Schwartz v Resi Corporation No. Scciv-00-1155

SCHWARTZ & ANOR v RESI CORPORATION
[2002] SASC 118
Full Court: Perry, Nyland and Bleby JJ

PERRY J: In my opinion, the appeal should be allowed on the basis of the orders proposed by Nyland J. I agree with her reasons.
NYLAND J: This is an appeal and cross-appeal from a judgment of a District Court judge dated 16 August 2002. The first appellant (the appellant) made a claim for damages against the respondent as a result of injuries he received in an accident which took place on 13 September 1996. The appellant’s wife is the second appellant. The learned District Court judge found that the respondent owed a duty of care to the appellant. He awarded damages against the respondent but reduced them by 20% to allow for the contributory negligence of the appellant.
The judge ordered that judgment be entered in favour of the appellant in the sum of $81,509.46 (80% of $101,886.83) and for his wife in the sum of $1,200 (80% of $1,500). Interest was fixed in the sum of $3,765 and an order was made that the respondent pay the appellants’ costs of action up to and including 8 February 2002 and that the appellants pay the respondent’s costs of action as from 23 February 2002.
The appellant has appealed against the award of damages on the basis that the awards made with respect to non-economic loss, future economic loss and loss of services were manifestly inadequate:
The respondent’s cross-appeal is against the judge’s finding that the accident resulted from a breach by the respondent of its duty of care to the first appellant and also the apportionment of liability between the parties with respect to contributory negligence.
Background
On 13 September 1996, the appellant was pruning a tree at the front of his house at Somerton Park. In his reasons the judge said the house faced west and was set back about nine metres from the street. A garage was attached to the southern side of the house. Electricity to the house was supplied by two active cables and a single neutral cable. The active cable was comprised of conductors inside coatings of black PVC insulation. The single cable was bare. The cables were strung from a service pole on the eastern footpath and insulated brackets attached to the eave of the house near the south-west corner. The judge further said that the clearance of the lines above the driveway to the garage was about three metres. The tree being pruned by the appellant was a mature melaleuca which was situated near the south-west corner of the house. The foliage was extensive and extended over the garage and above, across and through the electricity cables over a distance of two or so metres from the brackets.
On the day in question, the appellant decided to prune the tree to clear some space for cars to park underneath. He was standing on an aluminium step ladder which was closed and wedged against the tree. He had his back to the ladder and was facing in a northerly direction. He was using a bow saw to trim the branches. He was on about the second rung from the top of the ladder. He cut a branch which was growing over and in between the wires by holding it with his left hand and cutting with his right. The branch which had been partly severed sagged down and came to rest against two cables. It was very heavy and he had to trim a smaller branch attached to it. He then reached out and grabbed the branch to pull it towards him. All of a sudden there was a “pssst” followed by a flash so he let go of the branch. He did not know what that was but did not think that it was a problem. He came down a rung or two but remained on the ladder. The branch was still sitting across the two wires so he again ascended the ladder to get more leverage and grabbed the branch again. He lifted the branch up and rotated it and pulled it towards him. He pulled it with both hands in an attempt to remove it from the cables. He had almost succeeded when there was a big bang and a flash and he fell to the ground. It was common ground that the cable came apart at that time.
The appellant could not remember much until he was on the ground. An ambulance was called and he was taken to the Flinders Medical Centre.
Damages
At the date of trial the appellant was aged 43 years. He left school after Year 11 and thereafter worked in a variety of jobs including storeman, factory hand, electroplater, machine operator, forklift driver and factory hand. He was unemployed for about one year on one occasion and for about two or three years on another occasion. At the time of his fall he was employed as a second class machinist by D W Considine & Sons Pty Ltd a small engineering firm. Initially he worked there for about seven years. He then worked for another employer for about two years and then returned to D W Considine & Sons in September 1995.
Following his fall, the appellant was admitted to the Flinders Medical Centre where he remained for four days. He then convalesced at home for about four weeks. He returned to part-time employment on 14 November 1996 and full-time employment a day or so before the Christmas holidays. He thereafter continued working for D W Considine & Sons with occasional absences on sick leave until July 2001 when he was retrenched due to shortage of work. Apart from one month’s work experience as a storeman in March 2002 he has not succeeded in obtaining any other employment.
