Puthur v ActewAGL Distribution P/L (Energy and Water)
[2013] ACAT 71
•21 October 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PUTHUR v ACTEWAGL DISTRIBUTION P/L (Energy and Water) [2013] ACAT 71
EW 13/96
Catchwords: ENERGY AND WATER– electricity failure – damage to property – defective part under seal in fuse box – ActewAGL’s duty to take reasonable care for the safety of others – whether ActewAGL has the duty to inform customers of risks in relation to links under their seal – whether consumer has responsibility in relation to component part in the consumer’s property where ActewAGL controls it and the consumer has no access; duty of care because of control – reasonable charge for repair of damaged item – quantum of loss
Cases:Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 146 CLR 313
Tribunal: Mr. A. Morris – Registrar
Date of Orders: 21 October 2013
Date of Reasons for Decision: 21 October 2013
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL EW 13/96
BETWEEN:
MURUGESAN PUTHUR
Applicant
AND:
ACTEWAGL DISTRIBUTION PTY. LIMITED
Respondent
TRIBUNAL:Mr A. Morris - Registrar
DATE:21 October 2013
ORDER
The Tribunal Orders that:
1. The Respondent is to pay to the Applicant the sum of $2,868.04.
………………………………..
Mr A. Morris
Registrar
REASONS FOR DECISION
History and Chronology
The substantive matter arose when on 3rd November 2012, for no obvious reason, electricity failed at the applicant’s home in the ACT. The failure of the electricity supply caused damage to a number of electrical items in the property, which ceased functioning.
The items that failed/ceased to operate were the garage door motor, the home phone, a VOIP phone, the intercom and a couple of different aspects of the ducted heating controllers.
The evidence suggests that the smoke alarms triggered and sparked, and there was a burning smell. Several power circuits were found to be inoperable, and on inspection, it was surmised by the electrician in attendance that a loose neutral wire in the ActewAGL box might have been the cause.
ActewAGL electricians were called in to open the seal on their box. The neutral link inside was found to be loose. This was tightened by the ActewAGL technician.
Both electricians then left.
Subsequently, another ActewAGL electrician arrived and checked the work of the first. He left, without resealing the work.
Later, the applicant’s electrician returned to explain to his customers what had happened. (It was at this point that the missing seal was discovered.)
The matter was placed in the hands of the applicant’s insurers, who ultimately declined to cover the damage.
Mr Puthur, the applicant, then asked the respondent (ActewAGL) to cover the damage, but they refused, asserting that the link was the customer’s property, and therefore the customer’s responsibility.
Arguments
The applicant asserts that as the defective part is under the seal of ActewAGL, even though the customer is the owner of it, the customer cannot “get at it” without ActewAGL’s assistance and supervision.
He further asserts that, as a matter of res ipsa loquitor (i.e. the concept that things speak for themselves), the fact that the failure of his neutral link wire, which was subject to the same temperature extremes as other wires that did not defect clearly indicates that the initial installation was defective.
He also asserts that nobody at ActewAGL informed him of the possibility that a neutral link might fail, and that it was something of which he should be aware. He submits that not being expert in the area of electricity distribution and connection, he could not reasonably be expected to otherwise know this.
He further submits that it is his view that ActewAGL has a duty of care to inform account holders of this possibility.
Mr Male, for the respondent, asserts that neutral links are the property of the customer, and are sealed to prevent both injury and abstraction of electricity. He also states that it is not necessary to get access to the link to test it, as it can be done by a loop test from within the premises.
He asserts that it is not ActewAGL’s responsibility to inform a customer about tests that may be performed on installations owned by the customer.
Law
Whilst both parties focussed on the question of who owned the links and whether there was a responsibility for their maintenance on the supplier even though they belonged to the customer, I think the real answer lies in a different place.
ActewAGL controls a component part of the applicant’s property that the applicant owns but cannot access. This implies that ActewAGL has some duty of care in respect of that component.
I note that clause 8 of ActewAGL’s Deemed Standard Connection Contract excludes that company’s liability for all loss or damage unless they have acted in bad faith or negligently. I do not hold that the company has acted in bad faith. But it is possible that the question of negligence arises.
ActewAGL has a general duty at law to ensure that the electricity supply to premises is not likely to harm the owner’s goods or person, irrespective of whether the harm happens at the pole or at the power point. From the power point, downstream, it is reasonable to suggest that the home owner is responsible for what he plugs in (absent evidence to the contrary). Until that point, I suggest that ActewAGL cannot rely on what appears to be a technicality to assert that because one part of the electrical supply chain is owned by the end user, it has no obligation to maintain it, or even warn the end user that he should do so.
I derive this position from the words of Gillard J of the Victorian Supreme Court, in the case of Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359, a case where Kambrook sold Hardchrome a deep fryer that turned out to be defective due to a failure by a third-party’s component, and caused a very expensive fire in Hardchrome’s premises.
In his analysis in that matter, Gillard J revisited the doctrine of Donoghue v Stevenson (1932) AC 562, and noted that it is well established law that
“a manufacturer of goods owes a duty of care to the ultimate consumer”.
Continuing an excursus into this area of law, and he extensively quoted the High Court case of Cook v Cook [1986] HCA 73; (1986) 162 CLR 376, where it was held that
.....It constitutes the general determinant of the categories of case in which the common law of negligence recognises the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury to another.
