Papatonakis v Australian Telecommunications Commission

HIGH COURT OF AUSTRALIA

Mason, Wilson, Brennan, Deane and Dawson JJ.

NOMIKOS PAPATONAKIS v. THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION &ANOTHER

(1985) 156 CLR 7

5 February 1985

Negligence—Master and Servant

Negligence—Dangerous premises—Injury to entrant—Liability of occupier—Duty of care—Invitee—Special duties owed by occupier to different classes of entrant—Whether general duty of care co-exists with special duty—Telephone linesman injured repairing faulty line—Whether general duty of care—Contributory negligence. Master and Servant—Safe system of work—Telephone linesman injured repairing faulty line—Climbing pole installed by occupier contrary to standing work instructions—Injury when line snaps.

Decisions

MASON J. This is an appeal from a decision of the Full Court of the Federal Court of Australia dismissing an appeal from a decision of Muirhead J. in the Supreme Court of the Northern Territory in which his Honour dismissed an action by the appellant against the respondents for damages for personal injuries sustained during the course of his employment by the first respondent, the Australian Telecommunications Commission ("Telecom"). The injuries were sustained on 20 January 1977 when the appellant fell from a ladder while performing work for Telecom at premises occupied by the second respondent, Northern Research Pty. Ltd. ("Northern"). The basis of the appellant's claim against Telecom was that it was negligent in failing to provide a safe system of work. The basis of his claim against Northern was that it erected and permitted the use of an unsafe pole and wire on its premises and failed to warn Telecom and the appellant of the condition of the pole in breach of its duty of care owed to the appellant as an invitee. Both Telecom and Northern pleaded contributory negligence.

It appears from the facts as stated by the primary judge that Northern had advised Telecom of a fault in a telephone service provided by Telecom and had requested that the fault be rectified. The appellant, who was classified as a grade 1 linesman and who was described by the primary judge as "competent and reasonably experienced", was sent with a more junior employee named Follett to Northern's premises to rectify the fault. Upon arriving at Northern's premises the appellant decided that it would be necessary to replace the telephone line in relation to which the fault had occurred. The line ran between two buildings on the premises; one of which was an office housing the switchboard and the other of which was used as a dry store.

It was found by the primary judge that the line had been installed by Telecom at the request of Northern in 1975 or 1976 but that at some time prior to the date of the appellant's injuries it was altered by Northern, probably using its own labour and probably because it was interfering with vehicular access to the premises. In the initial installation a standard telephone cable had been strung directly between the buildings with probably one pole for support. The cable consisted of two copper conductor wires together with a high tensile steel bearer wire designed to take the strain…