was fought on the basis of the invitee-invitor relationship, I therefore feel this aspect need not be pursued.

I am therefore of the opinion that the appeal against the judgment for Northern, on the invitee count, should be upheld and that the action thereon be remitted to the Supreme Court for assessment of damages. The appeal against the judgment for Telecom should be dismissed. The respondent, Northern, should pay the appellant's costs of the appeal and such of the costs of the action as are referable to the count against it. The appellant should pay Telecom's costs of the appeal, and such costs of the action as are referable to the count by the appellant against it. As there can be no question of contribution between the respondents, no order should be made in that regard.

JUDGE3

In this matter I have had the advantage of considering the reasons for judgment of Franki J. and St. John J. In my opinion the appeal should be dismissed and I adopt the reasons for dismissal of Franki J.

During the hearing I formed the opinion that the appeal against the decision of the trial judge in respect of the liability of Northern Research Pty. Limited should be allowed, along the lines of the reasons for judgment delivered by St. John J. However I am satisfied that the authorities replied upon by Franki J., commencing with Bates v Parker (1953) 2 Q.B. 231, which were not cited to us during the hearing of the appeal, should govern the matter. I therefore conclude that it is proper to dismiss the appeal against Northern Research Pty. Limited as well as the appeal against The Australian Telecommunications Commission. I agree with the orders proposed by Franki J.