Smith v High Energy Service Pty Ltd
[2021] WADC 101
•29 OCTOBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SMITH -v- HIGH ENERGY SERVICE PTY LTD [2021] WADC 101
CORAM: VERNON DCJ
HEARD: 12-16, 19-23, 26-30 OCTOBER, 2 & 5-6 NOVEMBER 2020
DELIVERED : 29 OCTOBER 2021
FILE NO/S: CIV 497 of 2017
CIV 343 of 2018
(Consolidated by orders dated 15 August 2018)
BETWEEN: GLENN ANTHONY CHARLES SMITH
Plaintiff
AND
HIGH ENERGY SERVICE PTY LTD
First Defendant
DAVID ALUN RICHARDS & JANET ELIZABETH RICHARDS t/as RICHARDS ENERGY SERVICES
Second Defendant/First Third Party
VICINITY MANAGER PTY LTD
Third Defendant/Second Third Party
PERRON INVESTMENTS PTY LTD
Fourth Defendant/Third Third Party
VICINITY CUSTODIAN PTY LTD
Fifth Defendant/Fourth Third Party
Catchwords:
Personal injury - Electrical explosion - Employer's liability - Causation - Contributory negligence
Legislation:
Civil Liability Act 2002 (WA)
Occupational Safety and Health Act 1984 (WA)
Occupational Safety and Health Regulations 1996 (WA)
Occupier's Liability Act 1985 (WA)
Result:
Judgment for the plaintiff against the first defendant
Assessment of reduction of damages for contributory negligence by the plaintiff at 10%
Plaintiff's claims against the second, third, fourth and fifth defendants dismissed
First defendant's third party claims against the second defendant (first third party), the third defendant (second third party), the fourth defendant (third third party) and the fifth defendant (fourth third party) dismissed
Representation:
Counsel:
| Plaintiff | : | Ms R Cosentino & Mr A J Stewart |
| First Defendant | : | Mr T Lampropoulos SC |
| Second Defendant/First Third Party | : | Mr G R Hancy |
| Third Defendant/Second Third Party | : | Ms B A Mangan |
| Fourth Defendant/Third Third Party | : | Ms B A Mangan |
| Fifth Defendant/Fourth Third Party | : | Ms B A Mangan |
Solicitors:
| Plaintiff | : | Chapmans Barristers & Solicitors |
| First Defendant | : | Kott Gunning |
| Second Defendant/First Third Party | : | Hall & Wilcox (Perth) |
| Third Defendant/Second Third Party | : | Herbert Smith Freehills |
| Fourth Defendant/Third Third Party | : | Herbert Smith Freehills |
| Fifth Defendant/Fourth Third Party | : | Herbert Smith Freehills |
Case(s) referred to in decision(s):
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Czatyrko v Edith Cowan University [2005] HCA 14, (2005) 79 ALJR 839
Geroheev Pty Ltd v Wheare [2004] WASCA 206
Jones v Dunkel (1959) 101 CLR 298
Kondis v State Transport Authority [1984] HCA 61, (1984) 154 CLR 672
McLean v Tedman (1984) 155 CLR 306
McLean v Tedman [1984] HCA 60, (1985) 155 CLR 306
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Town of Port Hedland v Hodder (No 2) [2012] WASCA 212, (2012) 43 WAR 383
Wyong Shire Council v Shirt (1980) 146 CLR 40
Table of Contents
Introduction
Mr Smith and Mr Richards
Uncontentious factual findings
Parties and other personnel
The Galleria's Electrical System
Relationship between HES and the Manager
Events of 2 February 2015
Events of 3 February 2015
After the explosion
The mechanism of the explosion
Summary of the claims
Mr Smith's claim against HES
HES' defence
Mr Smith's claims against RES
The battery claim
The battery claim against HES
Battery claim against the Owners and the Manager
Summary of the issues to be determined
Summary of legal principles
Generally
Claim against HES
Claim against the Owners and the Manager
Contribution claims and contributory negligence
What was said when Mr Smith called Mr Richards on 2 February?
Evidence
Mr Smith
Mr Richards
Stephan Lauk
Findings
What was said when Mr Smith called AB on 2 February 2015?
What was said and done on 3 February 2015?
Evidence
Mr Smith
Mr Richards
Other evidence
Findings
What, if anything, did Mr Smith do with the GF3's fuses and end-caps?
Evidence
Mr Smith
Mr Richards
Mr Rowe
Mr Peacock
Findings
The experience of RES, Mr Smith and HES in L & C switches
Evidence
Mr Smith
AB
Mr Brown
Mr Richards
Other evidence
Findings
Mr Smith's employment with HES
Findings
Did HES breach its duty of care to Mr Smith?
Was HES' negligence causative of Mr Smith's injury?
Did RES owe Mr Smith a duty of care?
The Battery issue
The relevance of the batteries to the operation of the Merlin Gerin
The relative operation of the Sepam relay and the GF3 fuses
Was the fault in Transformer 1 an earth fault?
Paul Egan
Allan David
Professor Trevor Blackburn
Findings in relation to the presence of an earth fault
Evidence of a low amperage fault current causing the fuse to shatter
Were the dead batteries causative of the injury to Mr Smith?
Liability for the failure to replace the batteries and Limitation Act issues
Contributory negligence and relative contributions
Conclusion
VERNON DCJ:
Introduction
On 3 February 2015 an explosion occurred in an electrical substation at the Morley Galleria Shopping Centre. The plaintiff, Glenn Smith, was one of four men in the substation at the time of the explosion. The consequences of the explosion were catastrophic and two men died. It is not in dispute that Mr Smith was very badly injured, as was the fourth man, David Richards. The parties have agreed the issue of the quantum of Mr Smith's loss and damage suffered by reason of his injuries. The issues for determination are the liability, if any, of each of the defendants and the relative contributions of any defendant found liable, to Mr Smith's loss, and whether Mr Smith negligently contributed to his own loss and the extent of that contribution, if any.
Mr Smith and Mr Richards
A number of the principal factual disputes in this case concern what was said during two telephone conversations between Mr Smith and Mr Richards on 2 February 2015, and what was said and what happened when they met on 3 February 2015, just before the explosion.
My impression of both Mr Smith and Mr Richards was that they were each honest in their evidence. Although both were defensive at times under cross‑examination, that was understandable given the consequences of the explosion. It did not undermine my impression of each of them as honest witnesses.
However, for reasons that I will give, I have found that parts of the evidence of each of Mr Smith and Mr Richards is not reliable or accurate in some respects. In my view that was to be expected, given the brief period over which the events occurred, the trauma of the event itself, and the very serious burns that they each suffered in the explosion, which required both of them to spend a long time in hospital.
There is other, objective, evidence and the recollections of the other witnesses which assists in determining, on the balance of probabilities, what was said and done on those occasions, which I will refer to in due course.
Uncontentious factual findings
Many of the facts were not, ultimately, in issue. The facts set out in [7] ‑ [70] below are largely uncontroversial and, except where I specifically refer to a factual dispute, I make findings accordingly. It is convenient to address these facts before turning to the issues between the parties.
Parties and other personnel
Mr Smith was a high voltage electrical technician and, as at 2 February 2015, was employed in that capacity by the first defendant, High Energy Service Pty Ltd (HES). Mr Smith commenced work for HES in 2012, and worked in a division known at the 'Town Group'.
The HES business was started by its director, Paul Brown, in 2007. At the beginning of 2015, HES had about 35 to 40 employees, with 4 or 5 apprentices, 25 field technicians and 6 or 8 office staff. In February 2015, HES was providing clients with high voltage electrical maintenance, and testing and commissioning, and responding to fault call outs.
The second defendant, and first third party, is a partnership between David Richards and his wife, Janet Richards, trading as Richards Energy Services (RES). As at 2 February 2015, Mr Richards worked as a high voltage electrical technician for RES.
The third defendant and second third party, Vicinity Manager Pty Ltd, and the fourth defendant and third third party, Perron Investments Pty Ltd, (collectively 'the Owners'), jointly owned the Morley Galleria Shopping Centre (the Galleria). In February 2015, Vicinity Manager Pty Ltd was known as Federation Manager Pty Ltd, and was part of Australia's largest retail property groups. Perron Investments was in the business of investing in commercial property, including retail shopping centres.
The fifth defendant and fourth third party, Vicinity Custodian Pty Ltd, (the Manager) managed the Galleria pursuant to a property management agreement dated 27 June 2012 with the Owners. In February 2015, Vicinity Custodian Pty Ltd was known as Federation Custodian Pty Ltd. The Manager was one of Australia's largest retail property groups and started managing shopping centres for Vicinity Manager in about October 2007.
The Galleria's Electrical System
The Galleria's electrical system comprised of a main intake substation (Main Substation) and four other substations, including Substation 4.
Western Power supplied 11kV three phase alternating electrical power (high voltage, or HV) to the Galleria at the Main Substation. The Main Substation had two rooms, one housing Western Power's equipment and the other housing the Galleria's equipment. HV was then supplied via the Galleria's equipment to the four substations, in a ring formation, with Substation 4 being directly connected to the Main Substation.
The Galleria's equipment in the Main Substation included a protection system comprising a Sepam 1000 relay (Sepam relay) and a Merlin Gerin YFS6 circuit breaker (Merlin Gerin). The protection system operated, relevantly, by the Sepam relay measuring current in the circuit. If the Sepam relay detected a fault in Substation 4, it would send a signal to the Merlin Gerin to operate or 'trip'. The Merlin Gerin trip coil mechanism would then operate to disconnect Substation 4.
For some considerable time before 2 February 2015, the batteries in the battery charger connected to the trip coil mechanism in the Merlin Gerin, were effectively dead, that is with limited, or no, electrical charge.
Adjacent to Substation 4, in an outdoor enclosure, were two transformers, called Transformer 1 and Transformer 2, which converted the incoming HV power to 415v three phase alternating electrical power (low voltage or LV) for use within the Galleria.
Substation 4 comprised two rooms, the LV room and the Switch room.
The LV room contained the LV distribution switchboard. The Switch room contained, amongst other things, a single HV ring main unit comprising two Long and Crawford HV oil insulated switches (L & C switches), one being a 'GF3' and one being a 'T4 GF3', which were the primary protection for the two transformers. During the trial these were variously called oil filled switches, oil filled switch gear, switches or switch gear. In these reasons I will refer to each by the name allocated to them, that is the GF3 or the T4 GF3, or collectively as 'the switches'.
In normal operation, HV was supplied to each of the two transformers from the Main Substation via a ring main unit. Transformer 1 received HV via the GF3. Transformer 2 received HV via the T4 GF3. The busbars supplying the HV ran through a band joint connecting the GF3 and the T4 GF3.
Each of the switches comprised of a tank filled with oil and covered with a lid secured by bolts when closed. The T4 GF3 had a second, smaller tank, also with a lid. Connecting the GF3 and the T4 GF3, through the band joint and running through the bottom of each, were three busbars, one for each phase of current. The busbars were in a staggered position, with the incoming supply from the left. The busbars were always completely submerged in the oil in the tank.
In normal operation there are three fuses at the top of each of these tanks, one for each phase of current identified as the 'red' phase, the 'white' phase and the 'blue' phase. When facing each tank, the 'red' phase fuse is on the left-hand side, the 'white' phase fuse is in the middle and the 'blue' phase fuse is on the right‑hand side. Within each transformer the three phases are labelled 'A', 'B' and 'C', corresponding to 'red', 'white' and 'blue', respectively. In these reasons I will identify the three fuses in the GF3 as the 'red' fuse, the 'white' fuse and the 'blue' fuse.
Fuses used in these type of switches are not always all of the same type and are not necessarily produced by Long and Crawford. However the composition of the fuses used is consistent, with a central core about 30 cm in length comprising of a ribbed porcelain former, or tube, around which a number of flat, notched, ribbons of silver filament are spirally wound, and which, in turn, are encased in another porcelain tube, or barrel, filled with sand or silica. The fuses are completed at each end by a metal end‑cap. A striker pin is embedded in one end‑cap of each fuse, which, in the event of a fault, will eject by the operation of a small explosive charge forcing the striker pin to emerge from the end‑cap.