The appellant’s work at D W Considine & Sons involved the feeding and taking of material to and from automatic machines and in connection with the handling of that material, periodic bending, lifting, twisting and pushing. The judge found that in the four and a half years of his second period of employment the appellant received periodic chiropractic treatment, physiotherapy, hydrotherapy, massage and acupuncture but relief from his pain was only short term. He required assistance with the heavier tasks at work and experienced persistent aching in his lower back. The appellant’s employer gave evidence at the trial. He described him as a good worker before the fall but said that thereafter he had some problems with lifting and bending.
The appellant was referred to Dr Keith Le Page, a psychiatrist for assessment in May 2000. Dr Le Page diagnosed a chronic pain syndrome and prescribed anti-depressant medication.
The appellant was seen by Dr David Marshall, an orthopaedic surgeon in November 2000. In a report following an MRI scan in January 2001 Dr Marshall said that there was no residual evidence of any skeletal abnormality which would account for the appellant’s current pain severity. It appeared to him that the appellant was suffering from chronic depression and a chronic pain syndrome. He said that there was no treatment recommended from a musculoskeletal point of view.
The appellant was subsequently referred by his general practitioner to the pain clinic at the Flinders Medical Centre. At the date of trial he was undergoing a continuing course of hydrotherapy. The appellant was examined in January 2000 by Dr David Cullum, a registered specialist in occupational medicine. Dr Cullum noticed specific tenderness and a history of persistent pain suggesting a chronic discogenic injury and a possible facet strain at the L5/S1 level. He described the discogenic injury and the facet strain as a clinical diagnosis on the balance of probabilities. Dr Cullum said that the appellant’s condition was complicated by deconditioning or loss of muscle tone which affected endurance and decreases tolerance of pain. Dr Cullum disagreed with Dr Marshall’s opinion that no treatment for a musculoskeletal point of view was required.
The appellant was also examined for medico legal purposes by Dr Tony Davis, a psychiatrist on 26 April 2001. Dr Davis considered that the appellant’s condition had stabilised but that he required further management of his chronic pain syndrome. Dr Davis recommended referral to a pain clinic and suggested that the appellant needed to focus on a vigorous rehabilitation program to minimise any physical deconditioning and help deal with the psychological aspects of his pain.
The judge found that the appellant’s present problems lay in a deconditioning of muscles which required a further program of rehabilitation and a chronic pain syndrome which required the continuing attendance at the pain clinic at the Flinders Medical Centre. The judge was not satisfied that the appellant suffered from any other condition and said that Dr Cullum’s clinical diagnosis of chronic discogenic injury and facet strain was not established to the requisite degree of proof. The judge found that the appellant’s problems would eventually resolve but there remained a small chance that he would be left indefinitely with occasional pain. He then said:
“As I have said, a continuing disadvantage in the short and medium term will be the need for the appellant to disclose his condition to prospective employers. It is likely that, with appropriate treatment and a greater focus by him upon his residual strengths and capabilities, he will resume in the longer term a working capacity unaffected by any residual consequences of his fall. But there remains a small chance that he will continue to experience occasional incapacitating pain.”
The judge assessed damages for pain and suffering and for loss of amenities of life in the sum of $18,000 for past and $7,000 for the future.
The judge allowed the sum of $2,400 net loss of earnings for the three months immediately following the accident. He considered that the assessment of the appellant’s loss of earning capacity after July 2001 necessarily required a broad axe approach. Included in the contingencies to be taken into account were periods of unemployment due to the adverse state of the labour market for able bodied and disabled candidates alike, periods off work for sickness and periods off work for unrelated injury, including recurrences of neck pain and headaches.
For the period between July 2001 and the present the judge allowed the sum of $17,000 which represented the net earnings that the appellant was receiving at the time of his retrenchment, less approximately one-third for contingencies. As to future loss of earning capacity, the judge said:
“To reflect a progressive improvement in the [appellant’s] condition and prospects in each of the next four years, I will apply a reduction of an overall average of one half to an approximation of the present value of projected net earnings in that period, and to the resultant figure a further reduction of approximately one third for contingencies.”
The judge then allowed a sum of $34,000 for future loss of earning capacity. To that amount he added a further sum of $12,000 to reflect the chance that beyond the next four years the appellant would not regain his previous earning capacity in full. That resulted in an award of $19,400 for loss of earning capacity to date of trial and $46,000 for the future.
