State Rail Authority of NSW v Watkins

[2001] NSWCA 405

CITATION:	STATE RAIL AUTHORITY OF NSW v WATKINS [2001] NSWCA 405
FILE NUMBER(S):	CA 40846/00
HEARING DATE(S):	5 September 2001
JUDGMENT DATE:	16 November 2001
PARTIES :	STATE RAIL AUTHORITY OF NSW v Richard Stanley William WATKINS
JUDGMENT OF:	Mason P at 1; Heydon JA at 62; Sperling J at 63

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 1749/95
LOWER COURT JUDICIAL OFFICER :	Dent DCJ

COUNSEL:	Appellant: P G Curtin Respondent: D O'Dowd
SOLICITORS:	Appellant: Phillips Fox Respondent: Harris & Co
CATCHWORDS:	Negligence - duty of care - occupier's liability - respondent plumber injured through electric shock when aluminium ladder came into contact with overhead electrified power lines - respondent an employee of subcontractor working under supervision of construction manager - railway staff had no role in assigning or overseeing tasks at work site - construction manager able to arrange line closure if necessary - whether SRA had non-delegable duty stemming from control of station - challenges to trial judge's findings - scope of SRA's duty - Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 - no breach of any duty of care. (D)
CASES CITED:	Ex Parte Professional Engineers Association (1959) 107 CLR 208 David Jones Ltd v Bates [2001] NSWCA 233 Derrick v Cheung [2001] HCA 48 Kondis v State Transport Authority (1984) 154 CLR 672 Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Phillis v Daly (1988) 15 NSWLR 65
DECISION:	See par 61

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40846/00
DC 1749/95

MASON P

HEYDON JA

SPERLING J

Friday 16 November 2001

STATE RAIL AUTHORITY OF NEW SOUTH WALES v
Richard Stanley William WATKINS
JUDGMENT

On 4 April 1990 at about 2.30pm the respondent was severely injured through electric shock when an aluminium ladder he was using came in contact with overhead electrified power lines. He was working as a plumber at the Yagoona railway station. Major refurbishment was being done by Abigroup Contractors Pty Ltd as construction manager and several minor contractors. Abigroup’s role was the administration of the contract and coordination of all contractors on site. One of the contractors was a plumbing firm known as Sydney Plumbing. The respondent worked for that firm and it would appear that he was the senior employee on site.

2 SRA’s case was and is that the respondent was not supposed to be on the track at the time; and that if this was the only way of getting at the work site, he could and should have organised through his employer and/or Abigroup for the rail line to be shut down, thereby removing any risk of electrocution or collision by trains.

3 The respondent sued for damages in the District Court. He joined Mr A G Jones as the first defendant, T J Jones Plumbing Pty Ltd as the second defendant and the State Rail Authority of New South Wales as the third defendant.

4 The respondent pleaded that he was employed by the first defendant, alternatively by the second defendant and that the injuries suffered were due to the employer's breach of duty of care based on contract and tort. There is, however, no evidence that the statement of claim was served on those defendants. They were not represented at trial and no relief was sought against them. (It appears from the evidence that the owner of Sydney Plumbing was a company called Sandrock Pty Ltd.)

5 The respondent pleaded against the third defendant (hereafter SRA) that it was the occupier of the premises and owed a duty to use reasonable care to ensure the safety of the premises (Red 11-12). There were also statutory counts under the Construction Safety Act 1912, but these were not pressed.

6 SRA denied liability and also pleaded contributory negligence and voluntary assumption of risk.

7 The case was tried before Judge Dent QC. The learned judge found that SRA had contracted with Sydney Plumbing to do a portion of the upgrading work at the station that included establishment of a toilet and ablutions facility in a building set above the railway tracks. The tracks passed under the Hume Highway and the particular building was at highway level.

8 In the month or so leading up to the accident the respondent used to park at an adjacent SRA carpark and approach the building site by crossing the railway tracks. His general presence was known to the station master, with whom he exchanged pleasantries from time to time, and other staff involved in the day to day operation of the suburban railway station.

9 The accident occurred when the respondent had to obtain access beneath the floor of the toilet and ablution facility. It was a small job of nipping off a pipe, but the respondent had to reach about 5 m above the track level, although the pipe was not directly above the tracks.