The fuses are supported in the tank by a metal fuse carriage assembly (fuse carriage), with each fuse's end‑caps sitting in two 'U' shaped holders (fuse clip), one at the front of the tank and one at the rear, with a hinged fastener clipping over the top of each end‑cap (clip fastener), and a metal strip, called an 'end‑stop', which prevents a fuse in the fuse clips from moving forward, or backwards. The end‑caps with the striker pins are designed to be positioned in the fuse clip at the rear of the tank. Bakelite (a type of plastic) baffle plates sit vertically between the fuses and beneath each fuse is another Bakelite baffle plate, or tray, sitting horizontally. There are vertical metal baffle plates positioned parallel to the top part of the front and each side of the tank. The front metal baffle plate (front baffle) is 40 mm in from the front wall, reaching down to just below the surface of the oil in the tank.
When the lid of the tank is closed, the three fuses are completely submerged in oil, with an air gap at the top of the tank. In that position each fuse is connected to the HV in the busbars.
The fuses are designed to operate so that when an electrical current exceeding the rated current of a fuse flows through a fuse (overcurrent), the silver filaments will melt creating gaps in the filaments and interrupting the current. Where the fault occurs in only one phase, the operation of the striker pin ejecting from the end‑cap will impact, or trip, a mechanical switch, disconnecting the other phases.
The switches are designed to allow the fuses to be disconnected from the HV, lifted out of the oil tank, and replaced, while the busbars are still 'live', that is still connected to the HV. This is achieved by turning the switch to the 'off' position, disconnecting the transformer to which that switch is connected, and then applying the earth switch. The lid of the tank can then be opened causing the fuse carriage to rise, lifting the fuses from their normal position to a position out of the oil and disconnected from the live busbars below. The oil is allowed to drain through a series of holes in the Bakelite trays below each fuse. In that position, the fuses may be replaced. An 'interlock' prevents the lid from being opened until the outgoing supply has been disconnected and earthed. However, the switch in that condition is not 'isolated' in the sense that it is still connected to electricity. Equipment that is not isolated and earthed is referred to as 'live'.
If it is necessary to replace a fuse, the usual practice is to replace all three fuses.
The oil in the tanks operates to insulate the busbars and to reduce the risk of electrical arcing. That oil is usually light in colour, and can degrade over time, particularly in the presence of arcing. Accordingly, the oil within the tanks is tested at regular intervals and changed if outside acceptable parameters. Oil changes are performed with the switch isolated.
In order to isolate the GF3, Substation 4 must be isolated.
Whilst there are sumps in the tanks, oil is commonly removed using a vacuum pump, rather than opening the sumps, in order to maintain the integrity of the sump seals.
Two fuses in the GF3 on 2 February 2015 were each rated to operate at 90 amps, and one was rated at 100 amps.
Relationship between HES and the Manager
Until about August 2010, the Manager engaged a company called O'Donnell Griffin to undertake HV maintenance and repair work at the Galleria. When an employee of O'Donnell Griffin left that company to join HES, Andrew Skipper, the Operations Manager of the Galleria who was employed by the Manager, approached him about HES doing the Galleria's HV maintenance and repair work.
That employee is not a party to these proceedings but features in these reasons. I do not consider it is appropriate in the circumstances to name him and will refer to him as 'AB' (not his initials).
After August 2010 until February 2015, HES performed the HV maintenance and repair work at the Galleria. However, the Manager did not engage HES in an ongoing agreement for work, as it did with some other contractors it engaged for other types of work. Instead, HES was engaged on what might be described as a 'piece work' basis, where the Manager would invite HES to quote for work and HES would carry out the work when the quote was accepted. Most of the work on which quotes were sought was for routine maintenance.
On one occasion, where HES recommended the replacement of a transformer previously connected to the GF3 in Substation 4, the Manager sought quotes from a number of HV service providers, but ultimately accepted HES' quote. HES replaced that transformer with Transformer 1 in April 2014.
Mr Skipper said that he would call on HES in the event of an emergency. However, there is no evidence of any such emergency work being required at the Galleria until 2 February 2015.
Events of 2 February 2015
The Galleria suffered a power failure during the early hours of the morning on 2 February 2015. Mr Skipper was told that morning that the power failure was due to a Western Power fault.
By the afternoon a section of the Galleria that received its electrical supply from Substation 4 was still suffering a loss of power. A Western Power electrician, John Watson, came to the Galleria at approximately 1.00 pm and checked the incoming supply at the Main Substation. Mr Watson then told the Galleria Maintenance Supervisor, David Willett, that the Western Power fault had been fixed and the problem was on the Galleria side.
Mr Skipper and Mr Willett thought the problem was likely to be with the HV system. Mr Skipper telephoned AB and asked him to arrange for someone from HES to come to the Galleria and investigate the fault.
AB was the business manager of HES' Town Group, and Mr Smith reported to him. On 2 and 3 February 2015, AB was on leave.
AB rang Mr Smith and asked him to attend the Galleria. AB told Mr Smith to take with him a set of HV fuses in case the fault was due to the operation of a fuse, and told him where he could find the fuses in the HES building.
Mr Smith rang Matthew Hutchins, a technician who had served his apprenticeship with HES. Mr Smith then collected the fuses and drove to the Galleria, where he met Mr Hutchins and went into Substation 4.
At 3.35 pm, before meeting Mr Smith, Mr Hutchins attended the Galleria centre manager's office and obtained a permit to work on the fault in Substation 4, and the keys.
Once inside Substation 4, Mr Smith saw that GF3 was in the 'off' position and T4 GF3 was in the 'on' position. He went to the LV switchboard in the LV room and tested the T4 GF3 for voltage and found that one of the three phases in T4 GF3 was not operating. He thought that the problem may be at the Western Power end, and he and Mr Hutchins walked to the Main Substation about 200 m to 300 m away, to see if there was anything unusual there.
He and Mr Hutchins then walked back to Substation 4, and Mr Smith rang AB. Telephone records in evidence record a 5 minute 54 second call to AB's mobile phone number starting at 4.42 pm, and there is no dispute that Mr Smith made this call to AB at that time. During the call, Mr Smith told AB that they had found the GF3 in the 'off' position, and that, although the T4 GF3 was in the 'on' position, they had checked for voltage on the LV switchboard, and a phase was absent.
Mr Smith then prepared to undertake the process of isolating Transformer 2 from the electrical supply.
This process, called 'switching', usually involves writing a programme which is checked by another HV technician, setting out the chronological order of events to isolate HV equipment, to ensure that the HV is turned off without disruption to supply elsewhere. Mr Smith did not prepare a written switching programme, as he said it was a relatively basic programme, although he intended to prepare one for HES's records later.
Mr Smith got into his HV personal protective equipment and Mr Hutchins stood outside the door of Substation 4. Mr Smith turned the T4 GF3 to the 'off' position and went to the LV switchboard, and checked the two phases that were still operational were off. He then came back to the T4 GF3 and applied the earth. At that point the HV cable supplying power to Transformer 2 was off and earthed. However, power was still being supplied to the T4 GF3 and the busbars running through both the T4 GF3 and the GF3 were live.
Mr Smith then tried to open what he thought was the fuse tank in the T4 GF3 but was unable to do so. He rang Mr Richards, because he was not certain which tank the fuses were in. Telephone records in evidence record a 5 minute 2 second call to Mr Richards' mobile phone number starting at 5.00 pm. There is no dispute that this was the time of Mr Smith's first call to Mr Richards.
There is also no dispute that Mr Smith called Mr Richards twice at around this time, as is evidenced by the telephone records, although Mr Richards only remembers speaking to Mr Smith once. There is a dispute about what was said in the calls, which I address below. However, there is no dispute that Mr Smith asked Mr Richards how to access the fuses in the T4 GF3, and Mr Richards told him how to do that.
Mr Smith then removed all three fuses from the T4 GF3 and put them into a heavy duty plastic bag. Mr Smith inserted the replacement fuses into the T4 GF3 and closed the lid. The fuses in the plastic bag were put into the back of Mr Hutchins' vehicle at some point.
Mr Smith removed the earth and turned the T4 GF3 on, restoring power to Transformer 2, and, in turn, to the LV switchboard in the LV room. Mr Smith then turned his attention to the GF3.
As the GF3 was already in the 'off' position, he put the earth onto the outgoing cable to Transformer 1. As with the T4 GF3, HV continued to be supplied to the GF3 through the busbars. Mr Smith undid the two retaining bolts and lifted the lid of the GF3.
Mr Smith said that, when he looked inside, all he saw of the 'red' fuse were the two end‑caps. He said in evidence-in-chief:
I have no recollection of seeing the ceramic body at all. I just remember the end‑caps and the colour of the oil - I described (sic) the transformer oil as a very light honey coloured texture. It was different. It had a greyish kind of colour.
Mr Smith said that the end‑caps of the 'red' fuse were in their holding clips, and he believed the holding clips of the end‑caps were locked. Mr Smith said the other two fuses were 'ok'.
Mr Smith then rang Mr Richards a second time. Telephone records in evidence record a 1 minute 50 second call to Mr Richards' mobile phone number starting at 5.44 pm, and it is not in dispute that this was the time of the second call to Mr Richards.
There is a dispute about what Mr Smith said during this second call, and what, if anything, was agreed, which I address below, again noting that Mr Richard's memory was that Mr Smith rang him only once on 2 February 2015. However, it is not in dispute that by the end of the call Mr Richards had agreed to come to the Galleria the next morning at 9.00 am.
After he rang Mr Richards, Mr Smith rang AB for the last time that day. Telephone records in evidence record a 7 minute 21 second call to AB's mobile phone number starting at 5.52 pm, and there is no dispute that this was the time of the last call to AB. The content of that telephone call is addressed below.
After speaking to AB, Mr Smith lowered the lid of the GF3 and put an HES lock on the earth switch with an 'out of service' tag. He said that he believed that he put the lid's retaining bolts in but did not recall if they were finger tight or whether he used a spanner to make sure they were secure. Mr Smith then discussed with Mr Hutchins the equipment that they would need to test Transformer 1 the following day.
At some time, Mr Smith told Mr Skipper that they had one transformer operational but that, because the other transformer was off, Mr Skipper would need to tell the tenants to minimize their usage to reduce the load. Before leaving the Galleria, Mr Smith told Mr Skipper that power could not be restored from Transformer 1 that night.
Events of 3 February 2015
On 3 February 2015, Mr Smith arrived at the Galleria, after going to the HES building to collect the equipment needed for the planned testing of Transformer 1. When he arrived, Mr Hutchins was sitting in his car near the transformer compound. They started setting up in preparation for testing Transformer 1.
Mr Hutchins had, again, already attended the centre manager's office and obtained a permit to work on the fault in Substation 4, and signed in.
Mr Richards had never been to the Galleria before and had never done any work there, and was running late. Mr Richards said, in effect, that he noticed Mr Smith's van near the transformer enclosure and he parked his car on the corner outside the enclosure fence because he did not expect to be there for more than a few minutes.
After meeting outside Substation 4, Mr Smith, Mr Richards, Mr Hutchins and Mr Cummings went into Substation 4, and the lid of the GF3 was opened. Mr Smith and Mr Richards heard a sound, which Mr Smith described as the oil starting to bubble, and Mr Richards as a whooshing sound. Mr Smith said, 'get out' and they ran, and the GF3 exploded.
After the explosion the lid of the GF3 was found in an open upright position.
There are disputes about what was said during this period and the manner in which the lid of the GF3 was opened, which I address below.
After the explosion
After the explosion the Director of Electrical Compliance in Western Australia issued an order under s 18B of the Energy Coordination Act 1994 (WA) prohibiting the opening of lids of Long and Crawford switches (L & C switches) until the switch is isolated from electricity supply, and requiring they remain isolated until all work is completed and the lid closed. A further order was then issued extending the prohibition to all HV oil insulated combined fuse switches.