The principal argument on appeal related to the finding by the learned trial judge that the appellant’s condition would effectively resolve in the next four years. The appellant submitted that this finding was contrary to the medical evidence. The appellant argued that the evidence of Dr Cullum and Dr Sorby Adams established that the appellant had an ongoing permanent organic injury in the lower area of his lumbar spine and the judge had failed to explain why he had rejected that evidence in preference to that of Dr Marshall. In addition, the psychiatric evidence established that the appellant was suffering from a chronic pain syndrome which did not appear likely to resolve in the period allowed by the judge. The amount allowed by the judge for future loss of earning capacity was therefore manifestly inadequate.
Although the appellant was examined by a number of medical practitioners, Dr Cullum was the only one to give evidence at the trial. All the other medical evidence was contained in two bundles of medical reports which were admitted in evidence by consent (P10, P13). As most of the expert evidence is contained in written reports there are some practical difficulties in resolving any matters of conflict in those reports.
Nevertheless, despite rejecting the diagnosis of chronic discogenic injury, the judge accepted Dr Cullum’s opinion that the appellant suffered from a deconditioning of his muscles which required further treatment. Dr Cullum said, that this was not something that was likely to resolve quickly. He said:
“… He has had an injury for five or six years. He’s obviously got a permanent impairment … and the best that can be expected, if he had adequate comprehensive physical therapy – as, for example, I would expect of a person in the private system, or because of WorkCover assistance – he would make progress physically, and in pain management techniques in general. That’s a very fundamental part of my practice. Even then, he’s going to be left in a situation where, if he’s given an intensive task, he’s going to have a big … risk of injury, he’s not going to be as strong as he was before this event and, as a consequence, he has a permanent impairment.”
Dr Cullum considered that the appellant was permanently restricted to lighter work. Although Dr Marshall did not consider that any treatment was recommended from a musculoskeletal point of view he considered that the appellant was suffering from chronic depression and a chronic pain syndrome which required treatment. He did not express any opinion as to when the appellant’s problems were likely to resolve.
Of particular significance is the psychiatric evidence. In his report dated 9 June 2000, Dr Le Page referred to an interview with the appellant on 18 May 2000 and to the history taken at that time and said:
“I have also detailed the treatment he has received so far in the above information and as you will note he estimates that he has improved physically approximately forty (40) percent, but emotionally not at all.
The major psychiatric diagnosis is a Chronic Pain Syndrome which is based in his identified physical injuries in his lumbar spine, but from the outset this has had a significant psychiatric component of chronic irritability, subjective tension and frustration concerning the chronic pain and the physical restrictions.
The Chronic Pain Syndrome embraces both the physically based pain and the psychiatric components arising out of this injury.
I have detailed that there have been restrictions in relation to his work, personal and social life.
There is no evidence that this accident has aggravated any pre-existing condition.
I believe that he has some capacity for improvement psychiatrically and for this reason I have made further follow up appointments to help him modify stress and subjective pain and improve his outlook on life.”
On 26 March 2002, Dr Le Page provided a further report in which he referred to a number of further interviews with the appellant. He said that at the interview on 25 March 2002, the appellant informed him that he had lost his job on 24 July 2001 and had not worked since. Dr Le Page reported that:
“He said that his back pain had diminish by approximately fifty (50) per cent since he ceased work and that his emotional state had also improved approximately fifty (50) percent.”
Dr Le Page expressed the opinion that the appellant was “still suffering from a chronic pain syndrome” but said “this had improved a further 50% both physically and psychologically since my previous report in June 2000”. He went on to say “[H]is longer term prognosis is dependent on finding meaningful light work which does not aggravate his back and stress conditions”.
Dr Davis, provided a report dated 4 May 2001, following on an examination of the appellant on 26 April 2001. He expressed the opinion that the appellant’s “ongoing symptoms are indicative of a chronic … pain disorder which has physical and psychological determinants”. He said:
“I consider that his condition has stabilised. He requires further management of his chronic pain syndrome. … I would recommend that he seek referral to a Pain Clinic, to ensure that he has optimal management of his chronic pain syndrome. He needs to focus on a vigorous physical rehabilitation program, to minimise any physical deconditioning and to help deal with the psychological aspects of his pain. He is likely to experience chronic pain for the foreseeable future.” (emphasis added)
Dr Davis also mentioned in that report that the appellant had “described a degree of frustration with the medico legal process that may serve to perpetuate the symptoms and reinforce a focus on symptoms and disability, rather than focus on residual strengths and capacities”. The judge mentioned this when finding that the appellant would, in the longer term, resume working capacity unaffected by the residual consequences of his fall. The appellant argued, however, that this was no more than an aspect of a pain syndrome and as such it did not provide a rational basis for concluding, without any supporting evidence, that the appellant’s condition would resolve within a period of four years or at all.