10 The respondent contacted Sydney Plumbing’s warehousing facilities for procurement of a wooden ladder, but none was available. Then, with the assistance of a labourer, he carried an aluminium ladder from his employer's truck in the carpark beyond the far end of the platform, across the railway lines adjacent to the platform and up to the site near or beyond the far end of the platform. It was pouring rain at the time.

11 Judge Dent found that it was:

... a task that had to be done then and there, as it were, because the programme of the job had other tradesmen ready to come in and perform their work within the ablutions block, and this task had to be performed before they entered into that part of the building program. The immediately obvious way of performing the task was to place a ladder from the ground up to the level of the floor so that the plaintiff could reach the point where this had to be done. This inevitably involved the placing a ladder close to the railway tracks and close to the overhead electrified conductors which powered the third defendant’s train motors.

12 The respondent elevated the ladder by extension, climbed up, did the brief job and climbed down. He and his attendant labourer then attempted to move the ladder away from the work site and in the process it toppled because it was long and heavy. It touched the overhead conduction lines and the respondent was electrocuted.

13 Judge Dent found a verdict for the respondent against SRA without reduction for contributory negligence. He also found absence of negligence on the part of the respondent’s employer (in the context of damages assessment: cf Workers Compensation Act 1987, s151Z(2)).

14 SRA's duty of care was found to stem from its position as “occupier and conductor of the railway” (Red 38), its inferred knowledge of “the activity of the plaintiff and his fellow worker” (Red 34) and its awareness of the dangers involved. The “activity” appears to have been the carrying of the aluminium ladder up to the position where the accident occurred. The knowledge of SRA employees was inferred from the evidence as to the visibility of the respondent's activities (which in turn were inferred to have been according to the building plans) and the absence of any rebutting evidence from SRA station employees (none were called).

15 Judge Dent held that the circumstances gave rise to a non-delegable duty to ensure that reasonable care was taken for the respondent's safety. He cited Burnie Port Authority Pty Ltd v General Jones Pty Ltd (1994) 179 CLR 520 at 550ff. He held that, because it was a duty of such nature, SRA could not abrogate its responsibility to the respondent by the appointment of Abigroup as contract manager.

16 The judge held that SRA had breached this duty.

Breach of duty by sra challenged

17 In the appeal, SRA’s principal challenge was to the finding of breach of duty of care as “occupier and conductor of the railway”.

18 As I read the judgment, the mere presence of electrified wires high above the tracks was not itself said to be a breach of the duty owed to the respondent. Nor could it have been. SRA correctly submits that its duty of care as an occupier did not make it an insurer liable for any loss stemming from the dangerous condition of any part of its land. Many sites are dangerous in places. Virtually everyone knows that the overhead wires above railway tracks are dangerous. More to the point, the respondent knew this. And he also knew that using an aluminium ladder added to the risk of serious injury.

19 Judge Dent held that it was manifestly clear that the task performed by the respondent could only be performed in reasonable safety at a time when all power was shut off to the overhead wires (Red 36K, 32K). This proposition was embraced by both parties to the appeal.

20 What then was the activity or inactivity on SRA’s part that constituted the fault on its part? It was held to be permitting the respondent to embark on the particular, hazardous activity involving the aluminium ladder.

21 At the hearing of the appeal, the respondent submitted that SRA had a non-delegable duty stemming from its control of the station that it occupied. The respondent’s counsel Mr O’Dowd put it this way (Tr p40):

… in this particular case they reserved unto themselves sufficient control, in fact they retained really absolute control of the station, such that they must be said to retain their duty, to still have their duty. They were there. They elected to continue to operate this train station, an inherently hazardous activity, during the course of these building works…. Their duty pertained throughout the entire period.

22 In response to a request to state “what was the duty to do?” the respondent’s counsel submitted that SRA should have stopped the respondent from using the tracks. Counsel developed the submission thus: SRA remained in occupation and control of a functioning railway system. It knew that contractors and their employees would be moving up and down on the track from time to time. It knew that there would be times when arrangements would have to be made through Abigroup for the power to be closed off, but this latter knowledge really emphasized the fact that SRA was on notice that workers would be in need of protection in this manner from time to time. To that extent there remained a non-delegable duty to ensure that workers would not come to harm through want of reasonable care. That duty was non-delegable in the sense that SRA could not slough it off by pointing to the position of Abigroup as contract manager. In response to the suggestion that this duty may have been more relevant had the respondent been struck by a passing train, counsel submitted that there was a separate act of negligence that was causative of loss. He pointed to the evidence of the respondent to the effect that he would not have continued walking down the track armed with a ladder on the day of the accident had the station master come across to him and warned or reminded him of the danger.