The mechanism of the explosion
Ultimately, the mechanism of the explosion was not in dispute at trial, principally relying on the evidence of Graham Rowe, an EnergySafety inspector who conducted an investigation after the explosion. Mr Rowe's report dated 22 September 2016 is exhibit 41.
The evidence supports a finding, which I make, that the explosion was caused by the end‑cap of the 'red' fuse, which had originally been held in the fuse clip on the front left hand side of the GF3 tank, falling to the bottom of the tank and coming into contact both with the live busbars at the bottom of the tank and the wall of the tank, resulting in a short circuit current, which in turn created an electrical arc of 8,000 amps. The very high energy levels produced by the arc heated the oil in the tank so rapidly that a high‑pressure gas bubble, primarily comprising flammable hydrogen, was created, which exploded on contact with the air, creating a fireball.
There was an issue about the mechanism by which the end‑cap was able to come into contact with the live busbars, which I address later in these reasons.
Summary of the claims
Mr Smith's claim against HES
Mr Smith claims against HES, as his employer, for damages for breach of common law duties of care alternatively statutory duties under owed him s 19 of the Occupational Safety and Health Act1984 (WA) (OSHA) and reg 3.1 of the Occupational Safety and Health Regulations1996 (WA) (OSHR).
It is not in dispute that Mr Smith has complied with the requirements of s 93K(4) of the Workers' Compensation and Injury Management Act 1981 (WA) (WCA), and is entitled to pursue a claim for damages against HES in these proceedings.
Mr Smith says that HES owed him duties, in particular:
1.to provide him with a safe place of work and a safe system of work;
2.to adequately warn him of a risk to which he might be exposed in the course of his work;
3.to provide adequate supervision; and
4.not to expose Mr Smith to hazard or danger.
In summary, Mr Smith claims that on 2 and 3 February 2015 there was a foreseeable risk that a physically damaged fuse inside the GF3 could cause the GF3 to explode, and cause injury or death to anyone in the vicinity, and that, in the face of that foreseeable risk, HES breached its duty of care to Mr Smith, by:
1.failing, through AB, to assess the risk of harm and give Mr Smith a clear instruction not to carry out further work on the GF3 until the GF3 was isolated, including inspecting or examining the GF3 with Mr Richards;
2.failing to have in place a safe system of work by:
(a)failing to require that no work, including inspections, was done on L & C switches in any circumstances which fell outside the normal scope of work permitted to be carried out on such switches when the busbars were live, namely routine replacement of fuses and oil sampling; and
(b)failing to ensure that Mr Smith had the necessary training and supervision to ensure that he was not exposed to risk in the unusual circumstances he faced on 2 and 3 February 2015; and
3.failing to replace the batteries in the battery charger before 2 February 2015, or to ensure that the batteries were replaced.
In relation to the alleged breach by failing to instruct, Mr Smith submits that:
1.HES's HV Switching Programme Manual (Manual of Standards), which is exhibit 11, required Mr Smith to contact his manager, AB, in the event of damage or a defect with electrical apparatus, which Mr Smith did, and AB was required to give further directions as to isolation.
2.As a result of Mr Smith's telephone call with AB, HES knew that a fuse within the GF3 had disintegrated, which was a highly unusual occurrence, and knew that Mr Smith had arranged for Mr Richards to come and have a look at the GF3 the following day. In those circumstances, HES, by AB, knew or ought to have known that Mr Smith intended, and was likely, to look inside the tank of the GF3 with Mr Richards while the busbars were live.
3.In light of that knowledge, HES, by AB, was required to direct Mr Smith not to do anything further with, or near, the GF3 until it was isolated. This step would have provided a safe work environment for Mr Smith and his co‑workers, where the risk of electrical explosion and fire was minimised.
4.In breach of its duty to Mr Smith, HES, by AB, failed to give Mr Smith any such direction. Instead, HES, by AB, implicitly approved the plan Mr Smith had informed AB he intended to take, and did nothing to prevent him carrying out that plan.
5.Giving such a direction was an obvious step in light of the evidence that live HV work, if not prohibited, was very exceptionally performed, and was a reasonably practicable step.
In relation to the alleged breach by failing to provide a safe system of work Mr Smith submitted that HES's system of work was not a safe system as it allowed employees to work on live equipment without requiring special precautions other than to inform a manager where equipment was found to be defective or faulty. In particular, Mr Smith says HES had no policy, as it should have done, to prohibit work on live apparatus, or to require isolation unless written managerial authority was given.
Mr Smith also claims against the Owners and the Manager in relation to the issue of the dead batteries in the battery charger, and his claim against HES in this respect is outlined under that heading below.
HES' defence
HES admits that it owed Mr Smith a common law duty to take reasonable care, and to comply with s 19 of the OSHA, but denies it breached these duties.
HES also admits that a disintegrated fuse would have contaminated oil in GF3 with the pieces of the fuse causing it to be unsafe to undertake any work on it.
HES says, in effect, that it met its obligations to Mr Smith, by AB instructing Mr Smith to obtain the assistance of Mr Richards, who HES says was a person with specialist expertise in L & C switches.
HES says that Mr Smith had an obligation to exercise reasonable care for his own safety and failed to do that because:
1.Mr Smith was aware, as a result of his experience, that the disintegrated fuse was unusual and unsafe, and appreciated the danger. Mr Smith also knew that it was not only beyond Mr Smith's experience, but it was beyond the experience of everyone at HES, to undertake work on it.
2.Mr Smith knew that he should not perform any work on the GF3 and that he needed the specialist advice of RES and Mr Richards.
3.Despite this knowledge:
(a)sometime before Mr Richards arrived on 3 February 2015, Mr Smith did work on the GF3 by removing two whole fuses and an end-cap from the GF3, and loosening or dislodging the second red fuse end‑cap from its secure position in a fuse clip, when it was unnecessary to do so, and failed to tell Mr Richards or HES that he had done so; and
(b)on 3 February 2015, despite knowing that the pieces of the disintegrated fuse, including the end‑cap, were still inside the GF3, Mr Smith sought Mr Richards' assistance to help him open the lid of the tank and repeatedly shook the GF3 in his attempts to open the lid, thereby dislodging the remaining end‑cap or other remnants of the disintegrated fuse, resulting in the explosion; alternatively
(c)Mr Smith and Mr Richards removed the two fuses and an end‑cap and dislodged the second 'red' fuse end‑cap or other remnants of the disintegrated fuse, resulting in the explosion.
HES says that, in circumstances where Mr Smith had removed the fuses and an end‑cap from the GF3, and loosened or dislodged the remaining end‑cap which remained loose, in the GF3, if Mr Smith had told Mr Richards he had done this, the explosion would not have happened, because Mr Richards' evidence was that in those circumstances he would not have approached the GF3.
HES also raised in submissions, but did not plead, that Mr Smith was contributorily negligent in failing to comply with HES procedures which required completion of job safety analysis and access permit forms before inspecting the GF3 on 3 February 2015.
In relation to the contributory negligence claim, Mr Smith submits that:
1.There can be no finding of contributory negligence in relation to HES as Mr Smith had told his manager, AB, what he was going to do and AB had implicitly approved the plan, which was to return the next day and look at the GF3 with Mr Richards.
2.Although he was concerned about the situation his consciousness of the risk and understanding of how to make the work safe was incomplete, which is why he reported the issue to AB and sought feedback.
3.There was no allegation that Mr Smith had relevantly departed from HES' system of work or safety requirements, or engaged in endangering conduct for personal reasons or in self‑interest.
Mr Smith's claims against RES
Mr Smith's claim against RES narrowed at trial from that pleaded. In particular, Mr Smith accepted that there was no contractual relationship between HES and RES and that Mr Richards came to the site on 3 February 2015 to inspect and quote for repairs of switch equipment in Substation 4. Mr Smith also accepted that Mr Richards' involvement prior to the explosion was about 10 minutes of telephone calls on 2 February 2015, and about 10 minutes on site before the explosion.
However, Mr Smith maintained that, as at 3 February 2015, RES, by Mr Richards, had a common law duty of care to warn him of the risks of inspecting the GF3 with a disintegrated fuse in it, and lifting the lid while the busbars were live.
In summary, Mr Smith alleged that RES' duty arose from the combination of the following:
1.RES, and Mr Richards, held themselves out as having expertise in HV maintenance and construction and oil switchgear maintenance;
2.Mr Smith had asked Mr Richards to attend at Substation 4 with a view to being engaged by HES to carry out repair work as a contractor with particular expertise;
3.Mr Richards knew that Mr Smith was involved in HV activities and knew the associated risks;
4.Mr Richards believed that Mr Smith, and HES, did not have the knowledge or experience to work on switches such as the T4 GF3;
5.Mr Richards knew that a fuse in the GF3 had disintegrated, and knew of the risks associated with that, in particular, the risk of loose metal in the GF3 contacting the live busbars and causing a short circuit in the GF3, with the consequential risk of explosion;
6.In those circumstances, and to Mr Richards' knowledge, Mr Smith was reliant on Mr Richards' knowledge and experience to address the condition of the GF3; and
7.Mr Smith and Mr Richards were physically proximate.
Mr Smith accepted that any finding that Mr Richards was under a duty to warn Mr Smith was dependant on the court finding that Mr Richards knew, or ought to have known, about the condition of the GF3 on 3 February 2015.
In addition, HES claims that, if it is held liable to Mr Smith, it is entitled to a contribution by RES towards that liability. HES' claim against RES was somewhat broader in scope than Mr Smith's claim and was on the basis that:
1.On 2 February 2015, HES, by Mr Smith, engaged RES to attend the Galleria on 3 February 2015 and provide that specialised assistance, by reason of which RES owed a duty of care to Mr Smith to ensure that the inspection was planned and undertaken in a safe manner;
2.RES, by Mr Richards, breached its duty of care to Mr Smith by:
(a)failing to properly assess and recognise the risk of pieces of the disintegrated fuse coming into contact with the live busbars before commencing the inspection of the GF3;
(b)failing to make proper inquiries about the condition of the GF3 before commencing the inspection;
(c)failing to isolate the GF3 from all electricity prior to the inspection; and
(d)failing to properly supervise Mr Smith to avoid the risk of components of the disintegrated fuse coming into contact with the live busbars.
RES denies that it owed Mr Smith a duty of care or that it breached that duty. RES says, in particular, that:
1.there was no relevant relationship between RES and Mr Smith, or HES, giving rise to a duty of care;
2.neither HES nor Mr Smith identified any relevant superior specialist expertise possessed by RES, or Mr Richards;
3.Mr Smith had not requested Mr Richards provide specialist expertise, and there is no evidence that Mr Smith, for HES, had the intention of engaging RES or Mr Richards to provide any specialist expertise in relation to the GF3;
4.Mr Richards did not make any offer to attend the Galleria to provide such expertise, nor did he know that any such expertise was being relied on by Mr Smith or HES; and
5.Mr Smith, failed to fully inform Mr Richards of the relevant facts, and Mr Richards was, himself, vulnerable to the risk of injury from a danger created by Mr Smith, and HES.
RES claims that Mr Smith was contributorily negligent by failing to exercise reasonable care for his own safety by failing to tell Mr Richards that the GF3 was the switch with the disintegrated fuse in it, and that he had removed two fuses and an end‑cap but the other end‑cap was still in the tank and might be jamming the lid.
In relation to the contributory negligence claim by RES, Mr Smith says that:
1.he did not know the pieces of fuse were jamming the lid; and
2.what he had told Mr Richards was enough to convey to Mr Richards that the GF3 was unsafe.
The battery claim
Mr Smith claims against HES and the Owners and the Manager with respect of the failure to ensure that the dead batteries in the battery charger had been replaced, which in turn resulted in the Merlin Gerin's tripping mechanism being unable to operate. Mr Smith says these parties each owed him a duty to ensure the HV system at the Galleria was safe to work on, which required that its protection systems be maintained in an operational state.