As at the date of trial the appellant was 43 years old. His prior work history suggests that if he had not been injured he would have worked until about the age of 60, albeit with some periods of unemployment. He has, however, not worked since July 2001 apart from the month in March 2002. The improvement noted by Dr Le Page in his report of 24 July 2001 coincided with a period during which the appellant was not working. His long term prognosis is dependent upon the appellant finding light work that does not aggravate his back and stress conditions. Dr Cullum considered that the appellant was permanently restricted to light work. Dr Davis expected the chronic pain syndrome to continue for the foreseeable future. In my opinion, there was an insufficient basis in the medical evidence for the learned trial judge to conclude that the appellant’s problems would conclude within a period of four years. The probability is that the appellant will be indefinitely restricted in what he is able to do although with time there should be some improvement in his psychological problems. The appellant will suffer a continuing disadvantage when competing in the open labour market with other workers who are not so injured. For those reasons I consider that the damages assessed by the learned trial judge with respect to future non-economic loss and future loss of earning capacity are manifestly inadequate.
It is, however, unnecessary to review the amount awarded for past economic loss as there has not been any challenge made to that award. In any event, I consider that in some respects the amount allowed by the learned trial judge for past economic loss was somewhat generous as the appellant’s loss of employment was not due to his injury, but to a shortage of work.
In assessing the amount to be awarded by way of future loss of earning capacity, the judge approached the matter on the basis that in the short and medium term, the duties of a storeman were a more realistic measure of the level of the appellant’s employability and mentioned that the rate of pay of a storeman under the relevant award was $467.70 per week or $12.30 per hour.
The appellant’s net income from his employment as a second-class machinist in the year 2000-2001 was, however, $25,168.73 or $484 per week and, in my opinion, that is the appropriate figure to use to assess the appellant’s future loss.
As the appellant was 43 at the time of the trial, assuming retirement at the age of 60, he had a further 17 years of working life ahead of him. Using the 3% compound interest tables in Lunz Third Edition the value of $1 per week for a person aged 43 to age 60 or prior death is $668. If I were to round off the appellant’s net loss at $480 per week and use the multiplier of $668, the nett loss to the appellant would be $320,640. That is, however, only a starting point for the assessment of the appellant’s damages.

This amount would need to be discounted substantially. Allowance must be made for the fact that the appellant was retrenched from his employment for reasons unrelated to his accident injuries in July 2001, the possibility of an improvement in his health, periods of unemployment unrelated to injury and the fact that the appellant has retained a substantial residual earning capacity. Taking into account all contingencies, both adverse and favourable, I would allow the sum of $100,000 for future loss of earning capacity.
Applying the same process of reasoning, I would assess the appellant’s future non-economic loss in the sum of $15,000.
Loss of Services
The appellant’s wife gave evidence that the appellant was 95% bedridden in the first two weeks after his discharge from hospital but said that he gradually improved thereafter. During the period that the appellant was bedridden she was obliged to help him get out of bed, assist him to the shower and dress as well as prepare his meals. Since the fall the appellant had been unable to attend to household chores as he had in the past, this included gardening, painting and cleaning the gutters, the latter task now being performed by their sons. For the last couple of years a man had been employed to do lawn mowing and general gardening at a cost of about $180 per annum.
The judge said that the appellant was entitled to recover the value of voluntary services rendered to him by his wife based upon his need and the market cost of satisfying that need. He then referred to Van Gervan v Fenton (1992) 175 CLR 327 at 343 and 344 and said that most, if not all of what the appellant’s wife had done for him fell within the ordinary incidents of mutual give and take of the relationship. The judge considered that of more significance was the appellant’s entitlement to be compensated for his inability to mow the lawn and perform other household tasks, the replacement of which would involve him in expense. He then allowed the overall sum of $1,5000 under this head.