23 It was submitted that SRA was in breach because it had not provided a full time site foreman who could have prevented the respondent from erecting his aluminium ladder (Tr pp47-8). I regard this as fanciful.

24 Alternatively, the respondent said that SRA had actual notice of the hazardous activity that the respondent had embarked upon on the afternoon in question and that it failed to warn the respondent or prevent him erecting the ladder. Reliance was placed upon the following passage (Red 33-9 emphasis added. The paragraphs are lettered for ease of future reference):

(a) On the day of the subject accident the third defendant was the occupier with full control over the site where the plaintiff met his accident. The plaintiff was at that site and around and about it generally with the knowledge and approval of the third defendant performing tasks for the benefit of the third defendant. Given the uncontested fact that he and a fellow worker had crossed the defendant’s railway lines at the Yagoona Railway Station carrying an aluminium ladder and then erected it in a position quite close to the platform of the railway station a rebuttable inference arises that servants of the third defendant working at the platform of the station were aware of the activity in which the plaintiff and his fellow worker were engaged. The third defendant has called no evidence to rebut that inference, and to my mind it becomes an inferential finding of fact. Each of the activities above described were fraught with danger to the plaintiff. The servants of the defendant must have also been aware that this practice of crossing the railway tracks to and from the parking area to the various work situations was part of the circumstances in which the contracted out work was being performed up to the time when the plaintiff met with the subject accident….
(b) It is beyond dispute, that as between the third defendant and the plaintiff the defendant was the occupier of the site where the accident occurred, and the plaintiff was a lawful entrant upon the site. The site was one of considerable potential danger to a person such as the plaintiff and the performance of the work at the site, desired by the third defendant, inflicted the third defendant with knowledge that a person such as the plaintiff would have to be there to perform the work desired. This knowledge is inferred because the plaintiff was performing work to plans not in evidence that would require a person such as the plaintiff to work at the position that the plaintiff worked at on the day of the accident. It was within the third defendant’s immediate experience that work in that elevated position beneath the overhead structures had been sought to be performed, a matter of days it would appear, before the subject accident, in the hours of darkness when a line closure which was an ineffective one had purported to be put in place to permit the work to be done in the elevated position beneath the floor of the over-rail structure. As this was a position at which the person such as the plaintiff was expected to perform work the third defendant was subject to a duty to take reasonable care that the premises at which the work would be performed were as safe for that purpose, as reasonable skill and care could render them. Because the place on the premises at which the work would need to be performed was perilously close to the rail tracks and overhead uninsulated electrical conductors the defendant in my view was subject to the personal duty of care spoken of by the majority in Burnie Port Authority v General Jones Pty Limited 179 CLR 520 at pages 550 and following.
(c) Put shortly the circumstances which existed between the third defendant and the plaintiff gave rise to a duty of care of a special and “more stringent” kind, namely a “duty to ensure that reasonable care is taken”. I turn to the issue of whether or not the plaintiff has discharged the onus of establishing that in the circumstances the defendant failed in the performance of the duty as described above. In my view on the facts established in this case and the inferences properly to be drawn from them, the plaintiff has discharged that burden of proof. The third defendant as it appears from the evidence sought to place the responsibility of work safety at its premises upon Abigroup Contractors Pty Limited. It of course did not empower Abigroup Contractors Pty Limited with the privilege of isolating power from the overhead power lines and closing the track to rail traffic at will. Abigroup Contractors Pty Limited for its part must be taken to have known that a person such as the plaintiff would have to perform work on the job in the position that the plaintiff actually performed it, as the fair inference from the evidence is that plumbing work had to be done beneath the floor of the refurbished structure above the railway tracks. In this regard it shared the same knowledge of what the work required as did the third defendant.