There was no dispute at trial that this is only an issue to the extent that I find that there was an earth fault in Transformer 1 which would have been detected by the Sepam relay. In that case, the submission is, had the batteries been charged, the Merlin Gerin would have operated to cut off power to the GF3 before the 'red' fuse was damaged, and the explosion would not have occurred. In those circumstances, Mr Smith claims that the failure to replace the batteries was factually causative of the accident.
The battery claim against HES
Mr Smith says, in relation to HES, that HES was aware as a result of its scheduled maintenance work at the Galleria that the batteries in the battery charger were not functioning on 3 February 2015, and failed to replace them. Mr Smith claimed that HES was liable in negligence for failing to ensure that the batteries were replaced before directing him to work on the HV system at the Galleria, and in failing to warn the Owners and the Manager of the need to replace the batteries.
HES submits that it was not its responsibility to replace the batteries and it had informed the Manager that they needed to be replaced. HES also says with respect to this claim that this pleads a different cause of action to that in the writ and is outside the limitation period under s 14 of the Limitation Act 2005 (WA).
Battery claim against the Owners and the Manager
Mr Smith claims against the Owners and the Manager in negligence and pursuant to s 5(1) of the Occupiers' Liability Act 1985 (WA) (OLA), for failing to take reasonable care to ensure Mr Smith's safety from a danger due to the state of the premises. Mr Smith claims that that they had each been informed before 3 February 2015 that the batteries in the battery charger required replacing and failed to replace them, or to arrange for them to be replaced, and did not tell Mr Smith or HES that the batteries had not been replaced and that, accordingly, the protection system was not operating properly.
As far as the Owners are concerned, Mr Smith says that they did not take reasonable care in engaging the Manager, by failing to require the Manager to enter into a maintenance agreement for the HV system, under the terms of their agreement with the Manager, and by failing to enforce the terms of that agreement, or supervising the Manager's performance of its obligations under that agreement, to maintain the Galleria.
HES claimed a contribution from the Owners, if it is held liable to Mr Smith, on the basis that the Owners were vicariously liable for the negligence of the Manager, because the Manager was a managing agent and not an independent contractor. It also claimed a contribution from the Manager.
The Owners and the Manager accepted that the Galleria was 'a premises' under s 3 of the OLA. Neither was it in dispute that Substation 4 was under the control of, and occupied, by the Manager at the relevant time.
The Owners say that they exercised reasonable care in selecting the Manager to manage the Galleria and relied on the Manager to properly conduct maintenance and repair and are therefore not liable to Mr Smith or HES.
The Owners and the Manager say:
1.From 2010 to 2015, the Manager had exclusively engaged HV services from HES, and had exercised reasonable care in the supervision and selection of HES, and relied on HES to ensure that the HV equipment at the Galleria was correctly maintained;
2.The Manager was not given any indication that the need to replace the batteries was urgent or the consequences of the failure to do so and, in the circumstances, could not be expected to appreciate the significance of the batteries; and
3.There is no reasonable explanation for HES' failure to replace the batteries.
The Manager says, in any event, that Mr Smith's claim against it is statute barred pursuant to s 14 of the Limitation Act 2005 because Mr Smith joined the Manager to its claim after three years had elapsed since the cause of action accrued on 3 February 2015.
In response to the Manager's plea that the claim is statute barred, Mr Smith sought an extension of time to commence the action against the Manager to 28 February 2018 pursuant to s 39(3)(b) or (c), or s 39(4) of the Limitations Act.
The Owners and the Manager relied on the matters referred to above in support of its claim that Mr Smith was contributorily negligent.
Summary of the issues to be determined
In light of the above, the factual and legal issues to be determined are summarised as follows
1.What was said when Mr Smith called Mr Richards on 2 February 2015, and in particular:
(a)what did Mr Smith expect Mr Richards to do on 3 February 2015; and
(b)what did Mr Richards understand Mr Smith was expecting him to do on 3 February 2015?
2.What was said when Mr Smith called AB on 2 February 2015?
3.What was said and done when Mr Smith met Mr Richards on 3 February 2015 and, in particular:
(a)how was the lid of the GF3 opened; and
(b)what was Mr Richards' knowledge of the condition of the GF3 on 3 February 2015 before the lid was opened?
4.Did Mr Smith, either on 2 or 3 February 2015, before Mr Richards arrived, or on 3 February 2015 with Mr Richards:
(a)remove the remaining two fuses and a 'red' fuse end‑cap from their fuse clips in the GF3; and
(b)loosen or dislodge the second 'red' fuse end‑cap from its fuse clip.
5.With respect to the alleged specialist expertise of RES and Mr Richards as at 2 February 2015:
(a)did Mr Richards have any relevant superior expertise over that of Mr Smith and HES in L&C switches and the GF3 in particular;
(b)did Mr Smith and HES believe Mr Richards to have any relevant superior expertise in L & C switches and the GF3, and if so what was the basis of that understanding;
(c)had Mr Richards formed the opinion that Mr Smith and HES did not have adequate knowledge or experience to work on L & C switches; and
(d)what did each of them understand to be the risks, if any, associated with a disintegrated fuse in a GF3.
6.With respect to Mr Smith's employment with HES:
(a)what supervision and training did Mr Smith receive from HES relevant to working on L & C switches, including a GF3 in the condition of the GF3 on 2 and 3 February 2015;
(b)what were HES' policies and procedures applicable to HV technicians working on, and inspecting, L & C switches at that time; and
(c)did Mr Smith comply with HES' policies and procedures?
7.With respect to HES:
(a)did HES breach its duty of care to Mr Smith by:
(i)failing to direct Mr Smith on 2 February 2015 not to carry out further work on the GF3 until it was isolated;
(ii)failing to have in place a safe system of work by:
A.failing to direct that its employees undertake no work (including inspections), without authority, on L & C switches that were not isolated; alternatively
B.failing to direct that its employees undertake no work (including inspections), other than for the purpose of routine replacement of fuses and oil sampling, on L & C switches that were not isolated; and
C.failing to ensure Mr Smith had the necessary supervision and training so that he was not exposed to risk in the circumstances he faced on 3 February 2015; and
(b)if HES did breach its duty of care to Mr Smith, was that breach causative of the explosion and Mr Smith's injuries and loss.
8.With respect to RES:
(a)did RES owe Mr Smith a duty of care to warn Mr Smith not to enter Substation 4, or to inspect the GF3, until the GF3 was isolated;
(b)did RES owe Mr Smith a duty of care to ensure the inspection of the GF3 was planned and undertaken in a safe manner; and
(c)if RES did owe Mr Smith a duty of care:
(i)did RES breach that duty; and
(ii) was RES' breach causative of the explosion and Mr Smith's loss?
9.With respect to the battery issue:
(a)was there an earth fault in Transformer 1 on 2 February 2015 that was detected by the Sepam relay, resulting in the Sepam relay sending a signal to the Merlin Gerin to cut power to Substation 4 that the trip coil mechanism could not perform because the batteries in the battery charger were dead;
(b)if the answer to 9(a) is 'yes', did the 'red' fuse in Transformer 1 disintegrate as a result of the Merlin Gerin trip coil mechanism failing to operate;
(c)if the answers to 9 (a) and (b) are 'yes', was the failure to replace the batteries causative of the explosion and Mr Smith's loss;
(d)if the answers to 9 (a), (b) and (c) are 'yes':
(i)was HES negligent in failing to replace the batteries, or ensuring that the batteries were replaced;
(ii)was the Manager negligent in failing to replace the batteries, or ensuring that the batteries were replaced; and
(iii)if the Manager was negligent, are the Owners vicariously liable for that negligence, or liable in negligence on some other basis.
10.Should Mr Smith be granted an extension of time to commence his claim against the Manager.
11.To what extent, if any, was Mr Smith contributorily negligent, and, in particular, did Mr Smith fail to take reasonable care for his own safety.
12.To the extent that any defendant is held to be liable in negligence for Mr Smith's loss, and Mr Smith is held to be contributorily negligent, what are their respective contributions?
Summary of legal principles
Generally
Mr Smith's claims in negligence are to be determined in accordance the provisions of the Civil Liability Act 2002 (WA) (CLA) insofar as the elements of the duty of care and causation are concerned in the claims against HES and RES, and insofar as the element of causation is concerned in the claim against the Owners and the Manager.
Section 5B(1) of the CLA provides that a person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless:
1.the person knew or ought to have known of the risk;
2.the risk was not insignificant; and
3.in the circumstances a reasonable person in the person's position would have taken those precautions.
Section 5B(2) of the CLA provides that, in determining whether a reasonable person would have taken precautions against a risk of harm, the relevant considerations include the probability that harm would occur if care is not taken, the likely seriousness of the harm and the burden of taking precautions.
Section 5C(1)(a) of the CLA provides that a determination that the fault of a person caused a particular harm requires the fault to be a necessary condition of the risk of harm.
The element of breach of duty is to be considered by the application of common law principles rather than the CLA. These were stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 - 48 as follows:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not farfetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
Claim against HES
Mr Smith claims HES as his employer, in negligence and for breach of duty under the OSHA. In particular, s 19(1)(a) and (b), and s 19(2) of the OSHA provide:
(1)An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall -
(a)provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards; and
(b)provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and
….
(2)In determining the training required to be provided in accordance with subsection (1)(b) regard shall be had to the functions performed by employees and the capacities in which they are employed.
Section 20 of the OSHA relevantly provides as follows:
(1)An employee shall take reasonable care -
(a)to ensure his or her own safety and health at work; and
(b)to avoid adversely affecting the safety or health of any other person through any act or omission at work.
(2)Without limiting the generality of subsection (1), an employee contravenes that subsection if the employee -
(a)fails to comply, so far as the employee is reasonably able, with instructions given by the employee's employer for the safety or health of the employee or for the safety or health of other persons; or
(b)…
(c)…
(d)fails to report forthwith to the employee's employer -
(i)any situation at the workplace that the employee has reason to believe could constitute a hazard to any person that the employee cannot correct; or
(ii)…
The duties of an employer to an employee were summarised by Pullin JA in Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148 [17] - [21] as follows:
17There is no dispute that SRS, as an employer, owed a common law duty to its employees to take reasonable care to avoid exposing its employees to unnecessary risk of injury. The duty encompasses an obligation to take reasonable steps to provide a safe system of work. Discharge of the duty requires the employer to warn employees to avoid work hazards of which it knew, or ought to have known. It also extends to guarding against foreseeably inadvertent and negligent conduct on the part of others.
18Whilst an employer's position in relation to provision of a safe system of work may be constrained by the fact that it does not have control of the work place, that fact alone cannot relieve the employer of its obligation to consider the risk, particularly where the work is carried out at the workplace regularly.
19The duty of care is 'non‑delegable'. As a result the duty has sometimes been described as a 'strict liability' … However, it is strict only in the sense that an employer is liable regardless of whether the employer has itself acted carefully. That means that an employer cannot escape responsibility for the discharge of the duty of care by delegating it to a third party. Labelling an employer's duty as 'non delegable' does not affect the content of the duty. It does not convert the duty into an absolute liability to compensate an employee for an injury under any circumstances and even if reasonable care was taken to avoid the foreseeable risk of injury. In other words it is not a duty to preserve workers from all harm. It remains a duty to exercise reasonable care. As Gummow J said in Roads and Traffic Authority of NSW v Dederer: '[W]hatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.'
20In Sydney Water Corp v Turano, French CJ, Gummow, Hayne, Crennan and Bell JJ said that the concept of reasonable foreseeability is relevant at each of the three stages of the analysis of liability in negligence: the existence and scope of a duty of care, breach of the duty, and remoteness of damage … As Gleeson CJ observed in Tame v New South Wales the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that eventuated. If the conduct is inadvertent or negligent conduct of others, the prospect of such inadvertence or negligent conduct must also be foreseeable.