The passages cited by the learned trial judge from Van Gervan which refer to the “ordinary incidents of mutual give and take of the relationship” are, however, contained in the minority judgment. The appellant argued that the learned trial judge had thereby fallen into error as he had virtually disregarded those tasks carried out by the appellant’s wife and family and focused only on those matters which involved him in expense.
The correct approach to the assessment for damages with respect to care or services provided gratuitously to a person who has suffered personal injury is, however, the need of that person for those services. He/she does not have to show that the need is or maybe productive of financial loss. Accordingly, the damages are not to be determined by reference to the actual cost to the person for having the care or services provided or by reference to the income foregone by the provider of the services, but generally, by reference to the market cost of providing those services; Van Gervan at 333-334.
The circumstances of this case did not warrant anything more than a modest award for loss of services. The judge, in making his assessment, does, however, appear to have focused on the cost to the appellant of the lawn mowing and little else. More significantly, the award reflects the judge’s finding that the appellant’s problems would effectively resolve within four years. As I have earlier indicated that this is not consistent with the medical evidence I consider that this award should be increased to the sum of $3,000.
Future Medical expenses
The judge allowed the sum of $5,200 which included $4,900 for the cost of the pain education and rehabilitation program run by the Pain Management Rehabilitation at Flinders Medical Centre. This was an intensive course conducted over a period of three weeks and involved an educational and physical conditioning program but there was no evidence to indicate that it was likely to be repeated. The medical evidence suggests that in the future the appellant may need some intermittent physiotherapy or chiropractic treatment and the provision of an analgesic and possibly tricyclic medication. No precise information was given as to those matters other than the appellant at the date of trial was expending about $9 per month but sometimes $18 on analgesia and paying $2.20 for a half hour hydrotherapy session per week. On the hearing of the appeal, counsel for the appellant invited us to increase this award. As I consider that the learned trial judge underestimated the length of time with respect to the appellant’s ongoing incapacity, this amount could probably be higher. There was, however, no complaint as to this aspect of the award in the notice of the appeal and in any event, the evidence as to the cost of future medical expenses is helpful in calculating an appropriate adjustment. I would not, therefore, interfere with this aspect of the award.
Summary
The summary of the damages of the appellant should therefore be assessed as follows:
Non-economic loss:
Past   $18,000
Future   $15,000
Loss of earning capacity:
Past   $19,400
Future   $100,000
Loss of services  $3,000
Future medical expenses                   $5,200
Special damages  $4,786.83
Total:   $165,386.83
This figure is, however, subject to a reduction with respect to contributory negligence.
Liability
I now turn to the cross-appeal and the question of liability.
In addition to the appellant, his wife gave evidence at the trial. She said she was watching as the appellant tried to lift the branch off the wires. She said she heard “a real loud bang, like a penny farthing, like a cracker noise that went ‘bang’”, and then she saw a “big flash of light” and she saw her husband fall to the ground.
She said that between the loud bang and the flash there were only seconds before the appellant fell to the ground. She referred to the wires arcing and described a real bright flash in the form of a complete circle. She did not hear or see the first episode. After returning from the Flinders Medical Centre she saw that the wires had been clamped together. In January 1997 she took a number of photographs of the wires and noticed that the insulation on the active cables from the service pole to the house were broken.
Mr David Crookes, an electrical engineer, visited the house and inspected the cable on 25 March 1997. He described the condition of the cables and noted that the insulation of both active cables was in an advanced state of decay due to exposure to sunlight and weather and abrasion by the overhanging tree branches. He said the condition of the cables would have been clearly visible from the front of the property.
His opinion was that the noise and flash in the first episode were caused by the branch making contacting with an exposed active cable and completing a circuit between that cable and the neutral cable. With respect to the second episode, Mr Crookes opinion was that there had been contact between the exposed active cable and the neutral cable causing the flash and the noise and an instantaneous melting and separation of the cables at the point.
The judge found that the appellant had reacted involuntarily to the bang and flash in the second episode and that his fall was a direct and immediate consequence of that reaction. The judge examined the legislation which related to the distribution of electricity to households and the provisions which regulated the clearance of vegetation from public and private supply lines. He found that the respondent, as owner and controller of the system of distribution of electricity to households owed to consumers, including the appellant, a duty of care. He considered that the duty was imposed by the common law if not implied by the legislation. The judge found that the respondent was in breach of its duty of care to the appellant in the following respects:
1.It failed to bring to the appellant’s notice warnings of the kind contained on the inside cover of a booklet entitled Trees, Powerlines and People and subtitled A guide to legislation on vegetation near power lines. Which was published by the Electricity Trust of South Australia in 1989.