(d) The evidence makes it manifestly clear that this work could only be performed in reasonable safety at a time when all power was shut off to overhead wires and the train line itself was closed to rail traffic. As far as the evidence stands before me, such a shutdown had only occurred on the one prior occasion and that shutdown was the one where the plaintiff and others erected a scaffold to the working height beneath the floor for plumbing purposes, to discover to their horror that the rail line itself was not shut down and a train was proceeding along it.
(e) There is uncontested evidence from the plaintiff that he had made a suggestion or request to the Station Master at one stage during the job that the lines should be closed and the power shut off, and the Station Master had told him there was no way that this could be done. In this case the third defendant has played its cards close to its chest and the most I can infer from the evidence that it presented, is that Mr John Harris then of Abigroup Contractors Pty Limited, a building supervisor, attended the Yagoona work site twice a day. He was in fact supervising about five projects for Abigroup Contractors Pty Limited and the third defendant at the time.
(f) Much has been made of the fact in the case that the plaintiff was using an aluminium ladder as opposed to a wooden ladder in performing the task that he was effectively required to perform to permit other trades to proceed with their work. This in my judgment is a red herring. The defendant was burdened by a positive duty to prevent the plaintiff or anybody else working in the position that he had to work at a time when in particular current was running along the conductors that power the third defendant's trains. Building work has to proceed to a program organised and dictated by others, and the intention of all concerned in its performance is that it be done efficiently and profitably, in the wider sense of the word. It would have been unrealistic in the given circumstances to expect that Mr Watkins working within the building program, would have walked off the job until such time as a total shut down of the line could be achieved, so that he could perform a five minute job on the piping under the floor of the refurbished structure.
(g) Because of the gravity of the danger to which the task exposed him, the third defendant was under a positive duty to prevent him getting into the position where he was at the time this accident occurred. This was not an ordinary building job where possession of the site was surrendered to a contract builder.
(h) One of the few cards played by the third defendant in the trial was Exhibit 2 which were instructions to subcontractors an other similar card is Exhibit 3, these represent an expectation of the third defendant as what ought to have been achieved by Abigroup Contractors Pty Limited as Construction Manager of the overall refurbishment undertaking and implicitly indicate that the Contracts Manager was empowered to allow subcontractors employees to be upon the railway tracks and to work in the vicinity of the electrical conductors powering the third defendant’s trains.
(i) The activity conducted by the plaintiff which led to his injury was an activity in my judgment, that was quite foreseeable to an occupier in the position of the third defendant and to a Contract Manager in the position of Abigroup Contractors Pty Limited. Neither the third defendant or Abigroup Contractors Pty Limited maintained the necessary level of works overseeing to prevent this situation arising. It is the plaintiff submission that the Station Master at Yagoona was the delegate of the third defendant, whose duty it was to provide that level of oversight. The regulations in evidence do not convince me that that is so, but this is not the point; the responsibility of the third defendant as occupier and conductor of the railway undertaking was to so provide, and this it failed to do. I have no knowledge of the precise obligations of the Abigroup Contractors Pty Limited in its contract with the third defendant. That contract is not in evidence. If it was Abigroup’s contractual duty to provide the level of oversight dictated by the circumstances, it clearly failed to perform that duty. This however is little to point. It was the third defendant’s personal obligation to the plaintiff, as an entrant to, to provide and maintain the necessary degree of oversight and the circumstances establish to my satisfaction that it failed in the discharge of that aspect of its overall duty to the plaintiff in the circumstances. The third defendant is liable in negligence.