21Reasonable foreseeability will be determined by what the employer knew or ought to have known. The negligence may be where the employer knows of the risk of injury, or where the employer ought to have known of such risk. If the injury is caused by, or arises out of an unsafe system of work, it must be an unsafe system of which the employer is, or ought to have been aware. The question of foreseeability is to be judged by asking what a reasonable person would have done to avoid what is now known to have occurred. (References omitted)
An employer's duty:
1.extends to giving the employee direction in the performance of work where directions might reasonably be thought to be required to secure an employee from danger or injury: Kondis v State Transport Authority [1984] HCA 61, (1984) 154 CLR 672, 689 (Mason J);
2.includes an obligation not only to provide a safe system of work but to maintain and enforce such a system: McLean v Tedman (1984) 155 CLR 306, 311 ‑ 313. A system of work is the method adopted in carrying out the employer's business, which the employer had control over, as opposed to the isolated or day to day acts of the employee: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 [54]; and
3.requires the employer to take into account the possibility of thoughtlessness, inadvertence and carelessness of its employees: Czatyrko v Edith Cowan University [2005] HCA 14, (2005) 79 ALJR 839 [12].
Claim against the Owners and the Manager
Mr Smith claims against the Owners and Manager in negligence and for breach of duty under s 5 of the OLA which relevantly provides:
5 (1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
…
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a)the gravity and likelihood of the probable injury; and
(b)the circumstances of the entry onto the premises; and
(c)the nature of the premises; and
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e)the age of the person entering the premises; and
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
Section 6(1) of the OLA provides:
6 (1)An occupier is not liable under this Act where the damage is due to the negligence of an independent contractor engaged by the occupier if -
(a)the occupier exercised reasonable care in the selection and supervision of the independent contractor; and
(b)it was reasonable in all the circumstances that the work that the independent contractor was engaged to do should have been undertaken.
Similarly, at common law, it has been held that an occupier may discharge their duty of care by exercising reasonable care and skill in engaging a contractor to perform work, in arranging the terms of engagement and in confirming the person does take reasonable steps: Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 [53].
In Geroheev Pty Ltd v Wheare [2004] WASCA 206 [22] - [23], Templeman J held that a managing agent was not an independent contractor.
Contribution claims and contributory negligence
The effect of s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (Law Reform Act) (WA) is to allow a party liable in damages for negligence or breach of statutory duty to claim a contribution from any other person who is liable in respect of the same damage.
The effect of s 4(1) of the Law Reform Act is to allow the court to reduce the damages awarded to a plaintiff, where the plaintiff could by the exercise of reasonable care have avoided the consequences of the defendant's negligent act, or might otherwise be guilty of contributory negligence, as the court thinks just according to the degree of negligence.
Section 5K of the CLA provides that the principles referred to in relation to determining the liability of a defendant to a negligence claim also apply in determining whether the plaintiff has been contributorily negligent in failing to take precautions against the risk of that harm. The standard of care is that of a reasonable person in the position of the plaintiff, and the matter is to be determined on the basis of what the plaintiff knew or ought to have known at the time.
The onus of establishing contributory negligence is on each of the defendants and the test is an objective one: Town of Port Hedland v Hodder (No 2) [2012] WASCA 212, (2012) 43 WAR 383 [301] and [298] (McLure JA).
With respect to HES, its contributory negligence claim is to be approached on the basis that the employer has failed to discharge its obligation to take reasonable care, and the question is whether, in the circumstances and conditions in which the employee had to do their work, the employee's conduct amounted to mere inadvertence, inattention, or misjudgment or to negligence: Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 [5].
In McLean v Tedman [1984] HCA 60, (1985) 155 CLR 306, 315, it was held that in considering contributory negligence:
[The tribunal of fact] may have regard to inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand and other prevailing conditions. It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, 'excusable in the circumstances because not incompatible with the conduct of a prudent or reasonable man'.
The making of an apportionment involves a comparison both of the culpability of each, that is the degree of departure from the standard of care of a reasonable person, and the relative importance of the parties' acts in causing the injury. The whole conduct of each negligent party must be subjected to comparative examination and the significance of the various elements involved will vary from case to case: Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 [10].
What was said when Mr Smith called Mr Richards on 2 February?
Evidence
Mr Smith
Mr Smith said, in effect, that the first time he rang Mr Richards he told him he was having trouble opening the lid of a T4 GF3 to access the fuses and Mr Richards told him what he needed to do to open the lid, although he could not recall precisely what Mr Richards had said.
Mr Smith's evidence was that when he rang Mr Richards the second time, he said:
I have seen something I've never experienced, a fuse that has disintegrated. The oil has changed, it's contaminated. Are you available to come tomorrow to provide a cost estimate of the repairs so that we can forward that on to the client?
Mr Smith said that Mr Richards said, 'I've never seen anything like this either'. Mr Smith said, 'I think he referenced be careful'.
Mr Smith said that he believed he said to Mr Richards that the two end‑caps were in their fuse clips. In cross‑examination by counsel for HES he said:
I explained to Dave that we have opened up the lid of the GF3 and there's a fuse that's disintegrated ‑ the end‑caps were still in the fuse holders, and the oil is contaminated, and I believe I expressed, I have never seen this and I believe Dave said the same thing. I asked Dave would he be available to come to site the next morning, and I said I need you to give me a cost estimation to get this switch repaired so we can present it to the client.
However, in cross‑examination by counsel for RES, when it was put to him that he did not tell Mr Richards that there were end‑caps left in the GF3 tank, Mr Smith said 'I - I believe the disintegrated fuse - I ‑ I can't recall if I said the end‑caps were still in there or not'. He went on to say: 'I believe because of the seriousness of what we found that I would have told Dave the fuse had disintegrated and the oil was contaminated'.
Mr Smith said that he referred to a GF3 in that call. In further cross‑examination by counsel for RES, Mr Smith said he would have said to Mr Richards it was a GF3.
Mr Richards
Mr Richards recalled one telephone call from Mr Smith on 2 February 2015, when he was at home. He estimated that he had not spoken to Mr Smith for over a year before that call.
Mr Richards' evidence about the conversation he remembered was as follows:
Mr Richards: Mr Smith was asking me about getting a lid up on a T4 GF3. It was a small lid, and he was trying to undo the single bolt on this lid, and I told him it was the wrong lid; it was the lid in the middle with two bolts on the T4 GF3.
…
Counsel:What else did he say to you?
Mr Richards: Well, as he was getting the lid up, he said to me 'There's a fuse that has ruptured'.
…
Counsel:Was anything else said?
Mr Richards: He said that 'We need you to come out to - to - do a quote on maintenance'.
Counsel:He asked you to go out to do a quote on maintenance?
Mr Richards: Yes the next morning, yes.
Counsel:What did you say in response to that?
Mr Richards: I said I would be there about 9 o'clock.
Counsel:Do you remember anything else said by him or you in that telephone conversation?
Mr Richards: Yes, I said I had never seen a ruptured fuse before.
Counsel:Okay. And that's it? That's all that was said?
Mr Richards: Yes, basically, he was at Morley Galleria. That's the - I don't know even what order he said it in, but he said about he's at Morley Galleria.
Mr Richards said in cross‑examination that Mr Smith told him that the lid he was trying to open had only one bolt, and Mr Richards said 'That's not where the fuses are. The fuses are in the middle lid with the two bolts'. Mr Richards said that the next thing that Mr Richards remembered Mr Smith saying, after they spoke about the lid, was that Mr Smith had a ruptured fuse, and he asked him to come out tomorrow to quote on some maintenance.
Mr Richards said that he could not be sure if Mr Smith used the word 'ruptured' or 'disintegrated' to describe the fuse. He agreed that during an interview he had given EnergySafety, he had said Mr Smith had told him that a fuse had 'disintegrated'.
Mr Richards denied that Mr Smith had told him that Mr Smith had never seen what he saw inside the GF3 before, whether he had described that as a ruptured or disintegrated fuse. He could not remember if Mr Smith had told him that the oil was contaminated, but said it was possible that Mr Smith had said that. He denied that it was possible that Mr Smith had mentioned a GF3. Mr Richards said that Mr Smith definitely did not mention anything about the end‑caps.
Mr Richards said, in cross‑examination, that he had said to Mr Smith that he had never seen it before, saying, in effect, that he had never seen a ruptured, or disintegrated fuse, and had never seen a cracked fuse inside a switch, although he had seen a cracked fuse after it had been dropped.
Mr Richards agreed, in cross‑examination, that it was the unit with the ruptured fuse that Mr Smith wanted him to come and have a look at, but said that all he knew was that he was coming out the next morning to quote for maintenance on the T4 GF3. Mr Richards agreed that he was to look at what he needed to do to maintain the chamber of the unit, and that would involve changing the oil, and he only anticipated draining the oil.
Mr Richards said, in cross-examination, that he needed to go to see the site before giving a quote because he needed to see if the hoses he had were long enough to reach the tank. He agreed that he did not need to go inside Substation 4, or to look inside the switch, to give a quote. Mr Richards denied that he wanted to show his employee, Alan Cummins, the inside of the switch and said he could look at the outside of the switch and see what it was.
In cross‑examination, Mr Richards agreed that changing the oil in the switch would require a total shutdown of power to Substation 4, but said there had been no discussion with Mr Smith about when that would occur.
Stephan Lauk
Stephan Lauk was a refrigeration technician working at the Galleria. He said that, as he was knocking off for the day on 2 February 2015, he stopped outside Substation 4 to talk to Mr Skipper and Mr Willett. He estimated that it was around 4.30 pm or 5.00 pm, based on his usual knock‑off time. Mr Lauk said that he went inside Substation 4 and saw there were two switches.
Mr Lauk said that a person he described as 'one of the HV workers', he could not recall who, opened the lid of the switch on the right, that is the GF3, 'about 10 to 20 centimetres or something like that'. Whilst Mr Lauk did not say so, there is no dispute that with the lid open 200 mm (or 20 cm) the fuses would still submerged in the oil.
When asked if he saw anything inside, Mr Lauk said:
I mean - a fuse, maybe. I don't really know - I'm not really - I wasn't really sure what I was looking at inside, so I can't say exactly what it was I saw; what I thought was a fuse with a crack, but that is - as that was what I was told ---
In cross‑examination, Mr Lauk said that he had been told a fuse had physically broken, and said:
I think that they said the fuse is broken; when they showed me inside I looked inside - I've never really looked inside one of those; I don't know how they are laid out, so I think I kind of saw what they - what I expected to see, which was a fuse with a crack in it. But I'm not even sure if I was looking at the correct fuse because since looking at it since then, I'm told that there's three fuses in there. I don't really recall seeing three fuses, so there's a good chance that I might've been looking at one of the fuses that wasn't broken. So it was a very brief look and I think I saw what I expected to see; but I am not even totally sure I was looking at the correct fuse inside the switch gear.
In re‑examination, Mr Lauk said he only really remembered seeing one fuse.
Findings
RES relied on Mr Lauk's evidence as evidence that the 'red' fuse had not disintegrated, as Mr Smith said, but was cracked, or 'ruptured', in support of Mr Richards' recollection that Mr Smith did not tell him that the fuse had disintegrated.
I infer from Mr Lauk's evidence, in light of the evidence of the surrounding circumstances that I have accepted, that Mr Lauk was shown inside the GF3 on the afternoon of 2 February 2015, at some time after it had first been opened but before Mr Smith and Mr Hutchins had packed up. It is not possible for me to make any finding about who showed Mr Lauk the GF3, other than it is likely to have been either Mr Smith or Mr Hutchins.
In light of his frank admissions of uncertainty about what he had seen, I do not accept Mr Lauk's evidence as establishing that the 'red' fuse was cracked, but otherwise intact, inside the GF3 when he looked at it.
Although there is a dispute about what he told Mr Richards, Mr Smith was firm in his evidence about what he did see inside the GF3, and that evidence was consistent with the objective evidence of what was found after the explosion. I accept his evidence on this is not only honest, but reliable.
Accordingly, I find that when Mr Smith opened the GF3 the 'white' and 'blue' fuses were in their clips, the only parts of the 'red' fuse remaining in the fuse carriage were the two end‑caps, in their fuse clips, the clip‑fasteners were closed, and the oil was greyish in appearance.