This booklet contained the following warnings under the heading Safety when working near power lines:
“Electricity can be dangerous!
If you undertake to trim or remove trees near powerlines you must take adequate safety precautions. In particular, distances between the powerlines and the trees, should only be estimated by eye.
Under no circumstances should you bring anything that can conduct electricity within one metre of ETSA wires which are not fully insulated.
Therefore, if you need to trim within one metre of any line you should contact your nearest ETSA office for advice.
Branches can conduct electricity!
A branch or tree in contact with high voltage lines can provide enough of an electric shock to kill people or animals.
When in doubt call ETSA!
Your nearest ETSA depot (See Section 9, Page 23) will be happy to assist you during normal working hours. They may, free of charge, deaden the line and even lower it while you do your trimming or have it done.
You may request ETSA to do the tree cutting for you but there will be a charge for this.
If you wish to protect your trees and yourself seek expert advice.
If you damage the powerlines ETSA may bill you for the cost of repair.”
2.It failed to conduct periodic inspections of the cables to the appellant’s house and to take appropriate remedial action.
3.It failed during routine or other visits to the appellant’s street and house to observe the deterioration in the cables and take appropriate remedial action.
4.If it did observe the deterioration in the cables on any occasion prior the appellant’s fall, it failed to take appropriate remedial action.
The judge said that by appropriate remedial action he meant the substitution of a neutral screen cable.
The judge found, however, that the appellant had failed to take reasonable care for his safety and that his failure contributed to his injuries.
The judge considered that the noise and flash at the first episode conveyed or should have conveyed to the appellant a clear warning of impending danger. The appellant should have descended the ladder and sought expert advice and/or assistance. At the very least he should have discontinued his attempt to remove the branch from the wires. As a result of those matters, the judge reduced the appellant’s damages by 20%.
On appeal, the respondent accepted that it owed a duty of care to the appellant in relation to the condition of the electricity line supplying power to his house but complained of the finding by the judge that the respondent was in breach of that duty of care, that the conduct or omission of the respondent was causative of the damages sustained by the appellant, and the finding that the appellant’s damages be reduced by only 20% in consequence of the appellant’s contributory negligence.
The respondent referred to the finding by the learned trial judge that the cables in question were a private supply line, approximately three metres above the ground and that they constitute three cables with two live and one neutral. The judge had also found that the appellant as occupier knew before his fall that he was obliged to keep the vegetation clear from such a line. The respondent argued that in balancing the magnitude of the risk, given the possibility of it occurring with 40% of 700,000 private supply lines in South Australia being of a similar type, together with the expense of substituting neutral screen cable to all such supply lines, the learned trial judge ought to have found that the respondent was not in breach of its duty of care in failing to repair the open wires at the appellant’s house.
The respondent further argued that the respondent was entitled to assume that occupiers in the position of the appellant would take reasonable care for their own safety which involved keeping vegetation away from supply lines and not attempting to remove branches after becoming aware of the presence of electricity.
Since 1988, the regulations made under the Electricity Trust Act 1946 have imposed upon occupiers an obligation to keep private supply lines free of vegetation. The appellant therefore had a statutory responsibility to keep this particular line free of vegetation. The appellant was unaware of his statutory responsibility but nevertheless thought that he was obliged to trim the tree clear of the cables as the tree was on his property. The transcript reads:
“Q.… Prior to this day you fell from the ladder, did you think that somebody had the responsibility or the task to remove branches away from electric wires.
A.Because the tree was on my property and it was growing through and on top of the wires, I naturally assumed it was my responsibility because I thought they were probably my wires as well, I didn’t know they belonged to ETSA. I didn’t know at all.
Q.That is something, I know it’s very difficult to answer this, but help us if you can do. That was your understanding as it were, of – I use the words your responsibility or your obligation to do that, that’s something you thought about prior to your fall off the ladder in 1996.
A.I didn’t think about it, you know, I mean, the tree’s on my property, it belongs to me.”
He was unaware of the information booklet and had not received warnings from any other source.
In my opinion, the learned trial judge correctly found that the respondent was guilty of negligence.