25 The reasoning in this lengthy passage moves back and forth between duty and breach. Sometimes it is unclear whether the judge is addressing one, other or both issues. The sentence first emphasized in paragraph (c) suggests that the decision on breach is to be found in what follows, but the earlier paragraphs appear to go beyond duty.

26 The ultimate conclusion turns upon some or all of the following factual conclusions:

(a) the inference that the respondent was “performing work to plans not in evidence” when he approached the task by climbing up above the tracks using an extension ladder (b, c, h);

(b) the conclusion that the respondent was under pressure to do the job this way on the day in question, and without the opportunity to wait for an arranged line closure (e,f);

(c) the statement that the uncontested evidence showed that the Station Master had refused the respondent’s request to shut off the power (e);

(c) the “inferential finding of fact” that “servants of [SRA] working at the platform of the station were aware of the activity [in which] the plaintiff and his fellow worker were engaged” (a) .

27 These particular findings were challenged by SRA.

28 It is convenient to examine the particular challenges before stepping back to survey the general issue.

Inference that the respondent was “performing work to plans not in evidence” when he approached the task by climbing up above the tracks using an extension ladder

29 In my view this inference was not open.

30 No plans were tendered by the respondent. More to the point, the respondent’s own evidence was to the effect that the alternatives to doing what he did as regards closing off the pipe would have been to have “come from the top or just left it”. He also agreed that the job could have been left undone and that he could have inquired about waiting until the next night time line closure (Black 106-7).

Conclusion that the respondent was under pressure to do the job this way on the day in question, and without the opportunity to wait for an arranged line closure

31 This finding appears from pars (e) and (f) of the long passage set out above. In addition, the judge had earlier said that what the respondent did was:

... a task that had to be done then and there, as it were, because the programme of the job had other tradesmen ready to come in and perform their work within the ablutions block, and this task had to be performed before they entered into that part of the building program.

32 The judge further held that:

It was not a job the plaintiff wanted to do. He was highly apprehensive as he was in a “trapped situation” as he saw it.

33 SRA points to the respondent’s answers in cross-examination where he conceded that the alternatives to doing what he did as regards closing off the pipe would have been to have “come from the top or just left it”. He also agreed that the job could have been left undone and that he could have inquired about waiting until the next night time line closure.

34 In my view, these answers went no further than conceding the options that were logically available, without regard to the critical issue of practical necessity (which was not factored into the cross-examination). One is reminded of the remarks of Windeyer J in Ex parte Professional Engineers Association (1959) 107 CLR 208 at 272:

Counsel for the States started with the proposition that disputes are either industrial or not industrial. That is logically incontestable: and, as was said by counsel in Repton v Hodgson [(1850) 3 HLC 72 at pp79,80] in a sentence which Jordan CJ brought to light in an essay, “Like Sinclair’s well-known division of sleeping into two sorts, namely, sleeping with or sleeping without a night cap, it would seem to exhaust the subject”.

35 No one ever suggested an absolute necessity for the job to be done by the respondent when he did it and in the manner that he did it. From a logical point of view the options of doing nothing, using alternative means of access or alternative equipment, or waiting until a line closure could be arranged were available. But what the judge was getting at in the passage challenged was the practical necessity, as perceived by the respondent at the time, of doing the job then and there, ie getting access from the track below and using the only available (aluminium) ladder. In my view the judge was entitled to draw such conclusions from acceptance of the following evidence of the respondent (Black 29):

Q. To get up to do that job did you have to work near the track?
A. Yes.
Q. Was that a matter that was a concern for you?
OBJECTION. UPHELD
Q. How did you feel about that?
A. I wasn’t real, at any time (1) working in the rain is no good and (2) because of the job I had to do to get that squeezed off because the gyprock was coming in the next day and he wanted to sheet the walls and I really didn’t want to squeeze it off that afternoon, I wanted to probably do it another time but they said oh you’ve got to the gyprock was there and he said oh they’re coming tomorrow and you’ve got to test it and I wanted to test the water pipes for leaks and things so I had to get up there and squeeze that off.

36 In my view it was well open to the judge to accept this evidence and to make the findings I have already referred to. I would reject the SRA’s challenge to them.

37 However, the findings do not assist the respondent in his case against SRA. Neither the findings nor the evidence sheeted home to SRA involvement in any part of the building program. The identity of “he” and the “they” referred to in the respondent’s evidence was not explored at trial. I infer that it was Abigroup, because there is no suggestion that railway staff was involved in the site work. Abigroup was responsible for contract administration including (specifically) definition of working areas and arranging “power off” (Blue 300, 237-41, Black 124, 128). The respondent was the senior Sydney Plumbing employee on site from day to day.

Station master’s refusal to shut off power

38 The trial judge held that there was uncontested evidence from the respondent that he had made a suggestion or request to the station master at one stage during the job that the lines should be closed and the power shut off, and the station master had told him that there was no way that this could be done (Red 36T-V).

39 SRA correctly submits that this finding misunderstands the evidence.

40 The respondent gave evidence of a conversation with the station master that occurred some time before the day of the accident. The respondent had to put pipes above the power lines and underneath the amenities block. The work was to take place in the very early hours of the morning. The respondent said (Black 26):

A. I spoke to him about how I had to get up there to put these pipes in and that it was going to be a problem because there was power lines up there.
Q. What did you say to him?
A. I said to him “Is there any possibility of shutting this down or doing this job at night because it will be ---“.
Q. What did he say.
A: He just looked at me and virtually, he said ‘there’s no way that I’ve got anything to do with that”.