However, I do infer from Mr Lauk's evidence that the lid was lifted up from closed, that the lid was closed and reopened at least once before Mr Richards attended on 3 February, contrary to Mr Smith's recollection that, after closing the lid, he did not reopen it until Mr Richards arrived.
There is no doubt, as evidenced by the telephone records, that Mr Smith spoke to Mr Richards twice on 2 February 2015, as he recalled, and not once, as Mr Richards recalled. This undermines the reliability of Mr Richards' evidence about the content of the calls. He was also attempting to recall calls he had received unexpectedly, when he was at home after work, from a person he had not spoken to for a year.
I find that it is more likely than not that Mr Smith did tell Mr Richards that the fuse had disintegrated. I draw this conclusion because:
1.the conclusion that the 'red' fuse had disintegrated, rather than ruptured or cracked, is consistent with the evidence I have accepted of what Mr Smith saw in the GF3;
2.Mr Smith's use of the word 'disintegrated' to describe the fuse when speaking to three other HES technicians, Brett Syme, Andrew MacFarlane and Vincenzo Di Giorgio, and an LV technician working at the Galleria, Stuart Hartley, on the morning of 3 February, before the explosion.
This evidence was objected to as being inadmissible as to the truth of what Mr Smith was saying; that is that the fuse had disintegrated. However, it is open to me to rely on that evidence in determining the probabilities of Mr Smith using the word 'disintegrated' when he spoke to Mr Richards.
3.Given his evidence that this was a very unusual thing to have seen, in the ordinary course one would expect Mr Smith to tell Mr Richards that, given he was, at the very least, one of the first people he spoke to about the state of the fuse.
I find this conclusion easier to draw given Mr Richards' concession in his evidence that he could not be sure if Mr Smith used the word 'ruptured' or 'disintegrated' and his admission that he said Mr Smith used the word 'disintegrated' when speaking to EnergySafety.
I also find it more likely than not that Mr Smith, having spoken to Mr Richards not long before about the T4 GF3, did tell Mr Richards the disintegrated fuse was in a GF3, because it was a different switch to the T4 GF3.
However, I also accept Mr Richards' evidence that he understood the disintegrated fuse was in the T4 GF3, in light of the facts that he had only recently spoken to Mr Smith about the very similarly named T4 GF3, the brevity of the call, and his unfamiliarity with HV equipment at the Galleria.
Counsel for Mr Smith conceded that it is open to me to find, in light of Mr Smith's evidence, that Mr Smith did not say to Mr Richards that all that remained of the fuse were the two end‑caps in their clips or that the end‑caps were still in the tank, in light his evidence in cross‑examination. I accept Mr Richards' evidence that Mr Smith did not say this.
I also find, on the balance of probabilities, that Mr Smith told Mr Richards that he had never seen anything like it before, as being consistent with Mr Richards' response that he had not seen anything like it either. However, in light of Mr Richards' evidence, I do not accept on the balance of probabilities that Mr Richards said 'be careful' to Mr Smith, which Mr Richards denied. I consider that Mr Smith was mistaken in his recollection, and may be conflating this with his recollection of what AB said to him after he had spoken to Mr Richards.
I find that Mr Smith asked Mr Richards to give a cost estimate, or quote, for repairs. I do not consider that it is likely that he would have used the word 'maintenance', despite Mr Richards' recollection. In the circumstances, given Mr Smith's evidence of the condition of the tank, the situation was not one of 'maintenance' but of repair of something damaged. However, on the evidence of both Mr Smith and Mr Richards, I find that Mr Smith said nothing to Mr Richards about needing Mr Richards' advice about how to deal with the disintegrated fuse, or the GF3 with such a fuse in it, nor did he ask Mr Richards for any advice on how to go about inspecting the GF3 in such a state.
On the evidence of both men, whether it was for maintenance or repair, I find that both understood that no work, including the draining of oil, was to be done on the GF3 until Substation 4 was isolated.
What was said when Mr Smith called AB on 2 February 2015?
Mr Smith's evidence is the only evidence about the content of his calls to AB at 4.42 pm and 5.52 pm on 2 February 2015. AB was not called to give evidence. I can use that unexplained failure to more readily draw inferences from the other evidence before me although cannot use it to fill in any gap in the evidence: Jones v Dunkel (1959) 101 CLR 298.
There was no dispute, and I have found, that during the first of these calls, Mr Smith told AB that the GF3 was in the 'off' position, and that although the T4 GF3 was in the 'on' position, a voltage check on the LV switchboard indicated a phase was absent.
With respect to the second telephone call, Mr Smith said in evidence‑in‑chief as follows:
Mr Smith:I informed [AB] that - what we had found - the disintegrated fuse, the contaminated oil. I told him that I had given Dave Richards a quote to come up the following day to give us a cost estimate to - to quote for possible repair.
Counsel:What exactly did you say to [AB] about contaminated oil?
Mr Smith:I - I would have said to him the sediment, silica and that from the - the internals of the fuse would have contaminated the oil.
Counsel:And what did you say about the fuse:
Mr Smith:I - I would - I would say that I was so concerned about the disintegrated fuse that I would have told him exactly what I have said; that the fuse is disintegrated. I couldn't see any of the - the porcelain bits.
Counsel:So go on. You've told him about the oil and the fuse and then what else was discussed?
Mr Smith:Well Dave Richards coming up the following day to provide a cost estimate to the possible repair of the GF3.
Counsel: Was anything discussed about the power at the Galleria?
Mr Smith: I thought I would have - I don't know because I - I can't recall if I - if I mentioned that we had restored power.
Counsel:And what did [AB] say about the proposal that Dave Richards come out?
Mr Smith: Well, [AB] never said no. He said he was - he was comfortable with having Dave Richards come to provide a cost estimate.
Counsel:Did [AB] say anything about the - your - what you told him about the disintegrated fuse?
Mr Smith:No. Well, he said he had never seen it in his experience either. Did he say anything else to you during that conversation --- Not that I can recall, no.
Later in his evidence Mr Smith was asked what, if any, instructions or advice AB had given him on that call and the following exchange took place:
Mr Smith:We discussed the shatter (sic) fuse, we discussed the discolouration of the oil.
Counsel: When you say 'we discussed'.
Mr Smith;[AB].
Counsel:What did [AB] say?
Mr Smith:He said that he had never seen that in his experience in HV either.
Counsel:Yes, any instructions or advice?
Mr Smith:I believe he said, 'be careful'.
In these reasons, for the sake of brevity, I will refer to the third defendant/second third party, fourth defendant/third third party, and fifth defendant/fourth third party as 'the Galleria parties'.
The first defendant, second defendant and the Galleria parties complied with orders 9 to 11 above, although before the hearing on 18 February 2022, the first defendant and the Galleria parties amended the costs orders they sought.
The plaintiff's solicitors filed a minute of proposed orders on 17 December 2021, however, did not file submissions until 16 February 2022, two days before the hearing on 18 February 2022. On 18 February 2022 they filed a substituted minute of proposed orders as to costs, seeking additional costs orders, which was orally amended during the hearing on that day. They chose not to file any affidavit in support of their submissions.
The costs orders sought
Plaintiff's proposed orders
The plaintiff sought orders as follows:
1.The first defendant pay the plaintiff's costs and disbursements of both CIV 497 of 2017 and CIV 343 of 2018 on an indemnity basis; or alternatively
2.that pursuant to s. 280(2) of the Legal Profession Act 2008 ('the LPA'), the limits on costs in each of the applicable items in the 2016, 2018 and 2020 Legal Profession (Supreme and District Courts) (Contentious Business) costs determination, be removed.
3.In any event, the second defendant, or alternatively, the first defendant, pay the plaintiff's costs, including counsel fees, thrown away as a consequence of the adjournment of the first trial scheduled for February 2020.
4.The first defendant pay the plaintiff's counsel fees of the plaintiff's earlier counsel, Mr Hammond, fixed in the sum of $14,850, and Mr Higgs SC, fixed in the sum of $79,625.80.
5.The first defendant pay the plaintiff's expert fees of Mr Bunko, fixed in the sum of $22, 215.56.
6.To the extent not covered by order 13 made on 1 November 2021, the first defendant pay the costs of the running transcript of the trial.
7.The first defendant pay the cancellation fees of Dr Jeffries fixed in the sum of $1,516.19, Dr Cheng in the sum of $1,320 and the cancellation and travel fee of Exceed Consulting in the sum of $1,324.84.
8.The first defendant pay the plaintiff counsel's fees of Mr Droppert SC for attending on reserved judgment, including preparation, fixed in the sum of $7,700.
9.Further the plaintiff, seeks, if necessary, an order that the first defendant pay the plaintiff's cost of requiring second counsel at trial, including preparation for trial.
First defendant's proposed orders
The first defendant sought the following orders:
1.the second defendant pay the costs incurred by the first defendant (and the other parties) relating to:
(a)Costs reserved before Registrar Kingsley and Judge Lemonis on 9 January and 20 January 2020 respectively;
(b)The costs thrown away by reason of the vacating of the trial dates listed to commence on 3 February 2020;
(c)Costs incurred by the parties as a result of the issue agitated by the second defendant described as the 'earth fault' theory.
The first defendant submitted that the appropriate way to deal with the costs associated with the expert evidence was to order that the first defendant pay the second defendant 85% of its costs of trial and getting up, and that the second defendant pay 15% of the first defendant and the Galleria parties' costs of those items.
Second defendant's proposed orders
The second defendant sought the following orders:
1.The first defendant pay the second defendant's costs (including any reserved costs) up to 2 July 2020 on a party and party basis and from and including 3 July 2020 on an indemnity basis.
2.Alternatively to paragraph 1, the first defendant pay the second defendant's costs (including any reserved costs) up to 10 September 2020 on a party and party basis and from and including 11 September 2020 on an indemnity basis.
3.The first defendant pay the costs of the costs application.
Galleria Parties proposed orders
The Galleria parties sought orders in the following terms:
1.Further to Order 7 of the Orders [of 1 November 2021], the First Defendant pay the [Galleria parties'] costs of the Third Party proceedings, to be taxed, if not agreed, and without reference to the limits provided for in respect of the following items of the Legal Practitioners (Supreme Court) (Contentious Business) Reports and Determinations 2016 and 2018:
1.1.Item 5(b) - Pleadings in Third Party proceedings;
1.2.7(b) - Discovery.
2.Further to Order 8 of the Orders, the First Defendant pay the [Galleria parties'] costs of the consolidated Actions, to be taxed, if not agreed, and without reference to the limits provided for in respect of the following items of the Legal Practitioners (Supreme Court) (Contentious Business) Reports and Determinations 2016, 2018 and 2020:
2.1Item 3(b) - Defence; 2.2.
2.2Item 7(b) - Discovery; and
2.3.Item 17/18 - Preparation of Case.
3.Subject to order 4 below, the first defendant pay the [Galleria parties'] costs the subject of the reserved costs orders made on 26 September 2018, 20 December 2019, 9 January 2020, and 20 January 2020.
4.The first defendant, or alternatively, the second defendant pay the [Galleria parties'] costs thrown away by the vacation of the trial listed to commence on 3 February 2020, including any costs thrown away in relation to the hearings on 9 January 2020 and 20 January 2020.
Or in the alternative [to orders 1 and 2]
5.Further to Orders 7 and 8 of the Orders, the First Defendant pay the [Galleria parties'] costs of the Third Party proceedings and the [Galleria parties'] cost of the consolidated actions, as if the relevant limits provided within Table B of the Legal Practitioners (Supreme Court) (Contentious Business) Reports and Determinations 2016, 2018 and 2020 ('Scale') apply as follows:
3.1Item 5(b)(Pleadings in Third Party Proceedings) - three times the relevant Scale maxima 3.2;
3.2Item 3(b)(Defence) - three times the relevant Scale maxima; 3.3. Item 7 (b)(Discovery) - six times the relevant Scale maxima;
3.3Item 17/18/19(Preparation of Case) - six times the relevant Scale maxima.
[and]
6.The First Defendant pay the Defendants' costs of the Application, to be assessed if not agreed.