Relevantly to the present case, he stated, at [505], that
In determining the standard [of the duty of care], the state of knowledge of the supplier as to possible defects, whether he should have known of the defects, the responsibility for design and manufacture, the opportunity to inspect, the dangerous nature of the product and the reputation of the supplier or manufacturer are all relevant to the question whether the reasonable supplier has satisfied the standard of taking reasonable care in all the circumstances.”[words within square brackets added]
In the present case, it was stated by Mr Male, for ActewAGL, that such incidents as occurred to Mr Puthur had previously happened to the public at large, but that they were very rare – of the order of fewer than 100 per year out of the 220,000 houses connected to the grid. Granted, that is not very many. But it is enough to say that neither is the problem unheard of.
Mr Male stated that it was not his client’s position that it had any educative function or liability in respect of the links, as they were entirely the consumer’s responsibility. I reject this view. The links are sealed by ActewAGL, ostensibly for safety, but also to stop people stealing power from ActewAGL’s side of the meter. I suggest that it would not be inappropriate for ActewAGL to consider an educative program or even a sticker in the fuse box suggesting how a consumer might go about testing these links if the consumer had suspicions that there might be a problem with them.
There is a landmark High Court case in point here, that of Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 146 CLR 313. Whilst the principal aspect of that case referred to matters of liability between lessor and tenant, the causes of the dispute are relevant here. In that matter, a house had a defective neutral link, the result of a disconnected earth wire. It became disconnected because it was in a nest of tangled wires, the weight of which resulted in it being pulled from or working loose in its socket. It is not known when or by whom the work resulting in the tangle of wires was carried out. However, the trial judge found that, had there been a visual inspection of the switchbox before the respondent and her family entered into occupation, it was probable that the tangle or the defect, if that is what it then was, would have been seen and corrected.
In Northern Sandblasting Pty Ltd v Harris, it was accepted that a general duty was owed by the lessor to the plaintiff to take reasonable care to protect her from injury if the electrical repair work on the stove "was not done properly". But the lessor contended that, having employed a licensed electrical contractor, it had discharged the duty that it owed to the plaintiff and could not be made vicariously liable for the contractor's tort. The lessor pointed out that, by reason of s 322 of the Electricity Act 1976 (Qld), it could not itself carry out the repair work because a person who is not the holder of a certificate of competency or permit, such as itself, is prohibited from doing any electrical work. Thus, the question arises as to whether a person can discharge a duty to take reasonable care for the safety of another person in respect of an activity which the law allows only a licensed person to carry out.
Much of the case is about lessor/tenant relationship and the question of non-delegable duty of care. But one point relevant to this matter is made by
Toohey J.
He states:
“… the appellant undertook to have the stove repaired and engaged an electrician for that purpose. … Unless the repairs were carried out with reasonable care and skill, there was a risk of serious injury, even death, to the occupants of the premises. That risk was reasonably foreseeable. …
It is true that the appellant was forbidden by law to do any of the work itself, other than through a licensed electrician. But that is no answer to the respondent's claim if there was a personal duty of care on the appellant. The prohibition applied equally to the occupiers. In any event a statutory obligation to employ a licensed electrician to effect electrical work does not modify a personal duty of care, just as in the case of an employer's duty to provide safe premises and plant for employees.”
So it is in this case. It is clear that by law, Mr Puthur cannot get into his own neutral link. ActewAGL seals the link and nobody except that company or its approved delegates can legally get to it. A failure of that link can foreseeably lead to property damage or worse. ActewAGL has argued that the link is not a part of ActewAGL’s infrastructure. I accept that. But this does not remove a duty of care from the respondent to ensure that the system providing electricity to the applicant’s house is safe.
Quantum of loss
ActewAGL also submitted that it was not an insurer, and would not replace old with new. I accept that proposition. With this in mind, I looked at Mr Puthur’s claims, determined to see if I could find an instance where he had wantonly replaced an item with a new one, rather than repair the old one.
I was unable to find such an item. The damage claimed with one exception was all for the replacement of items that would not have been economical to repair, even if it were possible (they were the sort of things that would have had burned out motherboards in them). The one “big-ticket” item was the garage door motor ($1,105) which required a “motor and electronic parts”. I am satisfied that this is a reasonable charge for the repair of this damage. Or to put it another way, I am satisfied that the applicant would not have been able to find a cheaper way to have his garage door made functional again.
Order
I order payment of $2,868.04 to the applicant by the respondent.
………………………………..
Mr A. Morris
Registrar
PUBLICATION DETAILS
FILE NUMBER: | EW 13/96 |
PARTIES, APPLICANT: | Murugesan Puthur |
PARTIES, RESPONDENT: | ACTEWAGL Distribution Pty Limited |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | Ian Male – ActewAGL |
SOLICITORS FOR APPLICANT | Self Represented |
SOLICITORS FOR RESPONDENT | Christian Bustomante - ActewAGL |
TRIBUNAL MEMBERS: | Mr. A. Morris – Registrar |
DATES OF HEARING: | 3 April 2013 |
PLACE OF HEARING: | ACAT, Canberra |
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