41 In my view the appellant’s criticism of the finding at 36T-V is justified. The station master had not refused assistance, nor contributed in any way to the subject accident that occurred an unidentified number of days later. The station master was merely indicating that it was not his responsibility to arrange track closure. The evidence showed that this responsibility lay with Abigroup, to the knowledge of the respondent. The respondent was aware of two arranged shut downs at night which had been organized by Abigroup (Black 115-6, 124, 128, 133-4). Doubtless the contact would have been with someone at SRA with wider responsibilities than the station master at Yagoona. Setting up a line closure required quite a few weeks of notice and organization (Red 32L).

Inference that SRA servants saw respondent moving with the aluminium ladder to the site where the accident occurred

42 SRA submits that what the trial judge described as “an inferential finding of fact” about this was in reality mere speculation.

43 The primary evidence was certainly meagre. The respondent said that he ran into the station master “all day every day … the station master was usually in the temporary office …” (Black 21). In cross-examination, the respondent said that “there was a lot of people around, it was that time of the day”, but he could not be sure whether he recalled seeing anybody with an SRA uniform on the platform at the time he walked along with the ladder (Black 94). Since the station was busy at 2.30pm on a weekday afternoon this might suggest that SRA staff were engaged in selling tickets or other duties that could have prevented them from seeing the respondent and his assistant walking down the track carrying the aluminium ladder.

44 The finding that “servants of [SRA] working at the platform of the station were aware of the activity of the plaintiff and his fellow worker” was based upon a rebuttable inference stemming from the evidence that the respondent and his assistant could have been seen as they walked past with the ladder and an inferential conclusion drawn from it when SRA called no evidence to rebut that inference (pars (b) and (c) above)

45 However, the judge also indicated that a further basis for his inference that SRA knew “that a person such as the plaintiff would have to be there to perform the work desired” was because the plaintiff “was performing work to plans not in evidence that would require a person such as the plaintiff to work at the position that the plaintiff worked on the day of the accident” (par (b). I have already indicated why this latter conclusion was not open.

46 Once the latter prop is removed, it becomes necessary for this Court to revisit the issue. In my view it was not open to infer that the respondent was actually seen by a responsible SRA employee such as the station master. The case had been opened at trial on the basis that the respondent would have been concerned to get the job done as quickly as possible so that he could get away from the tracks as soon as possible. He described the job in evidence as a “two minute job”.

47 I hasten to add that, if I am wrong on this, and if the primary judge’s inference stood, it would still not follow that breach of duty was established. This is a convenient point to return to the broader issue of the scope of the SRA’s duty as occupier.

Scope of SRA’s duty as occupier

48 An occupier of premises owes what is compendiously described as a non-delegable duty of care to persons coming lawfully upon the premises (see eg Kondis v State Transport Authority (1984) 154 CLR 672 at 686). But it remains a duty to see that reasonable care and skill is exercised in making the premises safe (ibid). It is not a strict liability. The reasonableness of the occupier’s conduct is to be measured having regard to the assumption that entrants will take reasonable care for their own safety (Phillis v Daly (1988) 15 NSWLR 65 at 74, David Jones Ltd v Bates [2001] NSWCA 233).

49 No one suggests that it is unreasonable for a railway authority to have electrified power lines above its tracks.

50 The respondent knew the dangers involved in the task that he embarked upon. He had sought to minimize them by using a wooden ladder, but a phone call to his employers’ store revealed that none was in stock at the time. He decided to go ahead in the manner that he did. He did not seek or obtain the permission of the station master or anyone from Abigroup. One might infer that he realized that it would not have been forthcoming, although this was not explored at trial.

51 SRA had no responsibility for the building work or its coordination. That rested with Abigroup. SRA’s relationship with the respondent stemmed from its position as occupier of the whole site, the tracks in particular. Through its employees, SRA knew that the respondent and others were using the track as a means of getting to and from the building site from the carpark. This would have been very relevant if the respondent had been struck by a train. But that was not how he met his injury. Merely because the respondent moved across and along the tracks at various times did not put SRA on notice that he was likely to erect an aluminium ladder near live wires well out of reach of a pedestrian. An occupier’s duty of care does not necessarily extend to risk arising from an entrant deliberately behaving in a foolhardy or reckless manner (Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141).