Issues to be determined
As a result of the various orders sought the following issues remain to be determined:
1.Should orders be made, as sought by the plaintiff:
(a)allowing for the costs of second counsel at trial;
(b)for payment by the first defendant of the specific amounts for counsel fees and cancellation fees referred to; and
(c)that the first defendant pay the costs of the running transcript at trial?
2.Should the plaintiff and the Galleria parties be granted a special costs order pursuant to s 280(2) of the Legal Profession Act 2008 (WA) (LPA) by ordering that their costs be taxed without reference to the limits provided for in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2016 and the Legal Practitioners (Supreme and District Courts) (Contentious Business) Determinations 2018 and 2020 (the Costs Determinations), either:
(a)Generally, as sought by the plaintiff;
(b)In relation to any of the following items, as sought by the Galleria parties;
(i)Item 3(b) - defence;
(ii)Item 5(b) - pleadings in the third party proceedings;
(iii)Item 7(b) - discovery;
(iv)Item 17/18 - preparation of case?
3.Should the first defendant be ordered to pay the costs the subject of reserved costs orders made on:
(a)26 September 2018; and
(b)20 December 2019?
4.Should the first defendant, or the second defendant, be ordered to pay any costs thrown away by the vacation of the trial listed to commence on 3 February 2020, including the costs of the hearings on 9 January 2020 and 20 January 2020?
5.Should the second defendant be ordered to pay the parties' costs incurred as a result of the 'earth fault' issue?
6.Should the first defendant be ordered to pay the plaintiff's costs of the consolidated action on an indemnity basis?
7.Should the first defendant be ordered to pay the second defendant's costs, including reserved costs, of the consolidated action on an indemnity basis from and including;
(a)3 July 2020; alternatively
(b)11 September 2020?
8.What costs orders should be made for payment of the costs of the applications for costs orders and the hearing on 18 February 2022?
Discretion to make costs orders generally
The power to make a costs order arises under s 64(1) and s 64(3) of the District Court of Western Australia Act 1969 (WA) (DCR) which provide that the costs of any action in the District Court may be paid or apportioned between the parties in such manner as a District Court judge directs, and that a District Court judge has the same power in relation to the payment of costs by any party as a judge of the Supreme Court.
The discretion to award costs is wide, however, it is not unfettered and must be exercised judicially: Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [48].
Special costs orders sought under s 280(2) of the Legal Profession Act
Generally
By s 280(2) of the LPA the court may raise or remove limits imposed by any costs determination if the court is of the opinion that the amount of costs allowable under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter.
The applicable principles were set out in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [12] ‑ [14] as follows:
12Before such a power will be exercised, the court must form an opinion that has two components. First, the court must form the view that the maximum allowable under the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant costs determination. Secondly, the court must also form the opinion that the inadequacy of the costs allowable under a costs determination arises because of the 'unusual difficulty, complexity or importance of the matter'. Issues of the kind which arise are addressed as matters of impression rather than as matters of detailed evaluation, precision or science.
13For the purposes of exercising the powers conferred by S. 280(2) of the Act, it will not ordinarily be necessary for the court to determine what amount should be allowed on taxation, but only whether there is a fairly arguable case that a greater amount should be allowed than that which is allowable under the relevant determination.
14A fairly arguable case to that effect will not be established merely because a party incurred greater costs than those allowable under the relevant determination. However, depending on the particular case and all the circumstances, the fact that a party has applied significantly greater legal resources to each step in the litigation than those for which allowance is made under items of the relevant determinations, when viewed in the context of the difficulty, complexity or importance of the matter, may sustain the conclusion that there is a fairly arguable case that each of the items identified as inadequate (and thereby the amount of costs allowable in respect of the matter is inadequate) because of the unusual difficulty, complexity or importance of the matter.
Galleria Parties
As the first defendant submitted, as a consequence of the declaration of this matter as a catastrophic personal injuries claim, the scale limits do not apply in relation to certain items of the Costs Determinations, and the taxing officer shall allow an amount which is reasonable in the circumstances. Accordingly, no special costs order is required in relation to:
(a)the plaintiff's costs associated with entry for trial and preparation of schedules of damages (item 16 in the 2016 Costs Determination, item 17 in the 2018 Costs Determination, and item 18 in the 2020 Costs Determination);
(b)the parties' costs for preparation of the case (item 17 in the 2016 Costs Determination, item 18 in the 2018 Costs Determination, and item 19 in the 2020 Costs Determination); and
(c)counsel fee on brief (item 20 in the 2016 Costs Determination, item 21 in the 2018 Costs Determination, and item 22 in the 2020 Costs Determination).
The Galleria parties' application for an increase in scale limits is supported by affidavit of Catherine Russo affirmed 17 December 2021.
In opposing the orders sought with respect to the remaining items, namely discovery and the pleadings, the first defendant relies on the failure to provide schedules of costs incurred in relation to discovery in the draft bill of costs attached to Ms Russo's affidavit. There is otherwise no challenge to the contents of that affidavit and, in particular, to the contents of par 11 of the affidavit, which sets out the basis upon which it is said that the action was of unusual, difficulty complexity and importance. Ms Russo also sets out, in par 11, the extent of discovery and describes the matters which are said to have contributed to the complexity of the pleadings.
I am satisfied, based on the contents of Ms Russo's affidavit, and from my own knowledge of the pleadings, that there is a fairly arguable case that the allowances in the 2016, 2018 and 2020 Costs Determinations will be inadequate in relation to items 3(b) (defence), 5(b) (the pleadings in the third-party proceedings), and 7(b) (discovery), in that the bill may properly tax at an amount greater than the limit.
I am also satisfied, based on the contents of Ms Russo's affidavit and from my own knowledge, as the presiding judge, that the inadequacy arises because of the unusual difficulty and complexity of the action, and its importance, particularly in relation to claims that were following the determination of the consolidated action.
Accordingly, I will make the special costs orders sought by the Galleria parties in relation to items 3(b), 5(b), and 7(b).
Plaintiff
The plaintiff's claim for special costs orders under s 280(2) was unsupported by affidavit evidence. The plaintiff submitted that it was not necessary to file an affidavit because, as a trial judge, I can rely on my own knowledge of the unusual difficulty and complexity of the litigation. That much may be accepted, however it does not resolve the issue that there is no evidence before me of costs actually incurred by the plaintiff in relation to the items of work where the removal of scale limits was sought, which were, essentially, every applicable item.
The plaintiff's solicitors submitted that, if an affidavit was required, they could rely on the affidavit filed in support of the Galleria parties' application. However, that application goes only to the Galleria parties' costs of discovery and pleading.
The issue of the complexity of the pleadings is one that, in my view, I can determine from my own knowledge. I am prepared to order the removal of the limit on that item.
However, I have no knowledge of the issues relating to discovery as far as that concerned the plaintiff. While the bundles of documents prepared for trial ran to 10 volumes, I have no indication what number were discovered by the plaintiff, and my impression of the documents in those bundles is that the majority were derived from other parties.
Accordingly, I am not prepared to lift the limit in relation to the discovery item so far as that concerns the plaintiff.
Neither am I prepared to lift the limits on any of the other numerous items referred to by the plaintiff in its submissions which were unsupported by any affidavit evidence, noting that the catastrophic injuries declaration has the effect of raising the limits in relation to the major items of entry for trial, preparation of case, and trial, in any event.
The requirement for a specific order for second counsel was dispensed with by cl 5(1) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 and no order is necessary.
With respect to the specific amounts claimed by the plaintiff for the services of counsel and expert fees, including cancellation fees, this is a matter for determination at taxation, rather than by way of an order of the court.
With respect to the order sought by the plaintiff that the first defendant pay the costs of the running transcript, on 14 October 2020, during the course of the trial, and with the consent of the parties, I ordered that a copy of the transcript be provided to the plaintiff, and payment thereof be deferred until 14 days after judgment or further order. The plaintiff's solicitors were unable to identify whether or not the plaintiff had paid the cost of the transcript by 15 November 2021 as that order apparently required.
It is appropriate that the first defendant bear the plaintiff's costs of the transcript, either by reimbursement to the plaintiff, if the plaintiff has paid those costs, after the plaintiff's bill of costs has been taxed if not agreed, or by direct payment to the District Court registry, if the plaintiff has not paid that cost.
However, given the uncertainty of the position, I do not consider it is appropriate that an order be made, in addition to order 13 of the orders made on 1 November 2020, but that the plaintiff should be given liberty to apply in relation to that order.
Indemnity costs
Generally
Indemnity costs orders are exceptional and will not be made unless some special or unusual feature of the case warrants it: Yara Australia Pty Ltd v Oswal [2012] WASCA 264 [33] (Murphy JA). In Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2004) 28 WAR 95, 101, Pullin J said that an indemnity costs order is a mark of disapproval on the part of the court about the improper or unreasonable conduct of litigation. Circumstances in which indemnity costs may be awarded include where the party pursues a hopeless case, where, properly advised, the party should have known there was no chance of success, and where there is an unreasonable refusal to accept an offer of compromise: see Flotilla Nominees (97).
With respect to the principles relating to the award of indemnity costs in light of Calderbank offers the court in Strzelecki Holdings [82] ‑ [83] said:
82… One well recognised basis for an award of indemnity costs is that the unsuccessful party unreasonably rejected a Calderbank offer. The party who makes a Calderbank offer that is rejected bears the onus of satisfying the court that it should make an award of indemnity costs in their favour.
83The mere fact that the recipient of a Calderbank offer is ultimately worse off than they would have been had the offer been accepted, does not mean that its rejection was unreasonable. Instead, in determining whether the rejection of the offer was unreasonable, all relevant facts and circumstances must be considered. Ordinarily, regard should be had to at least the stage of the proceeding at which the offer was received; the time allowed to the offeree to consider the offer; the extent of the compromise offered; the offerees prospects of success, assessed as at the date of the offer (and not with the benefit of hindsight as to the result of the proceedings); the clarity with which the terms of the offer were expressed; and whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejection it.
The plaintiff's application for indemnity costs
The basis of the plaintiff's claim for indemnity costs was, apparently, that the first defendant had no arguable defence to the plaintiff's action against it, and that the first defendant made no offer to settle to the plaintiff.
As I have already noted no affidavit was filed in support of the plaintiff's contentions. The plaintiff's counsel referred in submissions to the first defendant's conduct in defending the claim, and in allegedly failing to attempt to negotiate a settlement with the plaintiff (although the plaintiff's counsel did not suggest that the first defendant had refused any offer made by the plaintiff). As was conceded, those submissions did not amount to admissible evidence of any improper conduct on the part of the first defendant.
It cannot be said that merely because a finding is made against a party, that party's case was hopeless, or that the pursuit of the litigation was unreasonable or improper. If that were the case, indemnity costs would be the rule rather than the exception.
In any event, the plaintiff was not entirely successful as against the first defendant. The plaintiff claimed quantum in an amount of approximately $2,889,000 and settled at the start of the trial for an amount over $1 million less than that claim. The first defendant was also held liable for only 90% of the agreed quantum.
Accordingly, the plaintiff's application for indemnity costs against the first defendant is dismissed.
The second defendant's application for indemnity costs
The second defendant's application for indemnity costs was supported by the affidavit of Bronwyn Nevin affirmed on 17 December 2021. This evidences that the second defendant made two offers of settlement, in letters dated 23 June and 3 September 2020, respectively. The offers were on the same terms save for the amount offered to the plaintiff as a contribution to his damages claim, and to costs. In the letter of 23 June 2020, the second defendant offered to pay the plaintiff $270,000 as a contribution to damages, and $30,000 to the plaintiff's costs of the action. In the letter of 3 September 2020, these amounts were increased to $300,000 and $50,000 respectively.
Obviously, as the second defendant was found not to be liable to the plaintiff, and not liable to indemnify the first defendant for its liability to the plaintiff, the first defendant may be said to be worse off by reason of its failure to accept either offer. The issue is whether the second defendant has satisfied me on the balance of probabilities that the first defendant's refusal to accept either offer was unreasonable.