As a supplier of electricity for domestic use, it was responsible for bringing onto house properties a highly dangerous commodity which could easily cause injury or death if there was a failure to take adequate safety precautions. The respondent owed a duty of care to householders to take reasonable precautions to ensure that they were not exposed to unnecessary risks in using the electricity supply, or more particularly for the purposes of this case, to minimise the risk of harm which might eventuate through accidental contact with the cables through which the supply was maintained.
The respondent’s awareness of that risk is manifest in the booklet Trees, Powerlines and People. While in one sense the advice given in the booklet amounts to little more than common sense observations, the book emphasised the risks involved in accidental contact with the powerlines, and importantly, drew attention to the service provided by ETSA, as the respondent was then called, to assist in clearing vegetation near powerlines.
To allow the insulation over the powerlines to perish to the extent that bare wires were exposed, clearly increased the risk of injury from accidental contact with them.
It is true that there was at the relevant time a relatively large number of private supply line installations in South Australia, many of which were open wire installations of the kind in question. The replacement of such installations by the more modern and safe neutral screen cable could only be effected progressively over a period of time.
But apart from any more specific maintenance inspection, domestic installations were regularly visited by meter readers. Mr Crookes said that the condition of the cables were clearly visible from the front of the property, but even if a meter reader might not necessarily be expected to detect the deterioration in the insulation over the supply line, the heavily overgrown vegetation surrounding the powerlines in question was readily visible. It is not unreasonable to expect that it should have prompted some attention by the respondent, which was entitled to remove the offending vegetation if the appellant had failed to do so.
The focus of the findings made by the learned trial judge was on the condition of the cable, but as I have said, I think that the respondent ought to have become aware of the fact that the tree in question had created a dense, bushy cover of foliage through and around the powerlines, and should have taken some steps to remove the hazard which this caused.
Bearing those considerations in mind, I would not disturb the finding of negligence against the respondent.
There remains the question of contributory negligence. The respondent argued that even if a warning brochure had been sent to the appellant warning him of safety precautions, it could not be said on the balance of probabilities that the appellant would not have been injured in any event as the appellant had not been safety conscious. A second or two before the second episode he had received the best warning possible, that is the flash in the first episode but, notwithstanding that warning, he had climbed back to the top of the ladder and tried to pull the branch back across the wire.
There can be no doubt that the appellant was guilty of contributory negligence. In my opinion, the learned trial judge correctly found that the noise and flash of the first episode conveyed or should have conveyed a clear warning of impending danger. Having had that warning, as a matter of commonsense, the appellant should have immediately desisted from his attempt to clear the branch from the power lines. He was extraordinarily foolhardy in persisting with his endeavours after he had experienced the noise and flash which followed from what must have been the first contact between the branch and an exposed active cable.
This was not a situation in which the appellant was working under any obvious pressure and he had every opportunity when the first incident occurred to break off the exercise until he had obtained some more expert help. Furthermore, he was also standing backwards, high up on the ladder. To undertake this work in such a precarious fashion meant that there was an increase in the risk of him losing his balance as the result of an untoward incident than if he had been standing on the ladder facing it.
I also consider that the appellant was negligent in his failure to trim the trees prior to this incident having occurred. Although he was unaware of his statutory responsibility to do so he acknowledged that he was aware of the need to keep them trimmed. He had, however, allowed them to get into an unmanageable state. Mr Crookes referred to abrasion from overhanging tree branches as one of the factors contributing to the state of decay of the cables in question. Neither this aspect of the matter or his position on the ladder appeared to have been taken into account by the learned trial judge when assessing the degree of contribution by the appellant. In my opinion, the degree of negligence of the appellant was substantially greater than as assessed by the learned trial judge. I would reduce the appellant’s damages by 60% to allow for contributory negligence.
In summary, I would allow the appeal and assess the damages of the appellant prior to the reduction for contributory negligence in the sum of $165,386.83. The cross appeal should also be allowed and damages so assessed reduced by 60%. Judgment should therefore be entered for the appellant in the sum of $66,154.73.
The award to the second appellant for loss of consortium of $1,500 should also be reduced by 60% to the sum of $600.
It will be necessary to hear counsel as to interest and costs.
BLEBY J: I agree with the orders proposed by Nyland J and with her reasons. I have nothing to add to those reasons.

[2003] SASC 118

30 April 2003