52 Notwithstanding the trial judge’s passing reference to “plans not in evidence” there was nothing in the evidence to indicate that any subcontractor had contracted to do work on the track that involved a risk of coming into contact with overhead power lines while they were electrified. It was contemplated by all concerned that any such dangerous work would be done when the tracks were closed and the power lines rendered safe. Power shut downs had been arranged (by Abigroup) when necessary.

53 I have already indicated that I reject the appellant’s challenge to the finding that the respondent felt that there was a need for the job to be done “then and there” and in the dangerous manner that he chose. But SRA had nothing to do with putting pressure upon the respondent to take a dangerous shortcut.

54 Taken at its highest, the respondent’s case was that the station master saw him walking towards the particular site with the aluminium and failed to direct or warn him not to go. He said that he would have stopped if such warning had been given. He said that if someone from SRA had told him not to bring the ladder on site then:

I would have had to have taken on board what he said and more than likely, I would not used it (sic) (Black 106).

55 In Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 a Telecom linesman was injured when he climbed a non-Telecom pole on industrial premises occupied by Northern Research Pty Ltd. Northern Research had asked Telecom to rectify a fault in a telephone service. Papatonakis went to the premises and decided to replace a faulty telephone line running between two buildings with supporting pole between them. He rested his ladder against a pole and climbed it. Unfortunately the flex supporting the pole snapped and he was thrown to the ground. The occupier was found to be in breach of its duty of care. However, that finding turned upon the fact that the occupier had replaced the Telecom wire with a much weaker flex and thereby created a hidden trap (see per Wilson J at 25, per Brennan and Dawson JJ at 30, per Deane J at 38). The justices in the High Court indicated that, had it not been for this unusual danger or hidden trap then the occupier would not have been liable to the skilled independent contractor. Thus, Brennan and Dawson JJ cited with approval a number of earlier cases:

…. where independent contactors who had been invited by occupiers to undertake work had failed to recover damages when they were injured because the premises proved to be unsafe in some respect …. The principle which these cases illustrate is this: where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind.

See also per Mason J at 20-21, per Wilson J at 25, per Deane J at 38.

56 The respondent was an experienced plumber. He had worked at other stations and had been working at Yagoona for about one month. He conceded in cross-examination that he had been taught about safety at work, that he knew that electricity was dangerous and that it was a particular risk at the Yagoona site. He knew that he ought not to have been using a metal ladder because he knew that if it came into contact with the overhead lines some harm would come to him. He was aware that there had been two line closures earlier, organized for the purpose of safe performance of work. He acknowledged that he could have inquired about a line closure in order to perform the job.

57 In these circumstances, I cannot hold that SRA was negligent in failing to stop or warn him, even if it is assumed that (a) the case was run on this basis (a proposition the appellant disputes: see Tr pp69-70) and (b) such action would have averted the accident (see Derrick v Cheung [2001] HCA 48 at [13]).

58 In considering the issue of breach on SRA’s part, it is appropriate to record that all concerned (including the parties to this appeal and Abigroup) knew of the options for performing the particular job or at least ought to have known them if they turned their minds to them. SRA accepts that the pipe could not have been left open indefinitely. This still left the options of gaining access from above, or coming at it from below, as the respondent did (either before or after arranging for the electrified line to be shut off temporarily). Since there were safe options and since contract coordination was never SRA’s responsibility and since the dangers of doing the task in the manner adopted were quite patent to all concerned then I am unable to conclude that SRA breached any duty of care.

59 In light of my conclusion as to breach, it is unnecessary to consider the remaining issues raised by the appellant. They included challenges relating to duty of care, causation, contributory negligence and damages. There was also a challenge to the rejection of an item of evidence.

60 During the hearing the Court was informed that approximately one-third of the verdict has been paid. The appellant sought an order for restitution (Tr p37). We were told that the parties would be able to agree on interest calculations.

61 I propose the following orders:

1. Appeal allowed.

2. Set aside the verdict and judgment against the appellant and in lieu thereof enter a verdict and judgment in favour of the appellant against the respondent.

3. Respondent to pay appellant’s costs of the proceedings in the District Court and in the Court of Appeal and to have a certificate under the Suitors’ Fund, if qualified.

I agree with Mason P.

I agree with Mason P.

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