The offer in the letter dated 23 June 2020 was open until 3 July 2020, and the offer in the letter dated 3 September 2020 was open until 11 September 2020. There is no dispute in either case that the first defendant was given a reasonable time in which to consider the offers, particularly given the proximity to the trial, which commenced on 12 October 2020.
The offers represented a small, but not insignificant, proportion of the plaintiff's total claim, which prior to the settlement of quantum was $2,889,000. The first offer was therefore approximately 9% of the amount claimed and the second offer was 10%. It may be assumed that the first defendant would have been aware that the offers were likely to represent a higher proportion of the final quantum, whether that was agreed (as occurred) or determined by the court.
The second defendant indicated in the letter of 23 June 2020 that it estimated that the second defendant's costs to that date would be taxed at $220,000. The offer was therefore 14% of that estimate, again a small, but not insignificant, proportion of the likely costs.
However, the offer set out in each letter was a joint offer, to settle both the plaintiff's and the first defendant's claims against the second defendant. Each expressly stated that the offer must be accepted by both the plaintiff and the first defendant.
The second defendant submitted that it was, in fact, open to the first defendant to unilaterally accept the offers, relying on a concluding sentence in each letter which read that 'this offer is open for the plaintiff and the first defendant both to accept by written notice, collectively or individually…'. However, the reference to the possibility of the first defendant accepting the offer 'individually' is a reference to the method by which the parties' acceptance of the offer could be conveyed to the second defendant, rather than opening the offer to only one or the other, given the word 'both' and the concluding words of the sentence, '… but acceptance must be notified by or for both parties'.
On a plain reading of the terms of each offer, it was not open to the first defendant to accept the offer if the plaintiff did not. It is not in dispute that the plaintiff did not accept either offer.
The terms of the offers also required the first defendant to release the second defendant from 'any and all future liability', which as the first defendant argued, may have precluded the first defendant from raising claim of contributory negligence by Mr Richards, in his own claim for damages suffered as a result of the explosion.
In making each offer the second defendant relied on facts set out in its open letter dated 3 June 2020 to the Galleria parties, and copied to the plaintiff and the first defendant, by reason of which the second defendant said that the claim against the second defendant was doomed to fail. The second defendant submitted that, in light of these facts, it was unreasonable for the first defendant not to accept either offer. However, many of the matters set out in the letter of 3 June 2020 do not accord with the findings ultimately made after trial.
Judged at the time the offers were made, the first defendant's prospects of success at trial depended on the outcome of a contest between the evidence of the plaintiff and Mr Richards. As the first defendant says, the plaintiff was not the first defendant's witness and there were significant differences in their recollection of events.
Finally, neither offer was stated to be on the basis that the second defendant would claim indemnity costs if the offer was not accepted and the second defendant was successful.
By reason of these matters, the second defendant has not satisfied me on the balance of probabilities that it was unreasonable for the first defendant not to accept either offer in all the relevant circumstances then known to the first defendant. Accordingly, the second defendant's claim for indemnity costs against the first defendant is dismissed.
The first defendant's application for costs against the second defendant
Generally
The starting point is that the court will usually order that the successful party to the action recover their costs: Rules of the Supreme Court 1971 (WA) (RSC) r 66(1). The unsuccessful party must satisfy the court that there is good reason why it should not pay the costs of a successful party: Strzelecki Holdings [49].
The court may, in an appropriate case, depart from the general rule where the otherwise successful party has failed on a specific issue in the proceedings. In Strzelecki Holdings [50] - [52] the Court outlined the applicable principles as follows:
50What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues. The exercise of the discretion in that way is recognised by a number of rules in the RSC, together with the practice of the Court, and authority. So, for example, if the Court is of the opinion that the conduct of a successful party - either before or after the commencement of the litigation - has resulted in costs being unnecessarily or unreasonably incurred, the court may deprive that party of costs, either wholly or in part, and it may further order that party to pay the costs of an unsuccessful party, either wholly or in part.
51Under O 66 r (1)(3) RSC, where a party, though generally successful in an action, has, by the introduction of some issue or issues on which it has failed, increased the costs, the court may order such party to pay the costs of such issue or issues. It is well recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course for at least two reasons. First it is often the case that a successful party will not succeed on every issue raised. Secondly, to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed and which added to the costs of the proceedings in a significant and readily discernible way. Furthermore while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case.
52Where the Court decides, in the exercise of its discretion, to modify the usual costs order to reflect the limited success of the successful party, that power will be exercised broadly, and as a matter of impression, and without any attempt at mathematical precision (which is likely to prove illusory in any event). That approach reflects the fact that it may be difficult to separate the factual and evidentiary substratum of different issues, the fact that some issues are more important than others, and the fact that some issues are subsidiary to others.
(Footnotes omitted)
Consideration of the first defendant's application
The 'earth fault' issue concerned the cause of the disintegration of the fuse in the GF3, and the role of the Merlin Gerin circuit breaker in preventing that disintegration, and was a discrete issue within the trial.
It was also an issue which took up a significant portion of the time at trial. It was my impression that this portion was at least 10%. Whilst I accept that this is not a matter that is amenable to precise calculation of the minutes spent at trial on the issue, my view finds support in the calculations provided in the first defendant's submissions filed on 4 February 2022 which calculated that the time taken by witnesses and in submissions at trial on this issue amounted to approximately 15% of the total trial. That calculation also confirms my impression that this was an issue as between the first and second defendants, with very limited separate engagement by the other parties.
In my view, at least up until the time of trial, it was not unreasonable for the second defendant to rely on the evidence of Professor Blackburn in relation to this issue. However, it became apparent in the course of cross‑examination of the plaintiff's witnesses by counsel for second defendant that documents relied on by Professor Blackburn in forming his opinion did not relate to the equipment at the Galleria. The second defendant's counsel then sought further opinion from Professor Blackburn and his evidence was led on that opinion.
Ultimately it was accepted that Professor Blackburn's opinion was only relevant if the fault that occurred in Transformer 1 was an earth fault. My findings in relation to that are set out in Smith v High Energy Services Pty Ltd [2021] WADC 101 [377] - [383]. In summary, however, Professor Blackburn attempted to fit the evidence to his original assumption that the fault was an earth fault, despite the evidence to the contrary, which evidence had not been challenged by the second defendant's counsel during cross‑examination of the plaintiff's witnesses.
The second defendant's representatives had the opportunity to reduce the length and complexity of the trial by not calling Professor Blackburn and by conceding that the earth fault issue was no longer relevant, and, in the circumstances, ought to have done so.
Accordingly, I consider it is appropriate that the costs payable to the second defendant by the first defendant under items 22(c) and (d) (counsel fees for the second and subsequent day of trial), 22(e) and (f) (instructing solicitors and others attending trial) and 22(g) (preparation of written closing submissions) be reduced by 10%, and that the second defendant not be entitled to recover the costs of Professor Blackburn giving evidence at trial. I also consider that it is appropriate that the first defendant be able to set off an amount equal to 10% of its costs calculated under those items against the amount it would otherwise be required to pay in costs to the second defendant.
However, as this was largely an issue between the first and second defendants, I am not minded to further alter the costs orders to order the second defendant pay any part of the costs of the plaintiff and the Galleria parties.
The costs thrown away by the adjourned trial
The trial was originally listed for four weeks commencing on 3 February 2020. Those dates were vacated by order of his Honour, Judge Lemonis on 20 January 2020, two weeks before the trial was due to start, in circumstances where the second defendant had, in late December 2019, foreshadowed adducing further expert evidence, from Professor Blackburn.
In light of the apparent issues with ongoing discovery of documents, I cannot find with any degree of confidence that the second defendant could, or should, have obtained Professor Blackburn's evidence much earlier than it did, and sufficiently early to avoid vacating the trial dates.
In addition, my overall impression, on reading the transcripts of the hearings on 9 and 20 January 2020, and the affidavits filed in this application, is that none of the parties were actually ready to proceed to a trial commencing on 3 February, although that may, to some extent, have been because the pre-trial preparation had been stalled by the second defendant's disclosure of Professor Blackburn's report on 23 December 2019.
There was also no evidence before me that any amount of work was genuinely wasted, in the sense that preparatory work was done that was no longer of any utility, as was required by Martin J in Saraceni v Mentha [No 2] [2021] WASC 192 (S) [9].
Neither, in my view, is it likely that there would have been significant costs thrown away, given the issue arose, and the dates were vacated, some weeks before the trial was scheduled to start, and the effect of the application to adduce the expert evidence was to add an issue, rather than effect any change to an existing issue.
In all the circumstances, in my view, the applications by the plaintiff, the first defendant and the Galleria parties, that the second defendant pay costs thrown away by the vacating of the trial dates, should be dismissed, as should the Galleria parties' application (in the alternative), that the first defendant pay those costs.
Reserved costs
Having reviewed the transcripts of both hearings on 9 and 20 January 2020, those hearings were not limited to the issue of the second defendant's application to adduce additional expert evidence, but rather dealt with a range of issues between the parties. They were, in my view, necessary directions hearings.
As to the reserved costs orders made on 26 September 2018 and 20 December 2019, these were also directions hearings in the ordinary course of the proceedings, and the first defendant's counsel conceded that, if that were the case, costs should follow the event.
As such, I consider that the appropriate costs orders in each case is that costs be in the cause.
Costs of the application
In my view, in the circumstances, the appropriate orders for the various applications for costs is that:
(a)The first defendant pay the third, fourth and fifth defendants'/second, third and fourth third parties' costs of the application for costs, including the hearing on 18 February 2022, to be taxed if not agreed; and
(b)Otherwise, there be no order for costs.
Conclusion
For the reasons I have given I will order:
1.Further to orders 7 and 8 of the orders made on 1 November 2021:
(a)the second defendant's entitlement to payment by the first defendant of the costs of the hearing pursuant to item 22(c), (d), (e), (f) and (g) of the Legal Practitioners (Supreme and District Courts) (Contentious Business) Determination 2020 be reduced by 10%;
(b)the first defendant is entitled to set off against the amount it is required to pay to the second defendants pursuant to orders 8 and 9 of the orders of 1 November 2020 and order 1(a) above, an amount equal to 10% of the first defendant's costs of the hearing assessed pursuant to item 22(c), (d), (e), (f) and (g) of the Legal Practitioners (Supreme and District Courts) (Contentious Business) Determination 2020.
2.Further to order 6 of the orders made on 1 November 2021 the first defendant pay the plaintiff's costs of the consolidated Actions, to be taxed, if not agreed, and without reference to the limits provided for in respect of the following item of the Legal Practitioners (Supreme Court) (Contentious Business) Determinations 2016, 2018 and 2020:
(a)item 1(b) - statement of claim.
3.Further to order 7 of the orders made on 1 November 2021 the first defendant pay the second, third and fourth third party's costs of the third-party proceedings, to be taxed, if not agreed, and without reference to the limits provided for in respect of the following items of the Legal Practitioners (Supreme Court) (Contentious Business) Reports and Determinations 2016, 2018 and 2020:
(a)item 5(b) - pleadings in third-party proceedings;
(b)item 7(b) - discovery.
4.Further to order 8 of the orders made on 1 November 2021 the first defendant pay the third, fourth and fifth defendants' costs of the consolidated Actions, to be taxed, if not agreed, and without reference to the limits provided for in respect of the following items of the Legal Practitioners (Supreme Court) (Contentious Business) Reports and Determinations 2016, 2018 and 2020:
(a)item 3(b) - defence;
(b)item 7(b) - discovery.
5.With respect to the reserved costs of the hearings on 26 September 2018, 20 December 2019, and 9 and 20 January 2020, costs be in the cause.
6.The plaintiff have liberty to apply in relation to the payment of the costs of the running transcript by the first defendant.
7.The first defendant pay the third, fourth and fifth defendants/second, third and fourth third parties costs of the application for costs orders made pursuant to order 9 of the orders made on 1 November 2021, including the costs of the attendance on 18 February 2022, to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Vernon
13 APRIL 2022
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